 |
[Sidenote: Of the same.]
41. And be it enacted, that, if any free negro hath been twice convicted for any of the said misdemeanors, and is judged by the said protector of negroes, calling to his assistance two justices of the peace, to be incorrigibly idle, dissolute, and vicious, it shall be lawful, by the order of the said protector and two justices of peace, to sell the said free negro into slavery: the purchase-money to be paid to the person so remanded into servitude, or kept in hand by the protector and governor for the benefit of his family.
[Sidenote: Governor to receive and transmit annual reports.]
42. And be it enacted, that the governor in each colony shall be assistant to the execution of this act, and shall receive the reports of the protector, and such other accounts as he shall judge material, relative thereto, and shall transmit the same annually to one of his Majesty's principal secretaries of state.
LETTER
TO
THE CHAIRMAN OF THE BUCKINGHAMSHIRE MEETING,
HELD AT AYLESBURY, APRIL 13, 1780,
ON THE SUBJECT OF
PARLIAMENTARY REFORM.
NOTE.
The meeting of the freeholders of the County of Buckingham, which occasioned the following Letter, was called for the purpose of taking into consideration a petition to Parliament for shortening the duration of Parliaments, and for a more equal representation of the people in the House of Commons.
Sir,—Having heard yesterday, by mere accident, that there is an intention of laying before the county meeting new matter, which is not contained in our petition, and the consideration of which had been deferred to a fitter time by a majority of our committee in London, permit me to take this method of submitting to you my reasons for thinking, with our committee, that nothing ought to be hastily deter mined upon the subject.
Our petition arose naturally from distresses which we felt; and the requests which we made were in effect nothing more than that such things should be done in Parliament as it was evidently the duty of Parliament to do. But the affair which will be proposed to you by a person of rank and ability is an alteration in the constitution of Parliament itself. It is impossible for you to have a subject before you of more importance, and that requires a more cool and more mature consideration, both on its own account, and for the credit of our sobriety of mind, who are to resolve upon it.
The county will in some way or other be called upon to declare it your opinion, that the House of Commons is not sufficiently numerous, and that the elections are not sufficiently frequent,—that an hundred new knights of the shire ought to be added, and that we are to have a new election once in three years for certain, and as much oftener as the king pleases. Such will be the state of things, if the proposition made shall take effect.
All this may be proper. But, as an honest man, I cannot possibly give my rote for it, until I have considered it more fully. I will not deny that our Constitution may have faults, and that those faults, when found, ought to be corrected; but, on the whole, that Constitution has been our own pride, and an object of admiration to all other nations. It is not everything which appears at first view to be faulty, in such a complicated plan, that is to be determined to be so in reality. To enable us to correct the Constitution, the whole Constitution must be viewed together; and it must be compared with the actual state of the people, and the circumstances of the time. For that which taken singly and by itself may appear to be wrong, when considered with relation to other things, may be perfectly right,—or at least such as ought to be patiently endured, as the means of preventing something that is worse. So far with regard to what at first view may appear a distemper in the Constitution. As to the remedy of that distemper an equal caution ought to be used; because this latter consideration is not single and separate, no more than the former. There are many things in reformation which would be proper to be done, if other things can be done along with them, but which, if they cannot be so accompanied, ought not to be done at all. I therefore wish, when any new matter of this deep nature is proposed to me, to have the whole scheme distinctly in my view, and full time to consider of it. Please God, I will walk with caution, whenever I am not able clearly to see my way before me.
I am now growing old. I have from my very early youth been conversant in reading and thinking upon the subject of our laws and Constitution, as well as upon those of other times and other countries; I have been for fifteen years a very laborious member of Parliament, and in that time have had great opportunities of seeing with my own eyes the working of the machine of our government, and remarking where it went smoothly and did its business, and where it checked in its movements, or where it damaged its work; I have also had and used the opportunities of conversing with men of the greatest wisdom and fullest experience in those matters; and I do declare to you most solemnly and most truly, that, on the result of all this reading, thinking, experience, and communication, I am not able to come to an immediate resolution in favor of a change of the groundwork of our Constitution, and in particular, that, in the present state of the country, in the present state of our representation, in the present state of our rights and modes of electing, in the present state of the several prevalent interests, in the present state of the affairs and manners of this country, the addition of an hundred knights of the shire, and hurrying election on election, will be things advantageous to liberty or good government.
This is the present condition of my mind; and this is my apology for not going as fast as others may choose to go in this business. I do not by any means reject the propositions; much less do I condemn the gentlemen who, with equal good intentions, with much better abilities, and with infinitely greater personal weight and consideration than mine, are of opinion that this matter ought to be decided upon instantly.
I most heartily wish that the deliberate sense of the kingdom on this great subject should be known. When it is known, it must be prevalent. It would be dreadful indeed, if there was any power in the nation capable of resisting its unanimous desire, or even the desire of any very great and decided majority of the people. The people may be deceived in their choice of an object; but I can scarcely conceive any choice they can make to be so very mischievous as the existence of any human force capable of resisting it. It will certainly be the duty of every man, in the situation to which God has called him, to give his best opinion and advice upon the matter: it will not be his duty, let him think what he will, to use any violent or any fraudulent means of counteracting the general wish, or even of employing the legal and constructive organ of expressing the people's sense against the sense which they do actually entertain.
In order that the real sense of the people should be known upon so great an affair as this, it is of absolute necessity that timely notice should be given,—that the matter should be prepared in open committees, from a choice into which no class or description of men is to be excluded,—and the subsequent county meetings should be as full and as well attended as possible. Without these precautions, the true sense of the people will ever be uncertain. Sure I am, that no precipitate resolution on a great change in the fundamental constitution of any country can ever be called the real sense of the people.
I trust it will not be taken amiss, if, as an inhabitant and freeholder of this county, (one, indeed, among the most inconsiderable,) I assert my right of dissenting (as I do dissent fully and directly) from any resolution whatsoever on the subject of an alteration in the representation and election of the kingdom at this time. By preserving this light, and exercising it with temper and moderation, I trust I cannot offend the noble proposer, for whom no man professes or feels more respect and regard than I do. A want of concurrence in everything which can be proposed will in no sort weaken the energy or distract the efforts of men of upright intentions upon those points in which they are agreed. Assemblies that are met, and with a resolution to be all of a mind, are assemblies that can have no opinion at all of their own. The first proposer of any measure must be their master. I do not know that an amicable variety of sentiment, conducted with mutual good-will, has any sort of resemblance to discord, or that it can give any advantage whatsoever to the enemies of our common cause. On the contrary, a forced and fictitious agreement (which every universal agreement must be) is not becoming the cause of freedom. If, however, any evil should arise from it, (which I confess I do not foresee,) I am happy that those who have brought forward new and arduous matter, when very great doubts and some diversity of opinion must be foreknown, are of authority and weight enough to stand against the consequences.
I humbly lay these my sentiments before the county. They are not taken up to serve any interests of my own, or to be subservient to the interests of any man or set of men under heaven. I could wish to be able to attend our meeting, or that I had time to reason this matter more fully by letter; but I am detained here upon our business: what you have already put upon us is as much as we can do. If we are prevented from going through it with any effect, I fear it will be in part owing not more to the resistance of the enemies of our cause than to our imposing on ourselves such tasks as no human faculties, employed as we are, can be equal to. Our worthy members have shown distinguished ability and zeal in support of our petition. I am just going down to a bill brought in to frustrate a capital part of your desires. The minister is preparing to transfer the cognizance of the public accounts from those whom you and the Constitution have chosen to control them, to unknown persons, creatures of his own. For so much he annihilates Parliament.
I have the honor, &c.
EDMUND BURKE.
