Chapter VIII (1)

Survey of the Reign of George III.--The Cato Street Conspiracy.--The Queen's Return to England, and the Proceedings against her.--The King Visits Ireland and Scotland.--Reform of the Criminal Code.--Freedom of Trade.--Death of Lord Liverpool.--The Duke of Wellington becomes Prime-minister.--Repeal of the Test and Corporation Act.--O'Connell is Elected for Clare.--Peel Resigns his Seat for Oxford.--Catholic Emancipation.--Question of the Endowment of the Roman Catholic Clergy.--Constitutional Character of the Emancipation.--The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned.

In the first month of 1820 George III. died. His had been an eventful reign, strangely checkered with disaster and glory; but, if we compare its close with its commencement, it was still more remarkably distinguished by a development of the resources and an increase in the wealth and power of the nation, to which the history of no other country in the same space of time affords any parallel.

Regarded from the first point of view, our successes greatly outweighed our disasters. The loss of our North American Colonies, the only event which can be so described, was far more than counterbalanced by our vast acquisitions in India, at the Cape of Good Hope, and Malta; while to our maritime supremacy, in the complete establishment of which Rodney and Nelson had crowned the work of Anson and Hawke, was now added a splendor of military renown far surpassing that achieved by any other of the nations which had borne their share in the overthrow of Napoleon.

The increase of our resources is sufficiently shown by a single fact. At his accession George III. found the kingdom engaged in the great seven years' war; one British army employed beyond the Rhine, another in India; fleets traversing the seas in every direction, capturing the Havana, in the West Indies; Manilla, in the East; and routing French squadrons in sight of their own harbors. While, to maintain these varied armaments, supplies were voted by Parliament in 1761 to what Lord Stanhope calls "the unprecedented amount of almost twenty millions." In 1813 the supplies reached nearly six times that amount,[182] and that prodigious sum was raised with greater ease than the revenue of 1761, the interest on the necessary loans being also lower than it had been on the former occasion.

The philosophical man of science will point with at least equal exultation to the great discoveries in art and science; to the achievements of the mechanic, the engineer, and the chemist; to the labors of Brindley and Arkwright and Watts, to which, indeed, this great expansion of the resources and growth of the wealth of the country is principally owing.

While, as the preceding chapters of this work have been designed to show, our political progress and advancement had been no less steady or valuable; yet, important from a constitutional point of view as were many of the labors of our legislators in these sixty years, they are surpassed in their influence on the future history of the nation, as well as in the reality and greatness of the changes which were produced by them in the constitution, by the transactions of the reigns of the next two sovereigns, though the two united scarcely equalled in their duration a quarter of that of their venerable father.

It has been seen how Pitt was baffled in his efforts to remodel the House of Commons, and to remove the disabilities under which the Roman Catholics labored, the reasons for which, even granting that they had been sufficient to justify their original imposition, had, in his judgment, long passed away. His pursuit of the other great object of his domestic policy, the emancipation of trade from the shackles which impeded its universal development, was rudely interrupted by the pressure of the war forced upon him by that very nation which he had desired to make the first partner, if one may use such an expression, in the prosperity which he hoped to diffuse by his commercial treaty with her. But, as in the case of other men in advance of their age, the principles which he had asserted were destined to bear fruit at a later period. And the mere fact of a change in the person of the sovereign seemed to make a change in the policy hitherto pursued less unnatural.

Yet, memorable as the reforms which it witnessed were destined to make it, no reign ever commenced with more sinister omens than that at which we have now arrived. The new King had not been on the throne a month, when a conspiracy was discovered, surpassing in its treasonable atrocity any that had been heard of in the kingdom since the days of the Gunpowder Plot; and, even before those concerned in that foul crime had been brought to punishment, the public mind was yet more generally and profoundly agitated by a scandal which, in one point of view, was still more painful, as in some degree involving the whole kingdom in its disgrace.

