Not that the addition of these words at all diminished the dissatisfaction with which the great lawyer regarded the bill. On the contrary, he believed it to be not only a weapon wilfully put into the hands of the enemies of the Established Church, but a violation of the constitution, of which, as he regarded it "the existing securities were a part." He pointed out that "the King himself was obliged to take the sacrament at his coronation;" and he argued from this and other grounds that "the Church of England, combined with the state, formed together the constitution of Great Britain; and that the acts now to be repealed were necessary to the preservation of that constitution."
With every respect for that great lawyer, his argument on this point does not appear sustainable. For the bill in question did not sweep away securities for the Established Church, but merely substituted, for one which long disuse and indemnity had rendered wholly inoperative, a fresh security, which, as it would be steadily put in force, might fairly be expected to prove far more efficacious. And it can hardly be contended that it was not within the province of the Legislature to modify an existing law in this spirit and with this object, however important might be the purpose for which that law had originally been framed. Nay, it might fairly be argued that the more important that object was, the more were they who strengthened the means of attaining that object entitled to be regarded as faithful servants and supporters of the principle of the constitution.
The measure, however, relieved the Protestant Dissenters alone. Not only did Lord Eldon's amendment preserve the Christian character of the Legislature, but the requirement to sign the declaration against Transubstantiation, which was unrepealed, left the Roman Catholics still under the same disqualifications as before. But the days of those disqualifications were manifestly numbered. Indeed, many of those who had followed the ministers in their original resistance to the repeal of the Test Act had been avowedly influenced by the conviction that it could not fail to draw after it the removal of the disabilities affecting the Roman Catholics. As has been said before, the disabilities in question had originally been imposed on the Roman Catholics on political rather than on religious grounds. And the political reasons for them had been greatly weakened, if not wholly swept away, by the extinction of the Stuart line of princes. Their retention or removal had, therefore, now become almost wholly a religious question; and the late bill had clearly established as a principle that, though the state had a right to require of members of other religious sects that they should not abuse the power which might arise from any positions or employments to which they might be admitted, to the subversion or injury of the Established Church of England, yet, when security for their innocuousness in this respect was provided, it was not justified in inquiring into the details of their faith. And if this were to be the rule of government for the future, the conclusion was irresistible that a similar security was all that the state was justified in demanding from Roman Catholics, and that it could have no warrant for investigating their opinion on Transubstantiation, or any other purely theological tenet. There could be no doubt that the feelings of the public had been gradually and steadily coming round to this view of the question. The last House of Commons had not only passed a bill to remove Roman Catholic disabilities (which was afterward thrown out in the House of Lords), but had also passed, by a still larger majority, a resolution, moved by Lord Francis Leveson Gower (who was now the Secretary for Ireland), in favor of endowing the Roman Catholic priests in Ireland. And at the late general election the opinions of the candidates on what was commonly called Catholic Emancipation had been the great cardinal question with a great number, probably a majority, of the constituencies.
It may be remarked that it was not the Test Act which excluded Roman Catholics from Parliament, but a bill which, fifteen years later, had been passed (probably under the influence of Lord Shaftesbury) at the time when the whole kingdom was excited by the daily expanding revelations of the Popish Plot.[198] And this bill had a loop-hole which was never discovered till now but the discovery of which totally changed the whole aspect of the question. Even before the bill repealing the Test Act had passed through all its stages, Sir Francis Burdett had again induced the House of Commons to pass a resolution condemning the continuance of the Roman Catholic disabilities; to which, however, the peers, by a far larger majority, refused their concurrence.[199] But, within a month of this division, the aspect of the whole question was changed by the shrewdness of an Irish barrister, who had discovered the loop-hole or flaw in the bill of 1678 already alluded to, and by the energy and promptitude with which he availed himself of his discovery. Mr. O'Connell had a professional reputation scarcely surpassed by any member of the Irish Bar. He was also a man of ancient family in the county of Kerry. And, being a Roman Catholic, he had for several years been the spokesman of his brother Roman Catholics on most public occasions. He now, on examination of the bill of 1678, perceived that, though it forbade any Roman Catholic from taking a seat in either House of Parliament, it contained no prohibition to prevent any constituency from electing him its representative. And when, on the occasion of some changes which were made in the cabinet, the representation of the County Clare was vacated by its member, Mr. Vesey Fitzgerald, accepting the office of President of the Board of Trade, O'Connell instantly offered himself as a candidate in opposition to the new minister, who, of course, sought re-election.