CHARLES STREET, 12th April, 1780.
FRAGMENTS OF A TRACT
RELATIVE TO
THE LAWS AGAINST POPERY
IN IRELAND.
NOTE.
The condition of the Roman Catholics in Ireland appears to lave engaged the attention of Mr. Burke at a very early period of his political life. It was probably soon after the year 1765 that he formed the plan of a work upon that subject, the fragments of which are now given to the public. No title is prefixed to it in the original manuscript; and the Plan, which it has been thought proper to insert here, was evidently designed merely for the convenience of the author. Of the first chapter some unconnected fragments only, too imperfect for publication, have been found. Of the second there is a considerable portion, perhaps nearly the whole; but the copy from which it is printed is evidently a first rough draught. The third chapter, as far as it goes, is taken from a fair, corrected copy; but the end of the second part of the first head is left unfinished, and the discussion of the second and third heads was either never entered upon or the manuscript containing it has unfortunately been lost. What follows the third chapter appears to have been designed for the beginning of the fourth, and is evidently the first rough draught; and to this we have added a fragment which appears to have been a part either of this or the first chapter.
In the volume with which it is intended to close this posthumous publication of Mr. Burke's Works, we shall have occasion to enter into a more particular account of the part which he took in the discussion of this great political question. At present it may suffice to say, that the Letter to Mr. Smith, the Second Letter to Sir Hercules Langrishe, and the Letter to his Son, which here follow in order the Fragment on the Popery Laws, are the only writings upon this subject found amongst his papers in a state fit to appear in this stage of the publication. What remain are some small fragments of the Tract, and a few letters containing no new matter of importance.
TRACT
ON THE POPERY LAWS
THE PLAN.
I propose, first, to make an Introduction, in order to show the propriety of a closer inspection into the affairs of Ireland; and this takes up the first chapter, which is to be spent in this introductory matter, and in stating the Popery laws in general, as one leading cause of the imbecility of the country.
CH. II. states particularly the laws themselves, in a plain and popular manner.
CH. III. begins the remarks upon them, under the heads of, 1st, The object,—which is a numerous people; 2ndly, Their means,—a restraint on property; 3rdly, Their instruments of execution,—corrupted morals, which affect the national prosperity.
CH. IV. The impolicy of those laws, as they affect the national security.
CH. V. Reasons by which the laws are supported, and answers to them.
CHAPTER II.
In order to lay this matter with full satisfaction before the reader, I shall collect into one point of view, and state as shortly and as clearly as I am able, the purport of these laws, according to the objects which they affect, without making at present any further observation upon them, but just what shall be necessary to render the drift; and intention of the legislature and the tendency and operation of the laws the more distinct and evident.
I shall begin with those which relate to the possession and inheritance of landed property in Popish hands. The first operation of those acts upon this object was wholly to change the course of descent by the Common Law, to take away the right of primogeniture, and, in lieu thereof, to substitute and establish a new species of Statute Gavelkind. By this law, on the death of a Papist possessed of an estate in fee simple or in fee tail, the land is to be divided by equal portions between all the male children; and those portions are likewise to be parcelled out, share and share alike, amongst the descendants of each son, and so to proceed in a similar distribution ad infinitum. From this regulation it was proposed that some important consequences should follow. First, by taking away the right of primogeniture, perhaps in the very first generation, certainly in the second, the families of Papists, however respectable, and their fortunes, however considerable, would be wholly dissipated, and reduced to obscurity and indigence, without any possibility that they should repair them by their industry or abilities,—being, as we shall see anon, disabled from every species of permanent acquisition. Secondly, by this law the right of testamentation is taken away, which the inferior tenures had always enjoyed, and all tenures from the 27th Hen. VIII; Thirdly, the right of settlement was taken away, that no such persons should, from the moment the act passed, be enabled to advance themselves in fortune or connection by marriage, being disabled from making any disposition, in consideration of such marriage, but what the law had previously regulated: the reputable establishment of the eldest son, as representative of the family, or to settle a jointure, being commonly the great object in such settlements, which was the very power which the law had absolutely taken away.
The operation of this law, however certain, might be too slow. The present possessors might happen to be long-lived. The legislature knew the natural impatience of expectants, and upon this principle they gave encouragement to children to anticipate the inheritance. For it is provided, that the eldest son of any Papist shall, immediately on his conformity, change entirely the nature and properties of his father's legal estate: if he before held in fee simple, or, in other words, had the entire and absolute dominion over the land, he is reduced to an estate for his life only, with all the consequences of the natural debility of that estate, by which he becomes disqualified to sell, mortgage, charge, (except for his life,) or in any wise to do any act by which he may raise money for relief in his most urgent necessities. The eldest son, so conforming, immediately acquires, and in the lifetime of his father, the permanent part, what our law calls the reversion and inheritance of the estate; and he discharges it by retrospect, and annuls every sort of voluntary settlement made by the father ever so long before his conversion. This he may sell or dispose of immediately, and alienate it from the family forever.
Having thus reduced his father's estate, he may also bring his father into the Court of Chancery, where he may compel him to swear to the value of his estate, and to allow him out of that possession (which had been before reduced to an estate for life) such an immediate annual allowance as the Lord Chancellor or Lord Keeper shall judge suitable to his ago and quality.
This indulgence is not confined to the eldest son. The other children likewise, by conformity, may acquire the same privileges, and in the same manner force from their father an immediate and independent maintenance. It is very well worth remarking, that the statutes have avoided to fix any determinate age for these emancipating conversions; so that the children, at any age, however incapable of choice in other respects, however immature or even infantile, are yet considered sufficiently capable to disinherit their parents, and totally to subtract themselves from their direction and control, either at their own option, or by the instigation of others. By this law the tenure and value of a Roman Catholic in his real property is not only rendered extremely limited and altogether precarious, but the paternal power is in all such families so enervated that it may well be considered as entirely taken away; even the principle upon which it is founded seems to be directly reversed. However, the legislature feared that enough was not yet done upon this head. The Roman Catholic parent, by selling his real estate, might in some sort preserve the dominion over his substance and his family, and thereby evade the operation of these laws, which intended to take away both. Besides, frequent revolutions and many conversions had so broken the landed property of Papists in that kingdom, that it was apprehended that this law could have in a short time but a few objects upon which it would be capable of operating.
To obviate these inconveniences another law was made, by which the dominion of children over their parents was extended universally throughout the whole Popish part of the nation, and every child of every Popish parent was encouraged to come into what is called a court of equity, to prefer a bill against his father, and compel him to confess, upon oath, the quantity and value of his substance, personal as well as real, of what nature soever, or howsoever it might be employed; upon which discovery, the court is empowered to seize upon and allocate, for the immediate maintenance of such child or children, any sum not exceeding a third of the whole fortune: and as to their future establishment on the death of the father, no limits are assigned; the Chancery may, if it thinks fit, take the whole property, personal as well as real, money, stock in trade, &c, out of the power of the possessor, and secure it in any manner they judge expedient for that purpose; for the act has not assigned any sort of limit with regard to the quantity which is to be charged, or given any direction concerning the means of charging and securing it: a law which supersedes all observation.
But the law is still more extensive in its provision. Because there was a possibility that the parent, though sworn, might by false representations evade the discovery of the ultimate value of his estate, a new bill may be at any time brought, by one, any, or all of the children, for a further discovery; his effects are to undergo a fresh scrutiny, and a now distribution is to be made in consequence of it. So that the parent has no security against perpetual inquietude, and the reiteration of Chancery suits, but by (what is somewhat difficult for human nature to comply with) fully, and without reserve, abandoning his whole property to the discretion of the court, to be disposed of in favor of such children.