The marriage of the present sovereign to Mrs. Fitzherbert has already been mentioned. A few years afterward, in the year 1795, regarding that marriage as illegal, he had contracted a second with his cousin, the Princess Caroline of Brunswick. But, even in royal families, a more unfortunate alliance had never taken place. They had never met till she arrived in England for the wedding; and, as he had never professed any other motive for consenting to the match than a desire to obtain the payment of his debts, he did not think it necessary to disguise his feelings, or to change his habits, or even to treat her with decency for a single day. On his very first introduction to her he behaved to her with marked discourtesy.[183] Shortly after the marriage he formally separated himself from her, and, both before and after the separation, lived in undisguised licentiousness. She, on her part, indignant at his neglect and infidelity, and exasperated at the restrictions which he presently placed on her intercourse with their only child, made no secret of her feelings, and on many occasions displayed such disregard of the ordinary rules of prudence and propriety, that he had some color for charges of infidelity to her marriage vows which, after a few years, he brought against her. The King, her uncle, could not refuse to appoint a commission to investigate the truth of the accusation; but the commissioners unanimously acquitted her of any graver fault than imprudence. She was again received at court, from which she had been excluded while the inquiry was pending; but her husband's animosity toward her was not appeased. As time wore on, and as the King's derangement deprived her of her only protector, it even seemed as if he desired to give it all the notoriety possible, till at last, wearied out by his implacable persecution, she sought and obtained his permission to quit the country and take up her abode abroad. It was a most unfortunate resolution on her part. She fixed her residence in Italy, where she gradually learned to neglect the caution which she had observed in England, till, after a year or two, reports arose of her intimacy with a servant whom she had raised from a menial situation to that of the chief officer of her household, and whom she admitted to a familiarity of intercourse which others besides her husband thought quite incompatible with innocence. He sent agents into Italy to inquire into the truth of those rumors; and their report so greatly confirmed them that, even before the King's death, he laid it before the Prime-minister, with a demand that he should at once take steps to procure him a divorce, in which he professed to believe that the Princess herself would willingly acquiesce. He was so far correct, that her legal advisers were willing to advise her to consent to "a formal separation, to be ratified by an act of Parliament." But such an arrangement fell far short of the Prince's wishes. The Princess Charlotte, the heiress to his throne, had died in childbirth two years before, and he was anxious to be set free to marry again. The ministers were placed in a situation of painful embarrassment. There was an obvious difficulty in pointing out to one who already stood toward them in the character of their sovereign, and who must inevitably soon become so, that his own conduct made the prospect of obtaining a divorce from the Ecclesiastical Courts hopeless; and the only other expedients calculated to attain his end, "a direct application to Parliament for relief, founded upon the special circumstances of the case," or "a proceeding against the Princess for high-treason," were but little more promising. Indeed, it was afterward ascertained to be the unanimous opinion of the judges that the charge of high-treason could not be legally sustained, since the individual who was alleged to be the partner in the criminality imputed to her was a foreigner, and therefore, "owing no allegiance to the crown," could not be said to have violated it.[184]

He chafed under their resistance to his wish, and would have deprived them of their offices, could he have relied on any successors whom he might give them proving more complaisant; but, before he could make up his mind, the death of George III. forced upon both him and them the consideration of his and his wife's position, since it made it necessary to remodel the prayer for the royal family, and instantly to decide whether her name and title as Queen were to be inserted in it. He was determined that they should not be mentioned; and, as the practice of praying for a Queen Consort by name appeared not to have been invariable, they were willing to gratify him on this point, though it was evidently highly probable that she would consider this as a fresh insult, sufficient to justify her in carrying out a threat, which she had recently held out, of returning to England. Her ablest advisers did not, indeed, regard it in this light, since the prayer as now framed implored the Divine protection for "all the royal family" in general terms, in which she might be supposed to be included, and made no separate mention of any member of the family.[185] But, unfortunately, she was much more under the influence of counsellors who were neither lawyers nor statesmen, but who only desired to use her as a tool to obtain notoriety for themselves. A long negotiation ensued. It was inevitable that some application should be made to Parliament in connection with her affairs, since the annuity which had been settled upon her by Parliament in 1814, on the occasion of her departure from England, had expired with the life of the late King. And the ministers proposed that that annuity should now be raised from £35,000 to £50,000, on condition of her remaining abroad, having, by their positive refusal to concur in any proceedings against her while she remained abroad, extorted the King's acquiescence in this proposal, though he called it a "great and painful sacrifice of his personal feelings." They sought to conciliate her acceptance of it by mentioning her in it by her title of "Queen," and by coupling with it a sanction to her appointment of her law-officers, an Attorney and Solicitor General, an act which could only be exercised by a Queen. And, though a part of the condition of her residence abroad required that she should do so under some other title, that seemed only a conforming to an ordinary practice of royal princes on their travels. At the same time, the ministers stated frankly to Mr. Brougham, a lawyer of the highest reputation as an advocate, whom she had appointed her Attorney-general, that, if she should reject the offer, and come to England, as she had already announced her intention of doing, such a course would leave them no alternative, but would compel them to institute proceedings against her.

