Charles Duke Yonge.

The Constitutional History of England from 1760 to 1860 online

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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

It was, therefore, with the almost unanimous approval of both parties
that the bill framed for the suppression of the Association was
received. The framing of such a bill was not unattended by difficulties,
as Peel acknowledged,[206] since "no one wished to declare that every
political meeting was illegal;" while at the same time it was necessary
to guard against "having its enactments evaded, since a more dangerous
precedent than the successful evasion of acts of the Legislature could
scarcely be conceived." But the measure, as it was proposed, skilfully
steered clear of these difficulties. It met them by intrusting "the
enforcement of the law to be enacted to one person alone." The bill
proposed "to give to the Lord-lieutenant, and to him alone, the power of
suppressing any association or meeting which he might think dangerous to
the public peace, or inconsistent with the due administration of the
law; together with power to interdict the assembly of any meeting of
which previous notice should have been given, and which he should think
likely to endanger the public peace, or to prove inconsistent with the
due administration of the law." And farther, "to interdict any meeting
or association which might be interdicted from assembling, or which
might be suppressed under this act, from receiving and placing at their
control any moneys by the name of rent, or any other name." But the act
was not to be one of perpetual duration. It could not be concealed that
such a prohibition or limitation of the general right of public meeting
and public discussion was a suspension of a part of the constitution;
and therefore the ministers were content to limit its operation "to one
year and the end of the then next session of Parliament," feeling
"satisfied that there would be no objection to continue it, if there
should be any necessity for its continuance." And this limitation was a
substantial mitigation of its severity. It made the bill, as Mr. Stanley
correctly described it, "not a permanent infringement on the
constitution, but a temporary deviation from it, giving those powers
which were necessary at the moment," but not maintaining them an hour
longer than they were necessary.

And this seems to be the course most in accordance with the spirit of
the constitution, with former practice, with common-sense. Deeds which
violate the letter of the law can be dealt with by the law. But actions
or courses of action which, even if they may be thought to overstep the
law, transgress it so narrowly as to elude conviction, can only be
reached by enactments which also go in some degree beyond the ordinary
law; and, so going beyond it, are to that extent encroachments on the
ordinary privileges and rights of the subject, and suspensions of the
constitution. But the very term "suspension" shows that the power
conferred is but temporary, otherwise it would be synonymous with
abrogation. And all parties may wisely agree, as they did in this
instance, to a temporary suspension of the people's rights, though there
would be none to whom their permanent abrogation would not be

The bill, then, for the suppression of the Association passed with
universal approval, and it may be regarded as furnishing a model for
dealing with similar associations, if ever they should arise. And as
soon as it was passed Mr. Peel introduced the greater measure, that for
the repeal of the disabilities. In drawing the necessary bill the
ministers had had two questions of special importance to consider:
firstly, whether it should be unlimited concession which should be
granted, such as would throw open to the Roman Catholics every kind of
civil office; and, secondly, whether it should be accompanied by any
other measure, which might render it more palatable to its adversaries,
as diminishing a portion at least of the dangers which those who
regarded the question in a purely political light most apprehended. On
the first point it was determined that, with the exception of three
civil offices, those of the Lord Chancellors of England and Ireland and
the Lord-lieutenant of Ireland,[207] and some of a purely ecclesiastical
character, such as the Judge of the Court of Arches, every kind of
preferment should be opened to the Roman Catholics.[208] The declaration
against Transubstantiation and the oath of supremacy, certain
expressions in which were the obstacles which had hitherto kept the
Roman Catholics out of office and out of Parliament, were to be
repealed, and another to be substituted for them which should merely
bind him who took it to defend the King, to maintain the Protestant
succession, and to declare that "it was not an article of his faith, and
that he renounced, rejected, and abjured the opinion, that princes
excommunicated or deposed by the Pope might be deposed and murdered; and
that he disclaimed, disavowed, and solemnly abjured any intention to
subvert the present Church Establishment as settled by law within this
realm, and that he would never exercise any privilege to which he was or
might become entitled to disturb or weaken the Protestant religion or
Protestant government in this kingdom."[209]