But is this enough, and has the parent purchased his repose by such a surrender? Very far from it. The law expressly, and very carefully, provides that he shall not: before he can be secure from the persecution of his children, it requires another and a much more extraordinary condition: the children are authorized, if they can find that their parent has by his industry, or otherwise, increased the value of his property since their first bill, to bring another, compelling a new account of the value of his estate, in order to a new distribution proportioned to the value of the estate at the time of the new bill preferred. They may bring such bills, toties quoties, upon every improvement of his fortune, without any sort of limitation of time, or regard to the frequency of such bills, or to the quantity of the increase of the estate, which shall justify the bringing them. This act expressly provides that he shall have no respite from the persecution of his children, but by totally abandoning all thoughts of improvement and acquisition.
This is going a great way, surely: but the laws in question have gone much further. Not satisfied with calling upon children to revolt against their parents, and to possess themselves of their substance, there are cases where the withdrawing of the child from his father's obedience is not left to the option of the child himself: for, if the wife of a Roman Catholic should choose to change her religion, from that moment she deprives her husband of all management and direction of his children, and even of all the tender satisfaction which a parent can feel in their society, and which is the only indemnification he can have for all his cares and sorrows; and they are to be torn forever, at the earliest age, from his house and family: for the Lord Chancellor is not only authorized, but he is strongly required, to take away all his children from such Popish parent, to appoint where, in what manner, and by whom they are to be educated; and the father is compelled to pay, not for the ransom, but for the deprivation of his children, and to furnish such a sum as the Chancellor thinks proper to appoint for their education to the age of eighteen years. The case is the same, if the husband should be the conformist; though how the law is to operate in this case I do not see: for the act expressly says, that the child shall be taken from such Popish parent; and whilst such husband and wife cohabit, it will be impossible to put it into execution without taking the child from one as well as from the other; and then the effect of the law will be, that, if either husband or wife becomes Protestant, both are to be deprived of their children.
The paternal power thus being wholly abrogated, it is evident that by the last regulation the power of an husband over his wife is also considerably impaired; because, if it be in her power, whenever she pleases, to subtract the children from his protection and obedience, she herself by that hold inevitably acquires a power and superiority over her husband.
But she is not left dependent upon this oblique influence: for, if in any marriage settlement the husband has reserved to him a power of making a jointure, and he dies without settling any, her conformity executes his powers, and executes them in as large extent as the Chancellor thinks fit. The husband is deprived of that coercive power over his wife which he had in his hands by the use he might make of the discretionary power reserved in the settlement.
But if no such power had been reserved, and no such settlement existed, yet, if the husband dies, leaving his conforming wife without a filed provision by some settlement on his real estate, his wife may apply to Chancery, where she shall be allotted a portion from his leases, and other personal estate, not exceeding one third of his whole clear substance. The laws in this instance, as well as in the former, have presumed that the husband has omitted to make all the provision which he might have done, for no other reason than that of her religion. If, therefore, she chooses to balance any domestic misdemeanors to her husband by the public merit of conformity to the Protestant religion, the law will suffer no plea of such misdemeanors to be urged on the husband's part, nor proof of that kind to be entered into. She acquires a provision totally independent of his favor, and deprives him of that source of domestic authority which the Common Law had left to him, that of rewarding or punishing, by a voluntary distribution of his effects, what in his opinion was the good or ill behavior of his wife.
Thus the laws stand with regard to the property already acquired, to its mode of descent, and to family powers. Now as to the new acquisition of real property, and both to the acquisition and security of personal, the law stands thus:—
All persons of that persuasion are disabled from taking or purchasing, directly or by a trust, any lands, any mortgage upon land, any rents or profits from land, any lease, interest, or term of any land, any annuity for life or lives or years, or any estate whatsoever, chargeable upon, or which may in any manner affect, any lands.
One exception, and one only, is admitted by the statutes to the universality of this exclusion, viz., a lease for a term not exceeding thirty-one years. But even this privilege is charged with a prior qualification. This remnant of a right is doubly curtailed: 1st, that on such a short lease a rent not less than two thirds of the full improved yearly value, at the time of the making it, shall be reserved during the whole continuance of the term; and, 2ndly, it does not extend to the whole kingdom. This lease must also be in possession, and not in reversion. If any lease is made, exceeding either in duration or value, and in the smallest degree, the above limits, the whole interest is forfeited, and vested ipso facto in the first Protestant discoverer or informer. This discoverer, thus invested with the property, is enabled to sue for it as his own right. The courts of law are not alone open to him; he may (and this is the usual method) enter into either of the courts of equity, and call upon the parties, and those whom he suspects to be their trustees, upon oath, and under the penalties of perjury, to discover against themselves the exact nature and value of their estates in every particular, in order to induce their forfeiture on the discovery. In such suits the informer is not liable to those delays which the ordinary procedure of those courts throws into the way of the justest claimant; nor has the Papist the indulgence which he [it?] allows to the most fraudulent defendant, that of plea and demurrer; but the defendant is obliged to answer the whole directly upon oath. The rule of favores ampliandi, &c., is reversed by this act, lest any favor should be shown, or the force and operation of the law in any part of its progress be enervated. All issues to be tried on this act are to be tried by none but known Protestants.
It is here necessary to state as a part of this law what has been for some time generally understood as a certain consequence of it. The act had expressly provided that a Papist could possess no sort of estate which might affect land (except as before excepted). On this a difficulty did, not unnaturally, arise. It is generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to be delivered unto the creditor until the obligation is satisfied, under a writ called Elegit, and this writ has been ever since the ordinary assurance of the land, and the great foundation of general credit in the nation. Although the species of holding under this writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security, because it may create an estate, however precarious, in land, their whole debt or charge is forfeited, and becomes the property of the Protestant informer. Thus you observe, first, that by the express words of the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore, most people who lend money would, I believe, consider as none at all.
Under this head of the acquisition of property, the law meets them in every road of industry, and in its direct and consequential provisions throws almost all sorts of obstacles in their way. For they are not only excluded from all offices in Church and State, which, though a just and necessary provision, is yet no small restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches. This point is carried to so scrupulous a severity, that chamber practice, and even private conveyancing, the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this: for every barrister, six clerk, attorney, or solicitor, is obliged to take a solemn oath not to employ persons of that persuasion,—no, not as hackney clerks, at the miserable salary of seven shillings a week. No tradesman of that persuasion is capable by any service or settlement to obtain his freedom in any town corporate; so that they trade and work in their own native towns as aliens, paying, as such, quarterage, and other charges and impositions. They are expressly forbidden, in whatever employment, to take more than two apprentices, except in the linen manufacture only.
* * * * *
In every state, next to the care of the life and properties of the subject, the education of their youth has been a subject of attention. In the Irish laws this point has not been neglected. Those who are acquainted with the constitution of our universities need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in them who do not previously take all the tests, oaths, and declarations. Lest they should be enabled to supply this defect by private academies and schools of their own, the law has armed itself with all its terrors against such a practice. Popish schoolmasters of every species are proscribed by those acts, and it is made felony to teach even in a private family. So that Papists are entirely excluded from an education in any of our authorized establishments for learning at home. In order to shut up every avenue to instruction, the act of King William in Ireland has added to this restraint by precluding them from all foreign education.
This act is worthy of attention on account of the singularity of some of its provisions. Being sent for education to any Popish school or college abroad, upon conviction, incurs (if the party sent has any estate of inheritance) a kind of unalterable and perpetual outlawry. The tender and incapable age of such a person, his natural subjection to the will of others, his necessary, unavoidable ignorance of the laws, stands for nothing in his favor. He is disabled to sue in law or equity; to be guardian, executor, or administrator; he is rendered incapable of any legacy or deed of gift; he forfeits all his goods and chattels forever; and he forfeits for his life all his lands, hereditaments, offices, and estate of freehold, and all trusts, powers, or interests therein. All persons concerned in sending them or maintaining them abroad, by the least assistance of money or otherwise, are involved in the same disabilities, and subjected to the same penalties.