Mr. Fitzgerald was a man who had always supported the demands of the Roman Catholics; he was also personally popular, and had the undivided support of nearly all the gentlemen and principal land-owners of the county, in which he himself had large property. But O'Connell's cause was taken up by the entire Roman Catholic priesthood; addresses in his favor were read at the altars of the different churches; and, after five days' polling, Mr. Fitzgerald withdrew from the contest. The Sheriff, in great perplexity, made a special return, reporting that "Mr. Fitzgerald was proposed, being a Protestant, as a fit person to represent the county in Parliament; that Mr. O'Connell, a Roman Catholic, was also proposed; that he, Mr. O'Connell, had declared before the Sheriff that he was a Roman Catholic, and intended to continue a Roman Catholic; and that a protest had been made by several electors against his return."
It was accepted as a return of O'Connell, who, however, made no attempt to take his seat, though when he first stood he had assured the electors that there was no law to prevent him from doing so; but the importance of his success was not to be measured by his actual presence or absence in the House of Commons for the remainder of a session. It had made it absolutely impossible to continue the maintenance of the disabilities; what one Irish constituency had done, other Irish constituencies might be depended on to do.[200] And it was quite certain that, as opportunity offered, almost every constituency in Munster and Connaught, and many in Leinster, would follow the example of Clare, and return Roman Catholic representatives; while to retain a law which prevented forty or fifty men duly elected by Irish constituencies from taking their seats must have appeared impossible to all but a few, whom respect for the undoubted sincerity of their attachment to their own religion and to the constitution, as they understood it, is the only consideration which can save them from being regarded as dangerous fanatics. At all events, the ministers were not among them. And the Duke of Wellington, though he had previously hoped, by postponing the farther consideration of the question for a year or two, to gain time for a calmer examination of it when the existing excitement had cooled down,[201] at once admitted the conviction that the result of the Clare election had rendered farther delay impossible. In his view, and that of those of his colleagues whose judgment he estimated most highly, the Irish constituencies and their probable action at future elections were not the only parties whose opinions or feelings must be regarded by a responsible statesman; but to them must be added the constituencies of the larger island also, since, while, to quote the language of Mr. Peel, "the general election of 1826 had taken place under circumstances especially calculated to call
forth the manifestation of Protestant feeling throughout the country," they had returned a majority of members in favor of concession, as was proved by the recent division on Sir F. Burdett's motion. Moreover, apart from the merits or demerits of concession, taken by itself, there was a manifest danger that the keeping up of the excitement on the subject by a continued adherence to the policy of restriction might, especially among such a people as the Irish, so impulsive, and, in the lower classes, so absolutely under the dominion of the priests, kindle an excitement on other subjects also, still more difficult to deal with. It was even already certain that the Roman Catholic priests were endeavoring to tamper with the loyalty of the soldiers of their persuasion. Nor was it clerical influence alone that the government had to dread. A year or two before a Catholic Association had been formed, which included among its members all the wealthiest and ablest of the Roman Catholic laymen, noblemen, squires, and barristers. Its organization had been so skilfully conducted, and all its measures had been so carefully kept within the requirements of the law, that the crown lawyers, on being consulted, pronounced it impossible to interfere with it; and, by what may be called a peaceful agitation, it had attained such extraordinary power over the minds of the bulk of the Roman Catholics, that the Lord-lieutenant reported that "he was quite certain that they could lead on the people to open rebellion at a moment's notice, and that their organization was such that, in the hands of desperate and intelligent leaders, they would be extremely formidable[202]."
