Tracts Relative to the Laws against Popery in Ireland (1760-65)

in

Letters, Speeches and Tracts
on Irish Affairs

by
Edmund Burke

collected and arranged by Matthew Arnold
with a preface

Macmillan and Co. 1881

Chapter I: Fragments of a 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. [n.1] {1}

Chap. II. states particularly the laws themselves in a plain and popular manner.

Chap. 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.

Chap. IV. The impolicy of those laws as they affect the national security.

Chap. V. Seasons by which the laws are supported, and answers to them.

Note 1: The condition of the Roman Catholics in Ireland appears to have 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 draft. 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 draft; and to this we have added a fragment which appears to have been a part either of this or the first chapter.

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 {4} 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 was 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 {5} 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 life-time 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 for ever.

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 age 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 {6} 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 pre- carious, 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 the 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 {7} 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 new 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 favour of such children. {8}

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 authorised, 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 farther. 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 {9} 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 for ever, at the earliest age, from his house and family; for the Lord Chancellor is not only authorised, 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 a 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. {10}

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 exe- cutes 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 fixed 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 misdemeanours to her husband by the public merit of conformity to the Protestant religion, the law will suffer no plea of such misdemeanours 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 favour, 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. {11} what in his opinion was the good or ill behaviour 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 2dly, 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 {12} 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 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 favour 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 unnecessary 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 {13} 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 {14} 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 {15} of our authorised 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 favour. 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 for ever, 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, ore 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 {16} 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 £200 - to appear and take their trial at the next Quarter Sessions. Here the Justices are to re-examine 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. {17}

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 favour 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 {18} 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 farther 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, {19} 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 authorise, 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 honourable service, and {20} refuse to inform, the first offence is £300 penalty; the second is Premunire - that is to say, imprisonment for life, and forfeiture of all their goods. Persons of an inferior order are, for their first offence, fined £30; for the second, they too are subjected to Premunire . 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 £50 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, which 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 harbouring and concealing.

As all the priests then in being and registered are {21} 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 {22} 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 authorised 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. {23}

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 {24} not 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 {25} 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 favours, 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 {26} 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 favour 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 [n1]; 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 {27} 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 {28} so Tully considers it in his offices as the only utility agreeable to that nature; unum debet esse omnibus propositum, ut eadem sit utilitas unius eujusq; et universorum; quam si ad se quisq; rapiat, dissolvetur omnis humana consortia.

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; una 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 unâguâque civitate utile est, ut est Jus civile . Perhaps this latter will be as insufficient, {29} 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 substantiâ Legis esse ut propter commune honum 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 propositâ (says he) mâla est inter authores controversia; sed omnium commune est axioma de substantiâ et ratione Legis esse, ut pro communi bono feratur; ita ut propter illud precipuè 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, {30} in favour 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 {31} 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 favourable light, every exception from the original and fixed rule of equality and justice ought surely to be very well authorised 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 farther, 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 {32} of the same import with the body and enacting part; but they generally place some other colour 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 XIV 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. {33}

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 20,000 of them out of their country; and that they could readily demonstrate there still remained 600,000 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 800,000 men were despoiled, at one stroke, of so many of their rights and privileges. Louis XIV. 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 splendour 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 {34} 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 {35} 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 homebred connections; to lose all feeling for those who have grown up by our sides, in our eyes, the benefit of whose cares and labours 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 {36} 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 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; {37} 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 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, {38} and are indeed only the usual and impotent straggles 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 blameable 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 colour 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 {39} 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 for ever - 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 {40} 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 fault 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 {41} 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 favour of those proscriptive statutes except those which have just been mentioned.

Note 1 . Cicero de Legibus, lib. prim. 15 and 16. O rem dignam, in quâ non modo docti, verim etiam agrestes erubescant! Jam vero illud stultissimum existimare omnia justa esse, quae scita sunt in populorum institutis aut legibus, &c. 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 {42} 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 favourable 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? {48} 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 {44} 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 farther 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 favour of your wisdom is shaken 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 passed, whose weak ness 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, {45} 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 circum stance 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, favour, privileges - which are powerful and are lawful instruments. The coercive authority of the State is limited to what is necessary {46} 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 roles 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 cognisance. 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 favour 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 {47} 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 by 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 colour to their scheme - to a toleration of those opinions as subversive of society in general, they will surely end by abandoning the {48} 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 {49} 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 mean 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 unnecessarily, 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 II, mentioned by Sir John Davis. 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 {60} particulars; they had passed the Statute of Provisors; the Statute of Premunire; 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 IV, the following short but very explicit Act of Parliament was passed:

IV. Ed. Cap. 3: An Act, whereby letters patent of pardon from the king to those that sue to Rome for certain benefices is void. Rot. Parl.

Item, At the request of the Commons it is ordeyned and established, by authority of the said Parliament, that all maner letters patents of the king, of pardons or pardon granted by the king, or hereafter to be granted to any provisor, that claim any title by the bulls of the Pope to any maner benefices, where at the time of the impetrating of the said bulls of provision, the benefice is full of an incumbent, that then the said letters patents of pardon or pardons be void in law and of none effect.