Eventually she preferred the advice of others to that of Mr. Brougham, or, as it may, perhaps, be more consistent with the real fact to say, she yielded to her own feelings of hatred of her husband, which, it must be confessed, were far from unnatural. She believed, or professed to believe, that he had more to dread from an exposure of his conduct than she had from any revelations of her actions; and, under this impression, in the spring she crossed the Channel and took up her residence in London. It was a step which seemed to Lord Liverpool to leave him no alternative, and, in consequence, he at once took the course which he had from the beginning conceived her arrival would render indispensable. He brought down to Parliament a royal message from the King, announcing that her return to England had made it necessary to communicate to the Houses documents relating to her conduct since her departure from the kingdom, which he recommended to their immediate and serious attention. He proposed the appointment by ballot of a committee of the House of Lords to examine those documents; and when the committee had reported that the documents containing "allegations deeply affecting the honor of the Queen, etc., ... appeared to the committee calculated to affect not only the honor of the Queen, but also the dignity of the crown and the moral feelings and honor of the country, so that in their opinion, they should become the subject of a solemn inquiry, which might be best effected in the course of a legislative proceeding," he introduced a "Bill of Pains and Penalties" to deprive her of her title of Queen, and to annul her marriage.

No one would willingly dwell on so melancholy and disgraceful a subject. As far as the Queen was concerned, a protracted investigation, during which a number of witnesses, favorable and unfavorable, were examined, left no doubt on the mind of almost all dispassionate people that the misconduct alleged against her had been abundantly proved. At the same time there was a feeling equally general that the King's treatment of her from the very beginning of their married life had disentitled him to any kind of relief; and this sentiment was so strongly shown by the gradual diminution of the majority in favor of the bill, as it proceeded through its several stages, that Lord Liverpool, who had already abandoned the clause annulling the marriage, eventually withdrew the whole bill, perceiving the impossibility of inducing the House of Commons to pass it when it should go down to that House.

No act of Lord Liverpool's ministry has been attacked with greater bitterness than that of allowing any proceedings whatever to be taken against the Queen, partly on the ground that, however profligate her conduct had been, it had certainly not been more gross than that of her husband, which had provoked and given opportunity for her errors; partly because a great scandal was thus published to the world, and a shock was given to the national decency and morality which the ministers, above all men, were bound to avoid; partly, also, because the mode of proceeding adopted was alleged to be wholly unprecedented; and because, as was contended, the power of Parliament ought not to be invoked to inflict penalties which, if deserved, should have been left to the courts of law. It cannot be denied that there is weight in these objections; but, in estimating their force, it must be considered that every part of the conduct of the ministers showed that their motive was not the gratification of the King's private feelings, whether directed to the object of indulging his enmity against his wife or to that of obtaining freedom to contract a second marriage; on the contrary, so long as the Queen remained abroad, no language could be more distinct, consistently with the respect due to his royal dignity, than that in which they expressed to him their insurmountable objection to every mode of proceeding against her which he had suggested, founded almost equally on considerations of "the interests of his Majesty and of the monarchy,"[186] and "the painful obligation" under which they conceived themselves to lie "of postponing their regard for his Majesty's feelings to great public interests."

But when the Queen came to England the case was greatly altered. The question now forced on the consideration of the cabinet was, not the mode of avoiding an intolerable scandal, but the choice between two scandals, both of the gravest character. The scandal to be dreaded from the revelations of the conduct of both King and Queen, that could not fail to result from the investigation which, in justice, must precede any attempt to legislate on the subject, was, indeed, as great as ever; but it had now to be compared with the alternative scandal of allowing a woman lying under such grievous imputations to preside over the British court, as, if resident in England, and in undisturbed possession of her royal rank, she of necessity must preside. The consequence would evidently have been that the court would have been deserted by all who could give lustre and dignity to it by their position and character; and, in the slights thus offered to her, royalty and the monarchy themselves would seem to be brought into contempt. The latter scandal, too, would be the more permanent. Grievous and shameful as might be the disclosures which must be anticipated from an investigation in which the person accused must be permitted the employment of every means of defence, including recrimination, the scandal was yet one which would, to a certain extent, pass away with the close of the inquiry. But, if she were left undisturbed in the enjoyment of her royal rank, and of privileges which could not be separated from it, that scandal would last as long as her life--longer, in all probability, than the reign. It is hardly too much to say that the monarchy itself might have been endangered by the spectacle of such a King and such a Queen; and the ministers might fairly contend that, of two great dangers and evils, they had, on the whole, chosen the least.