The mode of conviction is as extraordinary as the penal sanctions of this act. A justice of peace, upon information that any child is sent away, may require to be brought before him all persons charged or even suspected of sending or assisting, and examine them and other persons on oath concerning the fact. If on this examination he finds it probable that the party was sent contrary to this act, he is then, to bind over the parties and witnesses in any sum he thinks fit, but not less than two hundred pounds, to appear and take their trial at the next quarter sessions. Here the justices are to reexamine evidence, until they arrive, as before, to what shall appear to them a probability. For the rest they resort to the accused: if they can prove that any person, or any money, or any bill of exchange, has been sent abroad by the party accused, they throw the proof upon him to show for what innocent purposes it was sent; and on failure of such proof, he is subjected to all the above-mentioned penalties. Half the forfeiture is given to the crown; the other half goes to the informer.
It ought here to be remarked, that this mode of conviction not only concludes the party has failed in his expurgatory proof, but it is sufficient also to subject to the penalties and incapacities of the law the infant upon whose account the person has been so convicted. It must be confessed that the law has not left him without some species of remedy in this case apparently of much hardship, where one man is convicted upon evidence given against another, if he has the good fortune to live; for, within a twelvemonth after his return, or his age of twenty-one, he has a, right to call for a new trial, in which he also is to undertake the negative proof, and to show by sufficient evidence that he has not been sent abroad against the intention of the act. If he succeeds in this difficult exculpation, and demonstrates his innocence to the satisfaction of the court, he forfeits all his goods and chattels, and all the profits of his lands incurred and received before such acquittal; but he is freed from all other forfeitures, and from all subsequent incapacities. There is also another method allowed by the law in favor of persons under such unfortunate circumstances, as in the former case for their innocence, in this upon account of their expiation: if within six months after their return, with the punctilious observation of many ceremonies, they conform to the Established Church, and take all the oaths and subscriptions, the legislature, in consideration of the incapable age in which they were sent abroad, of the merit of their early conformity, and to encourage conversions, only confiscates, as in the former case, the whole personal estate, and the profits of the real; in all other respects, restoring and rehabilitating the party.
* * * * *
So far as to property and education. There remain some other heads upon which the acts have changed the course of the Common Law; and first, with regard to the right of self-defence, which consists in the use of arms. This, though one of the rights by the law of Nature, yet is so capable of abuses that it may not be unwise to make some regulations concerning them; and many wise nations have thought proper to set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on occasion of some imminent danger to the public from foreign invasion or domestic commotions.
But provisions in time of trouble proper, and perhaps necessary, may become in time of profound peace a scheme of tyranny. The method which the statute law of Ireland has taken upon this delicate article is, to get rid of all difficulties at once by an universal prohibition to all persons, at all times, and under all circumstances, who are not Protestants, of using or keeping any kind of weapons whatsoever. In order to enforce this regulation, the whole spirit of the Common Law is changed, very severe penalties are enjoined, the largest powers are vested in the lowest magistrates. Any two justices of peace, or magistrates of a town, with or without information, at their pleasure, by themselves or their warrant, are empowered to enter and search the house of any Papist, or even of any other person, whom they suspect to keep such arms in trust for them. The only limitation to the extent of this power is, that the search is to be made between the rising and setting of the sun: but even this qualification extends no further than to the execution of the act in the open country; for in all cities and their suburbs, in towns corporate and market-towns, they may at their discretion, and without information, break open houses and institute such search at any hour of the day or night. This, I say, they may do at their discretion; and it seems a pretty ample power in the hands of such magistrates. However, the matter does by no means totally rest on their discretion. Besides the discretionary and occasional search, the statute has prescribed one that is general and periodical. It is to be made annually, by the warrant of the justices at their midsummer quarter sessions, by the high and petty constables, or any others whom they may authorize, and by all corporate magistrates, in all houses of Papists, and every other where they suspect arms for the use of such persons to be concealed, with the same powers, in all respects, which attend the occasional search. The whole of this regulation, concerning both the general and particular search, seems to have been made by a legislature which was not at all extravagantly jealous of personal liberty. Not trusting, however, to the activity of the magistrate acting officially, the law has invited all voluntary informers by considerable rewards, and even pressed involuntary informers into this service by the dread of heavy penalties. With regard to the latter method, two justices of peace, or the magistrate of any corporation, are empowered to summon before them any persons whatsoever, to tender them an oath by which they oblige them to discover all persons who have any arms concealed contrary to law. Their refusal or declining to appear, or, appearing, their refusal to inform, subjects them to the severest penalties. If peers or peeresses are summoned (for they may be summoned by the bailiff of a corporation of six cottages) to perform this honorable service, and refuse to inform, the first offence is three hundred pounds penalty; the second is praemunire,—that is to say, imprisonment for life, and forfeiture of all their goods. Persons of an inferior order are, for the first offence, fined thirty pounds; for the second, they, too, are subjected to praemunire. So far as to involuntary;—now as to voluntary informers: the law entitles them to half the penalty incurred by carrying or keeping arms; for, on conviction of this offence, the penalty upon persons, of whatever substance, is the sum of fifty pounds and a year's imprisonment, which cannot be remitted even by the crown.
The only exception to this law is a license from the Lord Lieutenant and Council to carry arms, which, by its nature, is extremely limited, and I do not suppose that there are six persons now in the kingdom who have been fortunate enough to obtain it.
* * * * *
There remains, after this system concerning property and defence, to say something concerning the exercise of religion, winch is carried on in all persuasions, but especially in the Romish, by persons appointed for that purpose. The law of King William and Queen Anne ordered all Popish parsons exercising ecclesiastical jurisdiction, all orders of monks and friars, and all priests, not then actually in parishes, and to be registered, to be banished the kingdom; and if they should return from exile, to be hanged, drawn, and quartered. Twenty pounds reward is given for apprehending them. Penalty on harboring and concealing.
As all the priests then in being and registered are long since dead, and as these laws are made perpetual, every Popish priest is liable to the law.
* * * * *
The reader has now before him a tolerably complete view of the Popery laws relative to property by descent or acquisition, to education, to defence, and to the free exercise of religion, which may be necessary to enable him to form some judgment of the spirit of the whole system, and of the subsequent reflections that are to be made upon it.
CHAPTER III.
PART I.
The system which we have just reviewed, and the manner in which religious influence on the public is made to operate upon the laws concerning property in Ireland, is in its nature very singular, and differs, I apprehend, essentially, and perhaps to its disadvantage, from any scheme of religious persecution now existing in any other country in Europe, or which has prevailed in any time or nation with which history has made us acquainted. I believe it will not be difficult to show that it is unjust, impolitic, and inefficacious; that it has the most unhappy influence on the prosperity, the morals, and the safety of that country; that this influence is not accidental, but has flowed as the necessary and direct consequence of the laws themselves, first on account of the object which they affect, and next by the quality of the greatest part of the instruments they employ. Upon all these points, first upon the general, and then on the particular, this question will be considered with as much order as can be followed in a matter of itself as involved and intricate as it is important.
* * * * *
The first and most capital consideration with regard to this, as to every object, is the extent of it. And here it is necessary to premise, this system of penalty and incapacity has for its object no small sect or obscure party, but a very numerous body of men,—a body which comprehends at least two thirds of that whole nation: it amounts to 2,800,000 souls, a number sufficient for the materials constituent of a great people. Now it is well worthy of a serious and dispassionate examination, whether such a system, respecting such an object, be in reality agreeable to any sound principles of legislation or any authorized definition of law; for if our reasons or practices differ from the general informed sense of mankind, it is very moderate to say that they are at least suspicious.