The second question was, it will probably be confessed, even more
important. Pitt, who had always contemplated, and had encouraged the
Irish Roman Catholics to contemplate, the abolition of their political
disabilities as an indispensable appendage to, or, it may be said, part
of the Union, had designed, farther, not to confine his benefits to the
laymen, but to endow the Roman Catholic clergy with adequate stipends, a
proposal which was received with the greatest thankfulness, not only by
the Irish prelates and clergy themselves, but also by the heads of their
Church at Rome, who were willing, in return, to give the crown a veto on
all the ecclesiastical appointments of their Church in the two
islands.[210] The justice of granting such an endowment could hardly be
contested. The Reformation in Ireland, if what had taken place there
could be called a reformation at all, had been wholly different from the
movement which had almost extinguished Popery in England. The great
majority of the Irish people had never ceased to adhere to the Romish
forms, and the Reformation there had been simply a transfer of the
property of the Romish Church to the Church of England, unaccompanied by
any corresponding change of belief in the people, who had an undeniable
right to claim that the state, while making this transfer, should not
deprive of all provision the clergy to whose ministrations they still
clung with a zeal and steadiness augmented rather than diminished by the
discouragements under which they adhered to them.

The policy of granting such endowment was equally conspicuous. No
measure could so bind the clergy to the government; and no such security
for the loyalty and peaceful, orderly behavior of the poorer classes
could be provided, as might be expected from the attachment to the
government of those who had over them an influence so powerful in its
character and so unbounded in its strength as their priests. And the
Duke of Wellington, who had at one time been himself the Irish
Secretary, and, as an intimate friend of Lord Castlereagh, who held that
office at the time of the Union, had a perfect knowledge of what had
been intended at that time - and who was, of course, aware of the very
decided favor which the House of Commons had so lately shown to the
project - proposed to follow out Pitt's plan in that particular, and to
connect a provision[211] for the Roman Catholic clergy with the removal
of their political disabilities from the laymen. Unluckily, Peel, who,
throughout the whole transaction, was, of all the cabinet, the
counsellor on whose judgment he most relied, took a different view of
the expediency of making such a provision, having, indeed, "no objection
to it in point of principle." But he saw many practical difficulties,
which he pressed on the Duke with great earnestness. He argued that for
the government "to apply a sum of money to the payment of the ministers
of the Church of Rome in Ireland, granting a license for the performance
of their spiritual functions, would be a virtual and complete
supersession, if not repeal, of the laws which prohibit intercourse with
Rome;" and asked, "Could the state affect to be ignorant that the bishop
whom it paid derived his right to be a bishop from the See of Rome?"
Another difficulty he found in the apprehension that "the admission of
the right of the Roman Catholic clergy to an endowment might produce
similar claims on the part of the Dissenters in England, who contribute
in like manner to the support of their own religion and of the
established religion also." He suggested, farther, that, if the Roman
Catholic priest were allowed, in addition to his stipend, "to receive
dues, Easter offerings, etc., from his parishioners, his condition would
then be better than that of the ministers of the Established Church in
many of the parishes in Ireland." And, finally, he urged the practical
objection, that the endowment would greatly strengthen the opposition to
the whole measure, by the reluctance which, "on purely religious
grounds," many would feel to the endowment of the Roman Catholic faith,
who would yet be inclined to acquiesce in the removal of the
disabilities, "on grounds rather political than religious." He was "not
insensible to the importance of establishing some bond of connection
between the Roman Catholic clergy and the state;" but he believed that
the omission of a provision for their endowment "was important to the
ultimate success of the government in proposing the measure before

It is not probable that the Duke was greatly influenced by the first, or
what may be called the constitutional, objection - that any concert with
the Papal Court with respect to the appointments or endowments of its
clergy would be a violation of the act which prohibited any intercourse
with Rome. The removal of the disabilities required the repeal of one
act of Parliament; and, if the holding communications with Rome on the
subject of clerical appointments should be so construed as to require
the repeal of another, it would hardly seem that there could be any
greater violation of or departure from the principles of the
constitution in repealing two acts than in repealing one. As to the
second of Peel's objections, the English Dissenters could not possibly
be said to stand on the same ground as the Irish Roman Catholics, since
their ministers had certainly never been deprived by any act of the
state of any provision which they had previously enjoyed; but their
position as unendowed ministers was clearly one of their own making. The
possible inferiority in point of emolument of some of the Protestant
cures in Ireland to that which might be enjoyed by some of the Roman
Catholic clergy could hardly be regarded as the foundation of any
argument at all, since no law had ever undertaken, or ever could
undertake, to give at all times and under all circumstances equal
remuneration to equal labors. But the consideration last suggested was
exactly the one to influence such a mind as that of the Duke of
Wellington, generally contented to deal with a present difficulty. He
was determined to carry Emancipation, because he saw that the Clare
election had made it impossible to withhold or even to delay it; and,
being so determined, he was desirous to avoid encumbering it with any
addition which might increase the opposition to it. At the same time he
was far from being sanguine of its effect, "with whatever guards or
securities it might be accompanied, to pacify the country or to avert
rebellion,"[212] which, in his apprehension, was undoubtedly impending;
and, under the influence of these combined feelings, he eventually
withdrew that clause from the bill. It was accompanied by another bill,
disfranchising the forty-shilling freeholders in Ireland. They were a
class of voters sunk in the deepest poverty, and such as certainly could
not well be supposed capable of forming, much less of exercising, an
independent judgment on political matters. Yet this bill is remarkable
as having been the only enactment passed since the Revolution to narrow
the franchise. It had no opposition to anticipate from English or Scotch
members, and was accepted by the Irish members as the price of