Lastly, if the Queen's conduct was to be investigated, though the mode adopted was denounced as unconstitutional by the Opposition (for, not greatly to their credit, the leading Whigs made her guilt or innocence a party question), it does not seem to deserve the epithet, though it may be confessed to have been unsupported by any direct precedent. Isabella, the faithless wife of Edward II., had, indeed, been condemned by "the Lords" to the forfeiture of many of the estates which she had illegally appropriated; but it does not appear that her violation of her marriage vows, or even her probable share or acquiescence in her husband's murder, formed any portion of the grounds of her deprivation. And the Parliament which attainted Catherine Howard proceeded solely on her confession of ante-nuptial licentiousness, without giving her any opportunity of answering or disproving the other charges which were brought against her. Unprecedented, therefore, the course now adopted may be admitted to have been. But it was the only practicable one. The different minutes of the cabinet, which the Prime-minister laid before the King, established most conclusively the correctness of their opinion that no impeachment for high-treason could lie against her. She could not be an accomplice in such an offence of one who, being a foreigner, could not have committed it. It was equally impossible for the King to sue for a divorce, as one of his subjects might have done; because it was the established practice of Parliament not to entertain a bill of divorce without the judgment of the Ecclesiastical Court being previously obtained and produced. And, under the circumstances, to obtain from the Ecclesiastical Court such a sentence as could alone lay the foundation for a bill of divorce was clearly out of the question.

The case was a new and extraordinary one, and, being such, could only be dealt with in some new and extraordinary manner. And in all such cases an appeal to Parliament seems the most, if not the only, constitutional mode of solving the difficulty. Where the existing laws are silent or inapplicable, the most natural resource clearly is, to go back to the fountain of all law; that is, to the Parliament, which alone is competent to make a new law. In one point of view the question may seem unimportant, since we may well hope that no similar case will ever arise to require the precedent now set to be appealed to; but not unimportant, if it in any way or degree contributes to establish the great principle, that the solution of all matters of moment to the state belongs to the Parliament alone: a principle which, in its legitimate completeness, carries with it a condemnation of many a modern association whose object, whether avowed or disguised, is clearly to supersede where it fails to intimidate the sole constitutional Legislature.

The abandonment of the bill was naturally hailed as a triumph by the Queen and her partisans; but with the excitement of the struggle against the government the interest taken in her case died away. The next year, when she demanded to be crowned with her husband, his refusal to admit her claim elicited scarcely any sympathy for her under this renewed grievance; in truth, it was one as to which precedent was unfavorable to her demand. And the mortification at finding herself already almost forgotten contributed to bring on an illness of which she died in less than a year after the termination of what was called her trial; and in a short time both she and it were forgotten.