This consideration of the magnitude of the object ought to attend us through the whole inquiry: if it does not always affect the reason, it is always decisive on the importance of the question. It not only makes in itself a more leading point, but complicates itself with every other part of the matter, giving every error, minute in itself, a character and significance from its application. It is therefore not to be wondered at, if we perpetually recur to it in the course of this essay.
In the making of a new law it is undoubtedly the duty of the legislator to see that no injustice be done even to an individual: for there is then nothing to be unsettled, and the matter is under his hands to mould it as he pleases; and if he finds it untractable in the working, he may abandon it without incurring any new inconvenience. But in the question concerning the repeal of an old one, the work is of more difficulty; because laws, like houses, lean on one another, and the operation is delicate, and should be necessary: the objection, in such a case, ought not to arise from the natural infirmity of human institutions, but from substantial faults which contradict the nature and end of law itself,—faults not arising from the imperfection, but from the misapplication and abuse of our reason. As no legislators can regard the minima of equity, a law may in some instances be a just subject of censure without being at all an object of repeal. But if its transgressions against common right and, the ends of just government should be considerable in their nature and spreading in their effects, as this objection goes to the root and principle of the law, it renders it void in its obligatory quality on the mind, and therefore determines it as the proper object of abrogation and repeal, so far as regards its civil existence. The objection here is, as we observed, by no means on account of the imperfection of the law; it is on account of its erroneous principle: for if this be fundamentally wrong, the more perfect the law is made, the worse it becomes. It cannot be said to have the properties of genuine law, even in its imperfections and defects. The true weakness and opprobrium of our best general constitutions is, that they cannot provide beneficially for every particular case, and thus fill, adequately to their intentions, the circle of universal justice. But where the principle is faulty, the erroneous part of the law is the beneficial, and justice only finds refuge in those holes and corners which had escaped the sagacity and inquisition of the legislator. The happiness or misery of multitudes can never be a thing indifferent. A law against the majority of the people is in substance a law against the people itself; its extent determines its invalidity; it even changes its character as it enlarges its operation: it is not particular injustice, but general oppression; and can no longer be considered as a private hardship, which might be borne, but spreads and grows up into the unfortunate importance of a national calamity.
Now as a law directed against the mass of the nation has not the nature of a reasonable institution, so neither has it the authority: for in all forms of government the people is the true legislator; and whether the immediate and instrumental cause of the law be a single person or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely essential to its validity. To the solid establishment of every law two things are essentially requisite: first, a proper and sufficient human power to declare and modify the matter of the law; and next, such a fit and equitable constitution as they have a right to declare and render binding. With regard to the first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason which the necessity of government has made superior to their own. But though the means, and indeed the nature, of a public advantage may not always be evident to the understanding of the subject, no one is so gross and stupid as not to distinguish between a benefit and an injury. No one can imagine, then, an exclusion of a great body of men, not from favors, privileges, and trusts, but from the common advantages of society, can ever be a thing intended for their good, or can ever be ratified by any implied consent of theirs. If, therefore, at least an implied human consent is necessary to the existence of a law, such a constitution cannot in propriety be a law at all.
But if we could suppose that such a ratification was made, not virtually, but actually, by the people, not representatively, but even collectively, still it would be null and void. They have no right to make a law prejudicial to the whole community, even though the delinquents in making such an act should be themselves the chief sufferers by it; because it would be-made against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter,—I mean the will of Him who gave us our nature, and in giving impressed an invariable law upon it. It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position, that any body of men have a right to make what laws they please,—or that laws can derive any authority from their institution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the constitution can be pleaded in favor of such a practice. They may, indeed, impeach the frame of that constitution, but can never touch this immovable principle. This seems to be, indeed, the doctrine which Hobbes broached in the last century, and which was then so frequently and so ably refuted. Cicero exclaims with the utmost indignation and contempt against such a notion:[22] he considers it not only as unworthy of a philosopher, but of an illiterate peasant; that of all things this was the most truly absurd, to fancy that the rule of justice was to be taken from the constitutions of commonwealths, or that laws derived their authority from the statutes of the people, the edicts of princes, or the decrees of judges. If it be admitted that it is not the black-letter and the king's arms that makes the law, we are to look for it elsewhere.
In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same manner with, and derived directly from, our rational nature: for any other utility may be the utility of a robber, but cannot be that of a citizen,—the interest of the domestic enemy, and not that of a member of the commonwealth. This present equality can never be the foundation of statutes which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice. Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action; and so Tully considers it in his Offices as the only utility agreeable to that nature: "Unum debet esse omnibus propositum, ut eadem sit utilitas uniuscujusque et universorum; quam si ad se quisque rapiat, dissolvetur omnis humana consortio."
If any proposition can be clear in itself, it is this: that a law which shuts out from all secure and valuable property the bulk of the people cannot be made for the utility of the party so excluded. This, therefore, is not the utility which Tully mentions. But if it were true (as it is not) that the real interest of any part of the community could be separated from the happiness of the rest, still it would afford no just foundation for a statute providing exclusively for that interest at the expense of the other; because it would be repugnant to the essence of law, which requires that it be made as much as possible for the benefit of the whole. If this principle be denied or evaded, what ground have we left to reason on? We must at once make a total change in all our ideas, and look for a new definition of law. Where to find it I confess myself at a loss. If we resort to the fountains of jurisprudence, they will not supply us with any that is for our purpose. "Jus" (says Paulus) "pluribus modis dicitur: uno modo, cum id, quod semper aequum et bonum est, jus dicitur, ut est jus naturale";—this sense of the word will not be thought, I imagine, very applicable to our penal laws;—"altero modo, quod omnibus aut pluribus in unaquaque civitate utile est, ut est jus civile." Perhaps this latter will be as insufficient, and would rather seem a censure and condemnation of the Popery Acts than a definition that includes them; and there is no other to be found in the whole Digest; neither are there any modern writers whose ideas of law are at all narrower.
It would be far more easy to heap up authorities on this article than to excuse the prolixity and tediousness of producing any at all in proof of a point which, though too often practically denied, is in its theory almost self-evident. For Suarez, handling this very question, Utrum de ratione et substantia legis esse ut propter commune bonum feratur, does not hesitate a moment, finding no ground in reason or authority to render the affirmative in the least degree disputable: "In quaestione ergo proposita" (says he) "nulla est inter authores controversia; sed omnium commune est axioma de substantia et ratione legis esse, ut pro communi bono feratur; ita ut propter illud praecipue tradatur"; having observed in another place, "Contra omnem rectitudinem est bonum commune ad privatum ordinare, seu totum ad partem propter ipsum referre." Partiality and law are contradictory terms. Neither the merits nor the ill deserts, neither the wealth and importance nor the indigence and obscurity, of the one part or of the other, can make any alteration in this fundamental truth. On any other scheme, I defy any man living to settle a correct standard which may discriminate between equitable rule and the most direct tyranny. For if we can once prevail upon ourselves to depart from the strictness and integrity of this principle in favor even of a considerable party, the argument will hold for one that is less so; and thus we shall go on, narrowing the bottom of public right, until step by step we arrive, though after no very long or very forced deduction, at what one of our poets calls the enormous faith,—the faith of the many, created for the advantage of a single person. I cannot see a glimmering of distinction to evade it; nor is it possible to allege any reason for the proscription of so large a part of the kingdom, which would not hold equally to support, under parallel circumstances, the proscription of the whole.
