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]."