For the next few years the history of the kingdom is one of progressive correction of abuses or defects. The King paid visits to Ireland and Scotland, parts of his dominions which his father had never once visited, and in both was received with the most exultant and apparently sincere acclamations. And, though one great calamity fell on the ministry in the loss of Lord Castlereagh--who, in a fit of derangement, brought on by the excitement of overwork, unhappily laid violent hands on himself--his death, sad as it was, could not be said to weaken or to affect the general policy of the cabinet. Indeed, as he was replaced at the Foreign Office by his old colleague and rival, Mr. Canning, in one point of view the administration may be said to have been strengthened by the change, since, as an orator, Canning had confessedly no equal in either House of Parliament. Another change was productive of still more practical advantage. Lord Sidmouth retired from the Home Office, and was succeeded by Mr. Peel, previously Secretary for Ireland; and the transfer of that statesman to an English office facilitated reforms, some of which were as yet little anticipated even by the new Secretary himself. The earliest of them, and one not the least important in its bearing on the well-doing of society, the mitigation of the severity of our Criminal Code, was, indeed, but the following up of a series of measures in the same direction which had been commenced in the time of the Duke of Portland's second administration, and, it must be added, in spite of its resistance. The influence of various trades, and of the owners of different kinds of property, pressing in turns upon our legislators, had rendered our code the most sanguinary that had, probably, ever existed in Christendom. Each class of proprietor regarded only the preservation of his own property, and had no belief in the efficacy of any kind of protection for it, except such as arose from the fear of death; nor any doubt that he was justified in procuring the infliction of that penalty to avert the slightest loss to himself. The consequence was that, at the beginning of the present century, there were above two hundred offences the perpetrators of which were liable to capital punishment, some of a very trivial character, such as cutting down a hop-vine in a Kentish hop-garden, robbing a rabbit-warren or a fish-pond, personating an out-pensioner of Greenwich Hospital, or even being found on a high-road with a blackened face, the intention to commit a crime being inferred from the disguise, even though no overt act had been committed. An act of Elizabeth made picking a pocket a capital offence; another, passed as late as the reign of William III., affixed the same penalty to shop-lifting, even when the article stolen might not exceed the value of five shillings. And the fault of these enactments was not confined to their unreasonable cruelty; they were as mischievous even to those whom they were designed to protect as they were absurd, as some owners began to perceive. In the list of capital offences was that of stealing linen from a bleaching-ground. And a large body of bleachers presented a petition to Parliament entreating the repeal of the statute which made it such on the ground that, practically, it had been found not to strike terror into the thieves, but almost to secure them impunity from the reluctance of juries to find a verdict which would sentence a fellow-creature to the gallows for such an offence.

Nor was this by any means the only instance in which the barbarity of the law defeated its object. And its combined impolicy and inhumanity had some years before attracted the notice of Sir Samuel Romilly, who had been Solicitor-general in the administration of 1806, and who, shortly after its dissolution, began to apply himself to the benevolent object of procuring the repeal of many of the statutes in question, and in the course of a few years did succeed in obtaining the substitution of milder penalties for several of the less flagitious offences. He died in 1818; but the work which he had began was continued by Sir James Mackintosh, a man of even more conspicuous ability, and one who could adduce his own experience in favor of the changes which he recommended to the Parliament, since he had filled the office of Recorder of Bombay for eight years, and had discharged his duties with a most diligent and consistent avoidance of capital punishment, which he had never inflicted except for murder; his lenity, previously unexampled in that land, having been attended with a marked diminution of crime. He procured the substitution of milder penalties in several additional cases; and at last, in 1822, he carried a resolution engaging the House of Commons "the next session to take into its serious consideration the means of increasing the efficacy of the criminal law by abating its undue rigor." And this success had the effect of inducing the new minister to take the question into his own hands. Peel saw that it was one which, if it were to be dealt with at all, ought to be regulated by the government itself, and not be left to independent members, who could not settle it with satisfactory completeness; and therefore, in 1823, he introduced a series of bills to carry out the principle implied in Mackintosh's resolution of the preceding year, not only simplifying the law, but abolishing the infliction of capital punishment in above a hundred cases. He was unable to carry out his principle as fully as he could have desired. The prejudice in favor of still retaining death as a punishment for forgery was too strong for even his resolution as yet to overbear, though many private bankers supplied him with the same arguments against it in their case which had formerly been alleged by the bleachers. But the example which he now set, enforced as it was with all the authority of the government, was followed in many subsequent sessions, till at last our code, instead of the most severe, has become the most humane in Europe, and death is now never inflicted except for murder, or crimes intended or calculated to lead to murder. It is worth remarking, however, that neither Romilly, Mackintosh, nor Peel ever entertained the slightest doubt of the right of a government to inflict capital punishment. In the last address which Mackintosh delivered to the grand-jury at Bombay he had said: "I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as a mere modification of the right of self-defence, which may as justly be exercised in deterring from attack as in repelling it."[187] And in his diary, when speaking of a death-warrant which he had just signed, he says: "I never signed a paper with more perfect tranquillity of mind. I felt agitation in pronouncing the sentence, but none in subscribing the warrant; I had no scruple of conscience on either occasion."