I am sensible that these principles, in their abstract light, will not be very strenuously opposed. Reason is never inconvenient, but when it comes to be applied. Mere general truths interfere very little with the passions. They can, until they are roused by a troublesome application, rest in great tranquillity, side by side with tempers and proceedings the most directly opposite to them. Men want to be reminded, who do not want to be taught; because those original ideas of rectitude, to which the mind is compelled to assent when they are proposed, are not always as present to it as they ought to be. When people are gone, if not into a denial, at least into a sort of oblivion of those ideas, when they know them only as barren speculations, and not as practical motives for conduct, it will be proper to press, as well as to offer them to the understanding; and when one is attacked by prejudices which aim to intrude themselves into the place of law, what is left for us but to vouch and call to warranty those principles of original justice from whence alone our title to everything valuable in society is derived? Can it be thought to arise from a superfluous, vain parade of displaying general and uncontroverted maxims, that we should revert at this time to the first principles of law, when we have directly under our consideration a whole body of statutes, which, I say, are so many contradictions, which their advocates allow to be so many exceptions from those very principles? Take them in the most favorable light, every exception from the original and fixed rule of equality and justice ought surely to be very well authorized in the reason of their deviation, and very rare in their use. For, if they should grow to be frequent, in what would they differ from an abrogation of the rule itself? By becoming thus frequent, they might even go further, and, establishing themselves into a principle, convert the rule into the exception. It cannot be dissembled that this is not at all remote from the case before us, where the great body of the people are excluded from all valuable property,—where the greatest and most ordinary benefits of society are conferred as privileges, and not enjoyed on the footing of common rights.
The clandestine manner in which those in power carry on such designs is a sufficient argument of the sense they inwardly entertain of the true nature of their proceedings. Seldom is the title or preamble of the law of the same import with the body and enacting part; but they generally place some other color uppermost, which differs from that which is afterwards to appear, or at least one that is several shades fainter. Thus, the penal laws in question are not called laws to oblige men baptized and educated in Popery to renounce their religion or their property, but are called laws to prevent the growth of Popery; as if their purpose was only to prevent conversions to that sect, and not to persecute a million of people already engaged in it. But of all the instances of this sort of legislative artifice, and of the principles that produced it, I never met with any which made a stronger impression on me than that of Louis the Fourteenth, in the revocation of the Edict of Nantes. That monarch had, when he made that revocation, as few measures to keep with public opinion as any man. In the exercise of the most unresisted authority at home, in a career of uninterrupted victory abroad, and in a course of flattery equal to the circumstances of his greatness in both these particulars, he might be supposed to have as little need as disposition to render any sort of account to the world of his procedure towards his subjects. But the persecution of so vast a body of men as the Huguenots was too strong a measure even for the law of pride and power. It was too glaring a contradiction even to those principles upon which persecution itself is supported. Shocked at the naked attempt, he had recourse, for a palliation of his conduct, to an unkingly denial of the fact which made against him. In the preamble, therefore, to his Act of Revocation, he sets forth that the Edict of Nantes was no longer necessary, as the object of it (the Protestants of his kingdom) were then reduced to a very small number. The refugees in Holland cried out against this misrepresentation. They asserted, I believe with truth, that this revocation had driven two hundred thousand of them out of their country, and that they could readily demonstrate there still remained six hundred thousand Protestants in France. If this were the fact, (as it was undoubtedly,) no argument of policy could have been strong enough to excuse a measure by which eight hundred thousand men were despoiled, at one stroke, of so many of their rights and privileges. Louis the Fourteenth confessed, by this sort of apology, that, if the number had been large, the revocation had been unjust. But, after all, is it not most evident that this act of injustice, which let loose on that monarch such a torrent of invective and reproach, and which threw so dark a cloud over all the splendor of a most illustrious reign, falls far short of the case in Ireland? The privileges which the Protestants of that kingdom enjoyed antecedent to this revocation were far greater than the Roman Catholics of Ireland ever aspired to under a contrary establishment. The number of their sufferers, if considered absolutely, is not half of ours; if considered relatively to the body of each community, it is not perhaps a twentieth part. And then the penalties and incapacities which grew from that revocation are not so grievous in their nature, nor so certain in their execution, nor so ruinous by a great deal to the civil prosperity of the state, as those which we have established for a perpetual law in our unhappy country. It cannot be thought to arise from affectation, that I call it so. What other name can be given to a country which contains so many hundred thousands of human creatures reduced to a state of the most abject servitude?
In putting this parallel, I take it for granted that we can stand for this short time very clear of our party distinctions. If it were enough, by the use of an odious and unpopular word, to determine the question, it would be no longer a subject of rational disquisition; since that very prejudice which gives these odious names, and which is the party charged for doing so, and for the consequences of it, would then become the judge also. But I flatter myself that not a few will be found who do not think that the names of Protestant and Papist can make any change in the nature of essential justice. Such men will not allow that to be proper treatment to the one of these denominations which would be cruelty to the other, and which converts its very crime into the instrument of its defence: they will hardly persuade themselves that what was bad policy in France can be good in Ireland, or that what was intolerable injustice in an arbitrary monarch becomes, only by being more extended and more violent, an equitable procedure in a country professing to be governed by law. It is, however, impossible not to observe with some concern, that there are many also of a different disposition,—a number of persons whose minds are so formed that they find the communion of religion to be a close and an endearing tie, and their country to be no bond at all,—to whom common altars are a better relation than common habitations and a common civil interest,—whose hearts are touched with the distresses of foreigners, and are abundantly awake to all the tenderness of human feeling on such an occasion, even at the moment that they are inflicting the very same distresses, or worse, on their fellow-citizens, without the least sting of compassion or remorse. To commiserate the distresses of all men suffering innocently, perhaps meritoriously, is generous, and very agreeable to the better part of our nature,—a disposition that ought by all means to be cherished. But to transfer humanity from its natural basis, our legitimate and home-bred connections,—to lose all feeling for those who have grown up by our sides, in our eyes, the benefit of whose cares and labors we have partaken from our birth, and meretriciously to hunt abroad after foreign affections, is such a disarrangement of the whole system of our duties, that I do not know whether benevolence so displaced is not almost the same thing as destroyed, or what effect bigotry could have produced that is more fatal to society. This no one could help observing, who has seen our doors kindly and bountifully thrown open to foreign sufferers for conscience, whilst through the same ports were issuing fugitives of our own, driven from their country for a cause which to an indifferent person would seem to be exactly similar, whilst we stood by, without any sense of the impropriety of this extraordinary scene, accusing and practising injustice. For my part, there is no circumstance, in all the contradictions of our most mysterious nature, that appears to be more humiliating than the use we are disposed to make of those sad examples which seem purposely marked for our correction and improvement. Every instance of fury and bigotry in other men, one should think, would naturally fill us with an horror of that disposition. The effect, however, is directly contrary. We are inspired, it is true, with a very sufficient hatred for the party, but with no detestation at all of the proceeding. Nay, we are apt to urge our dislike of such measures as a reason for imitating them,—and, by an almost incredible absurdity, because some powers have destroyed their country by their persecuting spirit, to argue, that we ought to retaliate on them by destroying our own. Such are the effects, and such, I fear, has been the intention, of those numberless books which are daily printed and industriously spread, of the persecutions in other countries and other religious persuasions.—These observations, which are a digression, but hardly, I think, can be considered as a departure from the subject, have detained us some time: we will now come more directly to our purpose.
