}

The petition was granted, and three gentlemen pleaded at the bar of the House-Sir Theobald Butler, who had been solicitor-general to James II. in Tyrconnel's administration, Counsellor Malone, and Sir Stephen Rice, who had been chief baron under the same administration. Their case rested, of course, mainly on the Articles of Limerick -the lawyers being themselves protected persons-and was ably argued, especially by Sir Theobald Butler. The answer on the part of the Commons rested mainly on the familiar argument, "That any rights which the Papists pretended to be taken from them by the Bill were in their own power to remedy by conforming, as in prudence they ought to do, and that they ought not to blame any but themselves." It was further urged that the passing of this Bill would not be a breach of the Treaty of Limerick, because the persons therein comprised were only to be put into the same state as they were in, in the reign of Charles II., and because in that reign there was no law in force which hindered the passing of any other law thought needful for the safety of the Government. Lastly, it was argued that the House was of opinion that the passing of this Bill was needful at present for the security of the kingdom, and that there was not anything in the Articles of Limerick to prevent its passing.

The same counsel pleaded before the House of Lords also, and there the right of a legislature to make any laws it thinks necessary for the safety of the State, and the contention that no treaty or previous obligations should tie up the hands of legislators from providing for the public safety, was fully admitted by Sir Stephen Rice, who considered that a legislature had a right to enact any law that may be absolutely needful for the safety and advantage of the public; such a law could not be a breach either of these or any other like articles. But then, such laws ought to be general, and should not single out or affect any one particular part or party of the people, who gave no provocation to any such law, and whose conduct stood hitherto unimpeachable ever since the ratification of the aforesaid Articles of Limerick. To make any law that

1703]

THE ACT PASSED

35

shall single out any particular part of the people from the rest, and take from them what by right of birth, and all the preceding laws of the land, had been conformed to and entailed upon them, will be an apparent violation of the original institution of all right, and an ill precedent to any that hereafter might dislike either the present or any other settlement which it should be in their power to alter, the consequences of which it is hard to imagine.

The Lord Chancellor summed up the arguments on both sides; but, as Southwell's letter, giving an account of the discussion to Nottingham, informs us, the arguments of the Catholic advocates produced, as might be expected, no result. "The arguments," he wrote, "were considered and answered, and all the clauses against the Papists passed unanimously till we came to the Sacramental Test, on which we had a two hours' debate. It was objected that we were creating a new distinction of Church and Dissent, when there ought to be only that of Protestant and Papist; that it weakened our Protestant interest when we were provoking the Papists afresh." He added, "That in cases of public danger all people were obliged, in duty and interest, to oppose the common enemy; that, if ever we hoped a union with England, it could not be expected they would ever do it, but upon the same terms they stand upon; and that in England the Dissenters have both writ for and preached conformity when it was for their interest and advantage." The Bill was carried in the House of Commons by a very large majority, the only opposition being on the Sacramental Test. Not a single member of either House said a word in opposition to the clauses against the Catholics. The Act for the registration of priests was passed at the same time, but the Oath of Abjuration was not as yet insisted upon; but, as Mr. Froude says, "Had the execution of the law been equal to its verbal severity, it would still have sufficed to extinguish Irish Popery within the compass of a generation."2 But under the circumstances 1 Froude, op. cit., vol. i. pp. 315, 316.

2 Ibid., p. 317.

it could not be enforced; nor did the colonists want it enforced. If the whole of the Catholics had become Protestant, the Ascendency would lose their advantages. One of the great central facts of Irish history is that the colonists never wished the Catholics to become Protestant. So in earlier times they did not wish them to become English-they did all they could to prevent it. The spoils in both cases would have been less.

With the view of stimulating magistrates to enforce this Act, the Irish House of Commons passed a resolution declaring "that all magistrates and other persons whatsoever who neglected or omitted to put it in due execution, were betrayers of the liberties of the kingdom."1 A further resolution was passed declaring "that prosecuting and informing against Papists was an honourable service to the Government." The trade of informer, being now an "honourable" one, became also a lucrative one, and the business grew very active.

In the year 1707, the union of Scotland with England was carried by a majority of one hundred and ten. The Irish House of Lords again addressed the queen in favour of a similar union between Ireland and England; but the Irish House of Commons did not favour the projectindeed, it had grown in disfavour-and the English ministry were, if not indifferent to it, afraid to rouse the jealousy of the English trading classes.