And it seems that his position is unassailable. The party whose interest is to be kept in view by the Legislature in imposing punishments on offences is society, the people at large, not the offender. The main object of punishment is to deter rather than to reform; to prevent crime, not to take vengeance on the criminal. And, if crime be more effectually prevented by moderate than by severe punishments, society has a right to demand, for its own security (as a matter of policy, not of justice), that the moderate punishment shall, on that ground, be preferred. That punishments disproportioned in their severity to the magnitude of the offence often defeated their object was certain. Not only had jurymen been known to confess that they had preferred violating their oaths to doing still greater violence to their consciences, by sending a man to the gallows for a deed which, in their opinion, did not deserve it, but the very persons who had been injured by thefts or forgeries were often deterred from prosecution of the guilty by the knowledge that the forfeiture of their lives must follow their conviction. It was almost equally certain that criminals calculated beforehand on the chance of impunity which the known prevalence of these feelings afforded them. Wherever the sympathy of the public does not go along with the law, it must, to a great extent, fail; and that the terrible frequency of sanguinary punishment had failed in all its objects, was proved by the fact that, in spite of the numerous executions which took place, crimes increased in a still greater proportion than the population. Under the reformed system, now first inaugurated on an extensive scale, crimes have become rarer, detection and punishment more certain--a combination of results which must be the object equally of the law-giver and the philanthropist.

It is not quite foreign to this subject to relate that, a year or two before, a mode of trial had been abolished which, though long disused, by some curious oversight had still been allowed to remain on the statute-book. In the feudal times either the prosecutor or the prisoner, in cases of felony, had a right to claim that the cause should be decided by "wager of battle;" but it was an ordeal which, with one exception in the reign of George II., had not been mentioned for centuries. In 1817, however, the relatives of a woman who had been murdered, being dissatisfied with the acquittal of a man who had been indicted as her murderer, sued out "an appeal of murder" against him, on which he claimed to have the appeal decided by "wager of battle," and threw down a glove on the floor of the court to make good his challenge. The claim was protested against by the prosecutor; but Lord Ellenborough, the Chief-justice, pronounced judgment that, "trial by battle having been demanded, it was the legal and constitutional mode of trial, and must be awarded. It was the duty of the judges to pronounce the law as it was, and not as they might wish it to be."[188] He gave sentence accordingly; and, had the two parties been of equal stature and strength, the Judges of the Common Pleas might have been seen, in their robes, presiding from sunrise till sunset over a combat to be fought, as the law prescribed, with stout staves and leathern shields, till one should cry "Craven," and yield up the field. Fortunately for them, the alleged murderer was so superior in bodily strength to his adversary, that the latter declined the contest. But the public advancement of the claim for such a mode of decision was fatal to any subsequent exercise of it; and, in spite of the Common Council of London, who, confiding, perhaps, in the formidable appearance presented by some of the City Champions on Lord Mayor's Day, petitioned Parliament to preserve it, the next year the Attorney-general brought in a bill to abolish it, and the judges were no longer compelled to pronounce an absurd sentence in obedience to an obsolete law, framed at a time when personal prowess was a virtue to cover a multitude of sins, and might was the only right generally acknowledged.

The foundation, too, was laid for other reforms. Lord Liverpool was more thoroughly versed than any of his predecessors, except Pitt, in the soundest principles of political economy; and in one of the first speeches which he made in the new reign he expressed a decided condemnation, not only of any regulations which were designed to favor one trade or one interest at the expense of another, but generally of the whole system and theory of protection; and one of his last measures made an alteration in the manner of taxing corn imported from foreign countries, which was greatly to the advantage of the consumer. It was known as the "sliding-scale," the tax on imported corn varying with the price in the market, rising when the price fell, and falling when it rose; the design with which it was framed being to keep the price to the consumer at all times as nearly equal as possible. At first, however, it was vehemently denounced by the bulk of the agriculturists, who were re-enforced on this occasion by a large party from among the Whigs, and especially by some of those connected with Ireland. But a more suitable period for discussing the establishment of Free-trade as the ruling principle of our financial policy will occur hereafter.

The introduction of the sliding-scale was almost the last act of Lord Liverpool's ministry. At the beginning of 1827 he was preparing a fresh measure on the same subject, the effect of which was intended to diminish still farther the protection which the former act had given, and which was in consequence denounced by many landholders of great wealth and influence, led, on this subject, by the King's favorite brother, the Duke of York.[189] But, a few days after the meeting of Parliament, he was struck down by an attack of paralysis, from which he never recovered.