It has been shown, I hope with sufficient evidence, that a constitution against the interest of the many is rather of the nature of a grievance than of a law; that of all grievances it is the most weighty and important; that it is made without due authority, against all the acknowledged principles of jurisprudence, against the opinions of all the great lights in that science; and that such is the tacit sense even of those who act in the most contrary manner. These points are, indeed, so evident, that I apprehend the abettors of the penal system will ground their defence on an admission, and not on a denial of them. They will lay it down as a principle, that the Protestant religion is a thing beneficial for the whole community, as well in its civil interests as in those of a superior order. From thence they will argue, that, the end being essentially beneficial, the means become instrumentally so; that these penalties and incapacities are not final causes of the law, but only a discipline to bring over a deluded people to their real interest, and therefore, though they may be harsh in their operation, they will be pleasant in their effects; and be they what they will, they cannot be considered as a very extraordinary hardship, as it is in the power of the sufferer to free himself when he pleases, and that only by converting to a better religion, which it is his duty to embrace, even though it were attended with all those penalties from whence in reality it delivers him: if he suffers, it is his own fault; volenti non fit injuria.
I shall be very short, without being, I think, the less satisfactory, in my answer to these topics, because they never can be urged from a conviction of their validity, and are, indeed, only the usual and impotent struggles of those who are unwilling to abandon a practice which they are unable to defend. First, then, I observe, that, if the principle of their final and beneficial intention be admitted as a just ground for such proceedings, there never was, in the blamable sense of the word, nor ever can be, such a thing as a religious persecution in the world. Such an intention is pretended by all men,—who all not only insist that their religion has the sanction of Heaven, but is likewise, and for that reason, the best and most convenient to human society. All religious persecution, Mr. Bayle well observes, is grounded upon a miserable petitio principii. You are wrong, I am right; you must come over to me, or you must suffer. Let me add, that the great inlet by which a color for oppression has entered into the world is by one man's pretending to determine concerning the happiness of another, and by claiming a right to use what means he thinks proper in order to bring him to a sense of it. It is the ordinary and trite sophism of oppression. But there is not yet such a convenient ductility in the human understanding as to make us capable of being persuaded that men can possibly mean the ultimate good of the whole society by rendering miserable for a century together the greater part of it,—or that any one has such a reversionary benevolence as seriously to intend the remote good of a late posterity, who can give up the present enjoyment which every honest man must have in the happiness of his contemporaries. Everybody is satisfied that a conservation and secure enjoyment of our natural rights is the great and ultimate purpose of civil society, and that therefore all forms whatsoever of government are only good as they are subservient to that purpose to which they are entirely subordinate. Now to aim at the establishment of any form of government by sacrificing what is the substance of it, to take away or at least to suspend the rights of Nature in order to an approved system for the protection of them, and for the sake of that about which men must dispute forever to postpone those things about which they have no controversy at all, and this not in minute and subordinate, but large and principal objects, is a procedure as preposterous and absurd in argument as it is oppressive and cruel in its effect. For the Protestant religion, nor (I speak it with reverence, I am sure) the truth of our common Christianity, is not so clear as this proposition,—that all men, at least the majority of men in the society, ought to enjoy the common advantages of it. You fall, therefore, into a double error: first, you incur a certain mischief for an advantage which is comparatively problematical, even though you were sure of obtaining it; secondly, whatever the proposed advantage may be, were it of a certain nature, the attainment of it is by no means certain; and such deep gaming for stakes so valuable ought not to be admitted: the risk is of too much consequence to society. If no other country furnished examples of this risk, yet our laws and our country are enough fully to demonstrate the fact: Ireland, after almost a century of persecution, is at this hour full of penalties and full of Papists. This is a point which would lead us a great way; but it is only just touched here, having much to say upon it in its proper place. So that you have incurred a certain and an immediate inconvenience for a remote and for a doubly uncertain benefit.—Thus far as to the argument which would sanctify the injustice of these laws by the benefits which are proposed to arise from them, and as to that liberty which, by a new political chemistry, was to be extracted out of a system of oppression.
Now as to the other point, that the objects of these laws suffer voluntarily: this seems to me to be an insult rather than an argument. For, besides that it totally annihilates every characteristic and therefore every faulty idea of persecution, just as the former does, it supposes, what is false in fact, that it is in a man's moral power to change his religion whenever his convenience requires it. If he be beforehand satisfied that your opinion is better than his, he will voluntarily come over to you, and without compulsion, and then your law would be unnecessary; but if he is not so convinced, he must know that it is his duty in this point to sacrifice his interest here to his opinion of his eternal happiness, else he could have in reality no religion at all. In the former case, therefore, as your law would be unnecessary, in the latter it would be persecuting: that is, it would put your penalty and his ideas of duty in the opposite scales; which is, or I know not what is, the precise idea of persecution. If, then, you require a renunciation of his conscience, as a preliminary to his admission to the rights of society, you annex, morally speaking, an impossible condition to it. In this case, in the language of reason and jurisprudence, the condition would be void, and the gift absolute; as the practice runs, it is to establish the condition, and to withhold the benefit. The suffering is, then, not voluntary. And I never heard any other argument, drawn from the nature of laws and the good of human society, urged in favor of those proscriptive statutes, except those which have just been mentioned.
FOOTNOTES:
[22] Cicero de Legibus, Lib. L 14,15 et 16.—"O rem dignam, in qua non modo docti, verum etiam agrestes erubescant! Jam vero illud stultissimum existimare omnia justa esse, quae scita sint in populorum institutis aut legibus," etc. "Quod si populorum jussis, si principum decretis, si sententiis judicum jura constituerentur, jus esset latrocinari, jus adulterare, jus testamenta falsa supponere, si haec suffragiis aut scitis multitudinis probarentur."
CHAPTER III.
PART II.
The second head upon which I propose to consider those statutes with regard to their object, and which is the next in importance to the magnitude, and of almost equal concern in the inquiry into the justice of these laws, is its possession. It is proper to recollect that this religion, which is so persecuted in its members, is the old religion of the country, and the once established religion of the state,—the very same which had for centuries received the countenance and sanction of the laws, and from which it would at one time have been highly penal to have dissented. In proportion as mankind has become enlightened, the idea of religious persecution, under any circumstances, has been almost universally exploded by all good and thinking men. The only faint shadow of difficulty which remains is concerning the introduction of new opinions. Experience has shown, that, if it has been favorable to the cause of truth, it has not been always conducive to the peace of society. Though a new religious sect should even be totally free in itself from any tumultuous and disorderly zeal, which, however, is rarely the case, it has a tendency to create a resistance from the establishment in possession, productive of great disorders, and thus becomes, innocently indeed, but yet very certainly, the cause of the bitterest dissensions in the commonwealth. To a mind not thoroughly saturated with the tolerating maxims of the Gospel, a preventive persecution, on such principles, might come recommended by strong, and, apparently, no immoral motives of policy, whilst yet the contagion was recent, and had laid hold but on a few persons. The truth is, these politics are rotten and hollow at bottom, as all that are founded upon any however minute a degree of positive injustice must ever be. But they are specious, and sufficiently so to delude a man of sense and of integrity. But it is quite otherwise with the attempt to eradicate by violence a wide-spreading and established religious opinion. If the people are in an error, to inform them is not only fair, but charitable; to drive them is a strain of the most manifest injustice. If not the right, the presumption, at least, is ever on the side of possession. Are they mistaken? if it does not fully justify them, it is a great alleviation of guilt, which may be mingled with their misfortune, that the error is none of their forging,—that they received it on as good a footing as they can receive your laws and your legislative authority, because it was handed down to them from their ancestors. The opinion may be erroneous, but the principle is undoubtedly right; and you punish them for acting upon a principle which of all others is perhaps the most necessary for preserving society, an implicit admiration and adherence to the establishments of their forefathers.