The union created great discontent in Scotland among all classes, but especially among the Presbyterians of the south-west of Scotland, where a widespread conspiracy was discovered in the following year. It was assumed that a similar conspiracy must have existed in Ireland, and accordingly forty-one Catholic noblemen and gentlemen were arrested and imprisoned for some time in Dublin Castle, without any charge being preferred against them. The same panic which led the Government to arrest the harmless peers and gentlemen, whose only desire was to be forgotten, made them see treasonable meetings in favour of the Pretender, in pilgrimages to holy wells, hurling, 1 Commons Journals, March 17, 1704.

1708]

RECALL OF ORMOND

mummers, and all gatherings of the peasantry.

37

Once

for all, it should be remembered that Jacobitism was a Scotch and English sect, to which the Irish never really belonged.

The alarm about the Pretender was the immediate cause of the forging of another link in the penal chain, namely, the enacting of a law in 1708 to prevent Catholics from acting as grand jurors, unless it appeared that a sufficient number of Protestants were not forthcoming; and also to provide that in all trials of issues (i.e. by petty juries) on any presentment, indictment, information, or action, on any statute, for any offence committed by Papists in breach of such laws, the plaintiff or prosecutor might challenge any Papist returned as juror, and assign as a cause that he was a Papist.

The plan of the descent of the Pretender upon Scotland is said to have included a landing of French troops at Galway, in case of any partial success in Scotland; the Government, we are told, had information of the intended plan. In the event of some success in Scotland, it is possible that a landing might have taken place in Galway or some other place, and it may be admitted that, in conversation among the Jacobites in France, the probability of some such landing may have been mentioned; but there is no evidence to show that the Irish abroad or at home intended to take part in the plans of the Pretender.

The depressed and declining state of trade, and the emigration of the most energetic and independent of the artisans, many, indeed most, of whom were at this time Dissenters, coupled with the rumours of the threatened invasion of Scotland by the Pretender, convinced the Government that the imposition of the Sacramental Test was a blunder. The Earl of Pembroke was accordingly sent over in the summer of 1707, in place of Ormond, to endeavour to get rid of the Test; with him came as secretary Mr. George Doddington, whose correspondence throws much light on the state of things at the time. Pembroke's speech at the opening of Parliament dwelt chiefly on the danger from the overwhelming numbers of

the Catholics, and on the necessity of uniting all Protestants against them, and also of finding some additional means of securing the Protestant interest and introducing harmony and unanimity amongst all sections of Protestants. The supplies were freely voted, but the question of the Test, for which Pembroke had been specially sent, made no progress. Doddington considered the removal of the Test impracticable, but thought no difficulty would arise from another turn of the Popery screw. An amendment of the Popery Act was accordingly proposed and carried through the House of Commons with much enthusiasm. The plea alleged for the necessity of fresh legislation was the skill with which the attorneys had succeeded in evading the Act of 1704, and the necessity for improving the machinery of the former Act. In the House of Lords some modifications were made in the Bill which did not commend themselves to the Commons. These modifications were accepted in England; but, as amended, the Bill was rejected by the Irish colonists as not being stringent enough.

The colonists were dissatisfied with Pembroke; they desired a more extreme Ascendency man. So in May 1709 he was replaced by Thomas, Earl of Wharton-one of the most profligate politicians ever engaged in the government of Ireland. Wharton promptly proceeded to carry out the objects for which he was sent to Ireland, namely, to pass a second Popery Act, to repeal the Test Act, and unite the colonists against the "common enemy," the native Irish. In his address to Parliament he dwelt on the inequality in number between the Protestants and Papists of Ireland, and suggested that further enactments were necessary to confirm the law for preventing the growth of Popery, and establish a good understanding among all denominations of Protestants. The Commons responded to this invitation to increase the severity of the

1 A Tory pamphlet of the period of the Duke of Shrewsbury's viceroyalty defines this much-used term thus: "They know very well that Atheists, Deists, Socinians, and Sectarists of all sorts go under the name of Protestants, and those with the truly orthodox of the Established Church make up the 'Protestant interest' of that kingdom" ("A Long History of a Certain Session of a Certain Parliament, in a Certain Kingdom," 1714, p. 15).