No measure that had ever been framed since the Revolution had caused
such excitement in the country; but the preponderance of feeling in its
favor was equally marked in both Houses of Parliament. In the House of
Commons 320 supported it, while only 142 could be marshalled against it.
In the House of Lords 213 divided for it against 109. And in April it
received the royal assent.

The general policy of removing the disabilities it is not necessary to
discuss here. It is quite clear that the Clare election had rendered it
impossible to maintain them. And if some of those who judge of measures
solely by their effects still denounce this act, as one which has failed
in its object of tranquillizing Ireland, many of those who admit the
failure ascribe it to the omission to accompany it by one securing a
state endowment for the Roman Catholic clergy, pronouncing it, without
that appendage, a half measure, such as rarely succeeds, and never
deserves success. However that may be, it is certain that the measure,
coupled with the repeal of the Test Act of the previous year, was one
which made a great and permanent change in the practical working of the
constitution of the kingdom, as it had been interpreted for the last one
hundred and fifty years. Of that constitution one of the leading
features, ever since the Restoration, had been understood to be the
establishment and maintenance of the political as well as the
ecclesiastical ascendency of the Church of England. On that ascendency
the repeal of the Test Act in 1828 had made the first, and that a great,
inroad, and the present statute entirely abolished it as a principle of
government. So far as political privileges went, every Christian sect
was now placed on a footing of complete equality. But so to place them
may fairly be regarded as having been required not only by justice and
expediency, but by reasons drawn from the history of the nation and from
the circumstances under which these disabilities had been imposed.
Before the Rebellion no one was excluded from the English Parliament on
account of his religion, whether he was a Roman Catholic, a
Presbyterian, or a member of any other of the various sects which were
gradually arising in the country. It was not till after the Restoration
that a recollection of the crimes of the Puritans, when they had got the
upper-hand, and the fear of machinations and intrigues, incompatible
with the freedom and independence of the people, which were imputed to
the Roman Catholics, gave birth to the statutes depriving both
Protestant and Roman Catholic Non-conformists of all legislative and
political power. The restrictions thus imposed on the Presbyterians and
other Protestant sects had, as we have seen, been gradually relaxed by a
periodical act of indemnity. Indeed, after the Union with Scotland, it
was impossible with any show of consistency to maintain them, since, as
it has been already pointed out, after Presbyterianism had been
recognized as the established religion of Scotland, it would have seemed
strangely unreasonable to regard it as a disqualification on the
southern side of the Border. But, as long as the Stuart princes were
from time to time disquieting the government by their open invasions or
secret intrigues, no such relaxation could with safety be granted to the
Roman Catholics, since it could hardly be expected that they would
forbear to employ any power which they might acquire for the service of
a prince of their own religion. That danger, however, which ever since
1745 had been a very shadowy one, had wholly passed away with the life
of the last Stuart lay prince, Charles Edward; and his death left the
rulers of the kingdom and advisers of the sovereign free to take a
different and larger view of their duty to the nation as a whole.

It was notorious that the number of Non-conformists was large. In the
middle of the last century it had received a considerable accession
through the institution of the new sect of Wesleyan Methodists; which,
through the supineness of the clergy of the Established Church in that
generation, had gradually increased, till it was estimated that the
various Dissenting sects in England equalled at least half the number of
the members of the Established Church. In Wales they were believed to
form the majority. In Scotland three-fourths of the people were
Presbyterians; and in Ireland the Roman Catholics outnumbered the
Protestants in nearly the same proportion. Taking England, Wales,
Scotland, and Ireland together, a calculation which reckoned the
different sects of Protestant and Roman Catholic Non-conformists united
at half the entire population would probably not have erred very widely
from the truth.