Under all these circumstances, the Duke had no hesitation in deciding that it had become absolutely necessary to concede the demands of the Roman Catholics and their supporters for a removal of their political disabilities. And it was equally obvious that, the more promptly the concession was made, the more gracious it would seem, and the greater was the probability of its having the conciliatory and tranquillizing effect the hope of which made it so desirable. He was not a man to lose time when he had once made up his mind. It was already too late in the session for anything to be done in 1828; but the Parliament had scarcely been prorogued before he put his views on the subject before the King, and began, in concert with the Home-secretary, to frame a bill such as he hoped might settle the long-agitated question, without doing more violence than was necessary to the feelings of those whose opposition or reluctance he was aware he should have to encounter: among whom was the King himself, who, though thirty years before he had, with an ostentation rather unbecoming, considering his position, put himself forward as an advocate of Emancipation, had subsequently changed his opinion, and had recently taken more than one occasion to declare that he had never doubted that, as the head and protector of the Protestant religion, he was bound to refuse his assent to any relaxation of the existing law.[203] The Duke, however, was too well acquainted with his royal master's character to apprehend any real firmness of resistance from him; but he knew that a great majority of the clergy, and no small portion of the country gentlemen, were conscientiously and immovably fixed in opposition to any concession at all, some refusing to regard the question in any but a purely religious light, and objecting to associate in the task of legislation for those whom they regarded as adherents of an idolatrous superstition; while those who mingled political reasoning with that founded on theology dwelt also on the danger to be apprehended to the state, if political power were given to those whose allegiance to the King was divided with another allegiance which they acknowledged to a foreign prelate. And he had presently an unmistakable proof afforded him how great was the strength of this party in the country. Peel was one of the representatives of the University of Oxford; and, as from his earliest enjoyment of a seat in Parliament he had been a prominent opponent of the Roman Catholic claims, he considered that it was to that maintenance of a policy identified in their eyes with that Protestant ascendency which his supporters took to be both the chief bulwark and one of the most essential parts of the constitution that he owed his position as their member. With a conscientiousness which was rather overstrained, and not quite consistent with the legitimate position of a member of the House of Commons as a representative, and not a delegate, he now conceived that his change of view on the subject made it proper for him to give his constituents an opportunity of making choice of some one else who should more faithfully represent them. He accordingly resigned his seat, offering himself at the same time for re-election. But he was defeated by a very large majority, though his competitor was one who could not possibly be put on a level with him either for university distinction or for parliamentary eminence.
Not the less, however, for all their difficulties and discouragements, did the ministers proceed in the course on which they had resolved. They inserted in the speech with which the King opened the session of 1829 a recommendation to the Houses "to take into consideration the whole condition of Ireland, and to review the laws which imposed civil disabilities on his Majesty's Roman Catholic subjects." And with as little delay as possible they introduced a bill to remove those disabilities. But there was another measure which they felt it to be indispensable should precede it. A previous sentence of the royal speech had described the Catholic Association as one "dangerous to the public peace, and inconsistent with the spirit of the constitution, keeping alive discord and ill-will among his Majesty's subjects, and one which must, if permitted to continue, effectually obstruct every effort permanently to improve the condition of Ireland." And the ministers naturally regarded it as their first duty to suppress a body which could deserve to be so described. They felt, too, that the large measure of concession and conciliation which they were about to announce would lose half its grace, and more than half its effect, if it could possibly be represented as a submission to an agitation and intimidation which they had not the power nor the courage to resist. They determined, therefore, to render such an imputation impossible, by previously suppressing the Association. It was evident that it could not be extinguished by any means short of an act of Parliament. And the course pursued, with the discussions which took place respecting it, show in a very clear and instructive manner the view taken by statesmen of the difference between what is loyal or illegal, constitutional or unconstitutional; their apprehension that conduct may be entirely legal, that is to say, within the letter of the law, but at the same time perfectly unconstitutional, outside of and adverse to the whole spirit of the constitution. The royal speech had not ventured to describe the Association as illegal. The Duke of Wellington expressly admitted that "in the original institution and formation of the society there was nothing strictly illegal."[204] And its founder and chief, Mr. O'Connell, had been at all times careful to inculcate on his followers the necessity of avoiding any violation of the law. But the speech had also declared the association to be "inconsistent with the spirit of the constitution." And its acts, as the Duke proceeded to describe them, certainly bore out that declaration. "Those acts consisted principally in levying a tax upon certain of his Majesty's subjects called Catholic rent, and this by means and acts of extreme violence; by appointing persons to collect these rents; and farther by adopting measures to organize the Catholic population; by appointing persons to superintend that organization; and by assuming to themselves the government of the country; and, still more, affecting to assume it. Besides, they expended this rent in a manner contrary to, and utterly inconsistent with, all law and order and the constitution of the country." No member of either House denied the accuracy of this description of the Association's proceedings. And if it were correct, it was incontrovertible that the denunciation of it as an utterly unconstitutional body was not too strong. Indeed, the fact of its "levying a tax" upon a portion of the King's subjects (to say nothing of the intimidation, amounting to compulsion, by which, as was notorious, it was in many instances exacted) was the assumption of one of the most important functions of the Imperial Parliament; it was the erection of an imperium in imperio, which no statesmen intrusted with the government of a country can be justified in tolerating. And this
was felt by the Opposition as well as by the ministers; by the Whigs as fully as by the Tories. The most eloquent of the Whig party, Mr. Stanley, was as decided as Mr. Peel himself in affirming that the existence of the Association was "inconsistent with the spirit of the constitution," and that it was "dangerous that the people of a country should look up to any public body distinct from the government, opposed to the government, and monopolizing their attachment and obedience."[205]
The Constitutional History of England From 1760 to 1860 Page 32