If, indeed, the legislative authority was on all hands admitted to be the ground of religious persuasion, I should readily allow that dissent would be rebellion. In this case it would make no difference whether the opinion was sucked in with the milk or imbibed yesterday; because the same legislative authority which had settled could destroy it with all the power of a creator over his creature. But this doctrine is universally disowned, and for a very plain reason. Religion, to have any force on men's understandings, indeed to exist at all, must be supposed paramount to laws, and independent for its substance upon any human institution,—else it would be the absurdest thing in the world, an acknowledged cheat. Religion, therefore, is not believed because the laws have established it, but it is established because the leading part of the community have previously believed it to be true. As no water can rise higher than its spring, no establishment can have more authority than it derives from its principle; and the power of the government can with no appearance of reason go further coercively than to bind and hold down those who have once consented to their opinions. The consent is the origin of the whole. If they attempt to proceed further, they disown the foundation upon which their own establishment was built, and they claim a religious assent upon mere human authority, which has been just now shown to be absurd and preposterous, and which they in fact confess to be so.
However, we are warranted to go thus far. The people often actually do (and perhaps they cannot in general do better) take their religion, not on the coercive, which is impossible, but on the influencing authority of their governors, as wise and informed men. But if they once take a religion on the word of the state, they cannot in common sense do so a second time, unless they have some concurrent reason for it. The prejudice in favor of your wisdom is shook by your change. You confess that you have been wrong, and yet you would pretend to dictate by your sole authority; whereas you disengage the mind by embarrassing it. For why should I prefer your opinion of to-day to your persuasion of yesterday? If we must resort to prepossessions for the ground of opinion, it is in the nature of man rather to defer to the wisdom of times past, whose weakness is not before his eyes, than to the present, of whose imbecility he has daily experience. Veneration of antiquity is congenial to the human, mind. When, therefore, an establishment would persecute an opinion in possession, it sets against it all the powerful prejudices of human nature. It even sets its own authority, when it is of most weight, against itself in that very circumstance in which it must necessarily have the least; and it opposes the stable prejudice of time against a new opinion founded on mutability: a consideration that must render compulsion in such a case the more grievous, as there is no security, that, when the mind is settled in the new opinion, it may not be obliged to give place to one that is still newer, or even, to a return of the old. But when an ancient establishment begins early to persecute an innovation, it stands upon quite other grounds, and it has all the prejudices and presumptions on its side. It puts its own authority, not only of compulsion, but prepossession, the veneration of past age, as well as the activity of the present time, against the opinion only of a private man or set of men. If there be no reason, there is at least some consistency in its proceedings. Commanding to constancy, it does nothing but that of which it sets an example itself. But an opinion at once new and persecuting is a monster; because, in the very instant in which it takes a liberty of change, it does not leave to you even a liberty of perseverance.
Is, then, no improvement to be brought into society? Undoubtedly; but not by compulsion,—but by encouragement,—but by countenance, favor, privileges, which are powerful, and are lawful instruments. The coercive authority of the state is limited to what is necessary for its existence. To this belongs the whole order of criminal law. It considers as crimes (that is, the object of punishment) trespasses against those rules for which society was instituted. The law punishes delinquents, not because they are not good men, but because they are intolerably wicked. It does bear, and must, with the vices and the follies of men, until they actually strike at the root of order. This it does in things actually moral. In all matters of speculative improvement the case is stronger, even where the matter is properly of human cognizance. But to consider an averseness to improvement, the not arriving at perfection, as a crime, is against all tolerably correct jurisprudence; for, if the resistance to improvement should be great and any way general, they would in effect give up the necessary and substantial part in favor of the perfection and the finishing.
But, say the abettors of our penal laws, this old possessed superstition is such in its principles, that society, on its general principles, cannot subsist along with it. Could a man think such an objection possible, if he had not actually heard it made,—an objection contradicted, not by hypothetical reasonings, but the clear evidence of the most decisive facts? Society not only exists, but flourishes at this hour, with this superstition, in many countries, under every form of government,—in some established, in some tolerated, in others upon an equal footing. And was there no civil society at all in these kingdoms before the Reformation? To say it was not as well constituted as it ought to be is saying nothing at all to the purpose; for that assertion evidently regards improvement, not existence. It certainly did then exist; and it as certainly then was at least as much to the advantage of a very great part of society as what we have brought in the place of it: which is, indeed, a great blessing to those who have profited of the change; but to all the rest, as we have wrought, that is, by blending general persecution with partial reformation, it is the very reverse. We found the people heretics and idolaters; we have, by way of improving their condition, rendered them slaves and beggars: they remain in all the misfortune of their old errors, and all the superadded misery of their recent punishment. They were happy enough, in their opinion at least, before the change; what benefits society then had, they partook of them all. They are now excluded from those benefits; and, so far as civil society comprehends them, and as we have managed the matter, our persecutions are so far from being necessary to its existence, that our very reformation is made in a degree noxious. If this be improvement, truly I know not what can be called a depravation of society.
But as those who argue in this manner are perpetually shifting the question, having begun with objecting, in order to give a fair and public color to their scheme, to a toleration of those opinions as subversive of society in general, they will surely end by abandoning the broad part of the argument, and attempting to show that a toleration of them is inconsistent with the established government among us. Now, though this position be in reality as untenable as the other, it is not altogether such an absurdity on the face of it. All I shall here observe is, that those who lay it down little consider what a wound they are giving to that establishment for which they pretend so much zeal. However, as this is a consideration, not of general justice, but of particular and national policy, and as I have reserved a place expressly, where it will undergo a thorough discussion, I shall not here embarrass myself with it,—being resolved to preserve all the order in my power, in the examination of this important, melancholy subject.
However, before we pass from this point concerning possession, it will be a relaxation of the mind, not wholly foreign to our purpose, to take a short review of the extraordinary policy which has been held with regard to religion in that kingdom, from the time our ancestors took possession of it. The most able antiquaries are of opinion, and Archbishop Usher, whom I reckon amongst the first of them, has, I think, shown, that a religion not very remote from the present Protestant persuasion was that of the Irish before the union of that kingdom to the crown of England. If this was not directly the fact, this at least seems very probable, that Papal authority was much lower in Ireland than in other countries. This union was made under the authority of an arbitrary grant of Pope Adrian, in order that the Church of Ireland should be reduced to the same servitude with those that were nearer to his see. It is not very wonderful that an ambitious monarch should make use of any pretence in his way to so considerable an object. What is extraordinary is, that for a very long time, even quite down to the Reformation, and in their most solemn acts, the kings of England founded their title wholly on this grant: they called for obedience from the people of Ireland, not on principles of subjection, but as vassals and mesne lords between them and the Popes; and they omitted no measure of force or policy to establish that Papal authority, with all the distinguishing articles of religion connected with it, and to make it take deep root in the minds of the people. Not to crowd instances unnecessary, I shall select two, one of which is in print, the other on record,—the one a treaty, the other an act of Parliament. The first is the submission of the Irish chiefs to Richard the Second, mentioned by Sir John Davies. In this pact they bind themselves for the future to preserve peace and allegiance to the kings of England, under certain pecuniary penalties. But what is remarkable, these fines were all covenanted to be paid into the Apostolical Chamber, supposing the Pope as the superior power, whose peace was broken and whose majesty was violated in disobeying his governor. By this time, so far as regarded England, the kings had extremely abridged the Papal power in many material particulars: they had passed the Statute of Provisors, the Statute of Praemunire,—and, indeed, struck out of the Papal authority all things, at least, that seemed to infringe on their temporal independence. In Ireland, however, their proceeding was directly the reverse: there they thought it expedient to exalt it at least as high as ever: for, so late as the reign of Edward the Fourth, the following short, but very explicit, act of Parliament was passed:— |
|