In his post as Prime-minister he was succeeded by Canning, not without great reluctance on the part of the King; not, probably, so much because he feared to find in him any desire to depart from the policy of Lord Liverpool, except on the Catholic question (for even on matters of foreign policy, on which Canning had always been supposed most to fix his attention, he had adopted the line which Lord Liverpool had laid down for the cabinet with evident sincerity),[190] as because his Majesty had never wholly forgiven him for the attitude which he had taken, differing on one or two points from that of his colleagues on the Queen's case. And, as has been mentioned in a former chapter, he even, with the object of evading the necessity of appointing him, suggested to the Duke of Wellington the singular scheme of allowing the remaining members of Lord Liverpool's cabinet to select their own chief,[191] which the Duke, though coinciding with him in his dislike of Canning, of whom he entertained a very causeless suspicion, rejected without hesitation, as an abandonment of the royal prerogative in one of its most essential duties or privileges. Another of his Majesty's notions, if it had been carried out, would have been one of the strangest violations of constitutional principle and practice which it is possible to conceive. The Duke of York, who had for many years been Commander-in-chief, died in January of the same year, and on his death the King actually proposed to take that office on himself. For the moment Lord Liverpool was able to induce him to abandon the idea, and to confer the post on the Duke of Wellington. But it had taken such possession of his mind that he recurred to it again when, on Canning becoming Prime-minister, the Duke resigned the office; and he pressed it on the Cabinet with singular pertinacity till, on Canning's death, the Duke was prevailed on to resume the command. It is evident that no arrangement could possibly be more inconsistent with every principle of the constitution. The very foundation of parliamentary government is, that every officer of every department is responsible to Parliament for the proper discharge of his duties. But the investiture of the sovereign with ministerial office of any kind must involve either the entire withdrawal of that department from parliamentary control, or the exposure of the sovereign to constant criticism, which, however essential to the efficiency of the department, and consequently to the public service, would be wholly inconsistent with the respect due to the crown. The first alternative it is certain that no Parliament would endure for a moment; the second, by impairing the dignity of the monarch, could scarcely fail in some degree to threaten the stability of the monarchy itself.

Canning's ministry was too brief to give time for any transaction of internal importance. That of Lord Goderich, who succeeded him, though longer by the almanac, was practically briefer still, since it never met Parliament at all, but was formed and fell to pieces between the prorogation and the next meeting of the Houses. But that which followed, under the presidency of the Duke of Wellington, though after a few months its composition became entirely Tory, is memorable for the first great departure from those maxims of the constitution which had been reckoned among its most essential principles ever since the Revolution. Of the measures which bear that character, one was carried against the resistance of the ministry, the other by the ministers themselves. And it may at first sight appear singular that the larger measure of the two was proposed by the Duke after those members of his cabinet who had originally been supposed to give it something of a Liberal complexion had quitted it. The Reform Bill of 1832--to which we shall come in the next chapter--has been often called a peaceful revolution. The Toleration Acts, as we may call the bills of 1828 and 1829, are scarcely less deserving of that character.

The constitution, as it had existed for the last hundred and forty years, had been not only a Protestant but a Church of England constitution. Not only all Roman Catholics, but all members of Protestant Non-conforming sects, all who refused to sign a declaration against the doctrine of Transubstantiation, and also to take the Sacrament according to the rites of the one Established Church, were disqualified for any appointment of trust. That the object with which the Test Act had been framed and supported was rather political than religious is notorious; indeed, it was supported by the Protestant Dissenters, though they themselves were to suffer by its operation, so greatly at that time did the dread of Popery and the French King overpower every other consideration.[192] On the Roman Catholics, after the reign of James II. had increased that apprehension, the restrictions were tightened. But those which inflicted disabilities on the Protestant Non-conformists had been gradually relaxed. The repeal of two, the Five Mile and the Conventicle Acts, had, as we have seen in the last chapter, been recent measures of Lord Liverpool. But the Test Act still remained, though it had long been practically a dead letter. The Union with Scotland, where the majority of the population was Presbyterian, had rendered it almost impossible to maintain the exclusion of Englishmen resembling the Scotch in their religious tenets from preferments, and even from seats in the House of Commons, to which Scotchmen were admissible. And though one Prime-minister (Stanhope) failed in his attempt to induce Parliament to repeal the Test Act, and his successor (Walpole) refused his countenance to any repetition of the proposal, even he did not reject such a compromise as was devised to evade it; and in the first year of George II.'s reign (by which time it was notorious that many Protestant Non-conformists had obtained seats in municipal corporations, and even in the House of Commons, who yet had never qualified themselves by compliance with the act of 1673) a bill of indemnity was introduced by the minister, with at least the tacit consent of the English bishops, to protect all such persons from the penalties which they had incurred. And the bill, which was only annual in its operation, was renewed almost every year, till, in respect of all such places or dignities (if a seat in the House of Commons can be described by either of those names), no one thought of inquiring whether a man, so long as he were a Protestant, adhered to the Established Church or not; members of the House of Commons even openly avowing their nonconformity, and at times founding arguments on the fact.