It must have been the aim of every statesman deserving of the name to
weld these different religious parties into one harmonious whole, as far
as their civil position went. And measures which had that tendency could
not be foreign to the constitution, properly understood. A constitution
which confines its benefits to one-half of a nation hardly merits the
title of a constitution at all. For every constitution ought to extend
its protection and its privileges equally to every portion of the
people, unless there be some peculiarity in the principles or habits of
any one portion which makes its participation in them dangerous to the
rest. It had undoubtedly been the doctrine of Pitt, and of the greater
part of those who since his time had held the reins of government, that
if any portion of the King's subjects did cherish a temper dangerous to
the rest, it was because they were debarred from privileges to which
they conceived themselves to have a just right, and that their
discontent and turbulence were the fruit of the restrictions imposed on
them. In proposing to remove such a grievance Pitt certainly conceived
himself to be acting in accordance with the strictest principles of the
constitution, and not so much innovating upon it as restoring it to its
original comprehensiveness. And so of the measure, as it was now
carried, it will apparently be correct to say that, though it did make
an important change in the practical working of the constitution, it
made it only by reverting to the fundamental principles of civil and
religious liberty, to which every subject had a right; which had only
been temporarily restrained under the apprehension of danger to the
state, and which the cessation of that apprehension made it a duty to
re-establish in all their fulness.

But it is by no means clear that in the conduct of the measure the
constitution was not violated in one very important point, the proper
relation subsisting between a constituency and its representative, by
Mr. Peel's resignation of his seat for the University of Oxford. That he
was sensible that the act stood in need of explanation is proved by the
careful statement of the motives and considerations that determined him
to it, which he drew up twenty years afterward. They were of a twofold
character. To quote his own words: "When I resolved to advise, and to
promote to the utmost of my power, the settlement of that question, I
resolved at the same time to relinquish, not only my official
station,[213] but the representation of the University of Oxford. I
thought that such decisive proofs that I could have no object, political
or personal, in taking a course different from that which I had
previously taken, would add to my influence and authority, so far, at
least, as the adjustment of the particular question at issue was
concerned." "I cannot deny that in vacating my seat I was acting upon
the impulse of private feelings, rather than upon a dispassionate
consideration of the constitutional relations between a representative
and his constituents. I will not seek to defend the resolution to which
I came by arguments drawn from the peculiar character of the academic
body, or from the special nature of the trust confided to its members;
still less will I contend that my example ought to be followed by others
to whom may be offered the same painful alternative of disregarding the
dictates of their own consciences, or of acting in opposition to the
opinions and disappointing the expectations of their constituents. I
will say no more than that my position was a very peculiar one, that I
had many painful sacrifices to make, and that it would have been a great
aggravation of them, if it could have said with truth that I was
exercising an authority derived from the confidence of the University to
promote measures injurious, in her deliberate judgment, either to her
own interests or to those of the Church."

No one would willingly censure too severely an act dictated by a sense
of honor, even if somewhat overstrained and too scrupulously delicate;
but when Mr. Peel speaks of "defending" or not defending his deed, he
clearly admits it to be one open to impeachment. And when he forbears to
"contend that his example ought to be followed," he seems practically to
confess a consciousness that any defence against such impeachment must
fail; while the last sentence quoted above involves an assertion that a
constituency (in this instance one of the two most important
constituencies in the kingdom) could be justified in regarding a measure
required by the safety, or at least by the welfare, of the state, as
injurious to its own interests; and so far admits a possible severance
between the interests of a particular class or body and those of the
whole community, which can have no real existence. That, however, is not
the point to be investigated here. The charge, as it seems, to which Mr.
Peel's deed lays him open is, that by it he lowered the position and
character of a member of Parliament from those of a representative to
those of a delegate. It was an adoption of the principle laid down for
his own guidance by a colleague of Mr. Burke above fifty years before,
and indignantly repudiated by that great political philosopher, as
proceeding from an entire misapprehension of the rights of a
constituency and of a member[214] of Parliament. He told the electors of
Bristol that "when they had chosen their member, he was not a member of
Bristol, but a member of Parliament; and that if the local constituent
should have an interest, or should form an opinion, evidently opposite
to the real good of the rest of the community, the member for that place
ought to be as far as any other from any endeavor to give it effect;"
that a representative "owes to his constituents, not his industry only,
but his judgment, and betrays instead of serving them, if he sacrifices
it to their opinion." And in so saying he carried with him the
concurrence and approval of all his contemporaries whose sentiments on
such a question were entitled to weight.

In the States-general of France each member was, by the original
constitution of that body, a delegate, and not a representative. He
could not even remonstrate against the most oppressive grievance of
which the previous instructions of the constituent body had not
instructed him to complain; and this limitation of his duties and powers
was, undoubtedly, one very principal cause which led to the
States-general so rapidly falling into utter disrepute. It was no light
thing to take a step which had a tendency to bring down the British

Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 27 of 43)