The practical nullification of the Test Act by these periodical bills of indemnity had been for some time used by two opposite parties--both that which regarded the maintenance of the exclusive connection of the constitution with the Church of England as of vital importance to both Church and constitution, and that which was opposed to all restrictions or disqualiflcations on religious grounds--as an argument in their favor. The one contended that there could be no sufficient reason for repealing a law from which no one suffered; the other, that it was a needless provocation of ill-feeling to retain a law which no one ever dreamed of enforcing. Hitherto the latter had been the weaker party. One or two motions for the repeal of the Test Act, which had been made in former years,[193] had been defeated without attracting any great notice; but in the spring of 1828 Lord John Russel, then a comparatively young member, but rapidly rising into influence with his party, carried a motion in the House of Commons for leave to bring in a bill to repeal the act, so far as it concerned the Protestant Non-conformists, by a very decisive majority,[194] in spite of all the efforts of Peel and his colleagues.

The ministry was placed in a difficult position by his success, since the usual practice for a cabinet defeated on a question of principle was to resign; and it is probable that they would not have departed from that rule now, had not this defeat occurred so early in their official life. But on this occasion it seemed to them that other questions had to be considered besides the constitutional doctrine of submission on the part of a ministry to the judgment of the Parliament.[195] Theirs was now the fourth administration that had held office within twelve months; and their resignation, which would compel the construction of a fifth, could hardly fail not only to embarrass the sovereign, but to shake public confidence in government generally. It was also certain that they could rely on a division in the House of Lords being favorable to them, if they chose to appeal from one House to the other. Under these circumstances, they had to consider what their line of conduct should be, and there never were two ministers better suited to deal with an embarrassment of that kind than the Duke of Wellington and Mr. Peel. The Duke's doctrine of government was that "the country was never governed in practice according to the extreme principles of any party whatever;"[196] while Peel's disposition at all times inclined him to compromise. He was quite aware that on this and similar questions public feeling had undergone great alteration since the beginning of the century. There was a large and increasing party, numbering in its ranks many men of deep religious feeling, and many firm supporters of the principle of an Established Church, being also sincere believers in the pre-eminent excellence of the Church of England, who had a conscientious repugnance to the employment of the most solemn ordinance of a religion as a mere political test of a person's qualifications for the discharge of civil duties. In the opinion of the Bishop of Oxford (Dr. Lloyd), this was the feeling of "a very large majority of the Church itself," and of the University.[197] Peel, therefore, came to the conclusion--to which he had no difficulty in bringing his colleague, the Prime-minister--that "it might be more for the real interests of the Church and of religion to consent to an alteration in the law" than to trust to the result of the debate in the House of Lords to maintain the existing state of things. Accordingly, after several conferences with the most influential members of the Episcopal Bench, he framed a declaration to be substituted for the Sacramental test, binding all who should be required to subscribe it--a description which included all who should be appointed to a civil or corporate office--never to exert any power or influence which they might thus acquire to subvert, or to endeavor to subvert, the Protestant Church of England, Scotland, or Ireland, as by law established. The declaration was amended in the House of Lords by the addition of the statement, that this declaration was subscribed "on the true faith of a Christian," introduced at the instigation of Lord Eldon, who had not held the Great Seal since the dissolution of Lord Liverpool's administration, but who was still looked up to by a numerous party as the foremost champion of sound Protestantism in either House.

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."