When by every, expedient of force and policy, by a {51} war of some centuries, by extirpating a number of the old, and by bringing in a number of new people full of those opinions, and intending to propagate them, they had fully compassed their object, they suddenly took another turn; commenced an opposite persecution, made heavy laws, carried on mighty wars, inflicted and suffered the worst evils, extirpated the mass of the old, brought in new inhabitants; and they continue at this day an oppressive system, and may for four hundred years to come, to eradicate opinions which, by the same violent means they had been four hundred years endeavouring by every means to establish. They compelled the people to submit, by the forfeiture of all their civil rights, to the Pope’s authority, in its most extravagant and unbounded sense, as a giver of kingdoms; and now they refuse even to tolerate them in the most moderate and chastised sentiments concerning it No country, I believe, since the world began, has suffered so much on account of religion; or has been so variously harassed both for Popery and for Protestantism.

It will now be seen, that, even if these laws could be supposed agreeable to those of Nature in these particulars, on another and almost as strong a principle they are yet unjust, as being contrary to positive compact, and the public faith most solemnly plighted. On the surrender of Limerick, and some other Irish garrisons, in the war of the Revolution, the Lords Justices of Ireland, and the commander-in-chief of the king’s {62} forces, signed a capitulation with the Irish, which was afterwards ratified by the king himself, by Inspeximus under the great seal of England. It contains some public articles relative to the whole body of the Roman Catholics in that kingdom, and some with regard to the security of the greater part of the inhabitants of five counties. What the latter were, or in what manner they were observed, is at this day of much less public concern. The former are two, the 1st and the 9th. The first is of this tenour. The Roman Catholics of this kingdom (Ireland) shall enjoy such privileges, in the exercise of their religion, as are consistent with the laws of Ireland, or as they did enjoy in the reign of King Charles II; and their Majesties, as soon as their affairs will permit them to summon a Parliament in this kingdom, will endeavour to procure the said Roman Catholics such further security in that particular as may preserve them from any disturbance on account of their religion. The ninth article is to this effect. The oath to be administered to such Roman Catholics as submit to their Majesties’ Government, shall be the oath aforesaid, and no other; viz. the oath of allegiance, made by Act of Parliament in England, in the first year of their then Majesties; as required by the second of the articles of Limerick. Compare this latter article with the penal laws, as they are stated in the second chapter, and judge whether they seem to be the public Acts of the same power, and observe whether other oaths are tendered to them, and under what penalties. Compare {63} the former with the same laws, from the beginning to the end; and judge whether the Roman Catholics have been preserved, agreeably to the sense of the article, from any disturbance upon account of their religion; or rather, whether on that account there is a single right of nature, or benefit of society, which has not been either totally taken away or considerably impaired.

But it is said that the Legislature was not bound by this article, as it has never been ratified in Parliament I do admit that it never had that sanction, and that the Parliament was under no obligation to ratify these articles by any express Act of theirs. But still I am at a loss how they came to be the less valid, on the principles of our constitution, by being without that sanction. They certainly bound the king and his successors. The words of the article do this; or they do nothing; and so far as the Crown had a share in passing those Acts, the public faith was unquestionably broken. In Ireland such a breach on the part of the Crown was much more unpardonable in administration, than it would have been here. They have in Ireland a way of preventing any Bill even from approaching the Royal Presence, in matters of far less importance than the honour and faith of the Crown, and the well-being of a great body of the people. For, besides that they might have opposed the very first suggestion of it in the House of Commons, it could not be framed into a Bill without the approbation of the {64} Council in Ireland. It could not be returned to them again without the approbation of the King and Council here. They might have met it again in its second passage through that House of Parliament, in which it was originally suggested, as well as in the other. If it had escaped them through all these mazes, it was again to come before the Lord Lieutenant, who might have sunk it by a refusal of the royal assent. The constitution of Ireland has interposed all those checks to the passing of any constitutional Act, however insignificant m its own nature. But did the Administration in that reign avail themselves of any one of those opportunities? They never gave the Act of the 11th of Queen Anne the least degree of opposition in any one stage of its progress. What is rather the fact, many of the Queen’s servants encouraged it, recommended it, were, in reality, the true authors of its passing in Parliament, instead of recommending and using their utmost endeavour to establish a law directly opposite in its tendency, as they were bound to do by the express letter of the very first article of the Treaty of Limerick. To say nothing further of the Ministry, who in this instance most shamefully betrayed the faith of Government, may it not be a matter of some degree of doubt, whether the Parliament, who do not claim a right of dissolving the force of moral obligation, did not make themselves a party in this breach of contract, by presenting a Bill to the Crown in direct violation of those Articles so solemnly and so recently {65} executed, which by the constitution they had fall authority to execute?

It may be further objected that, when the Irish requested the ratification of Parliament to those articles, they did, in effect, themselves entertain a doubt concerning their validity without such a ratification. To this I answer, that the collateral security was meant to bind the Crown, and to hold it firm to its engagements. They did not, therefore, call it a perfecting of the security, but an additional security, which it could not have been, if the first had been void; for the Parliament could not bind itself more than the Crown had bound itself. And if all had made but one security, neither of them could be called additional with propriety or common sense. But let us suppose that they did apprehend there might have been something wanting in this security without the sanction of Parliament. They were, however, evidently mistaken; and this surplusage of theirs did not weaken the validity of the single contract, upon the known principle of law, Non Solent, quae abundant, vitiare scripturas . For nothing is more evident than that the Crown was bound, and that no Act can be made without the royal assent. But the constitution will warrant us in going a great deal farther, and in affirming that a treaty executed by the Crown, and contradictory of no preceding law, is full as binding on the whole body of the nation as if it had twenty times received the sanction of Parliament; because the very same constitution, which has {56} given to the Houses of Parliament their definite authority, has also left in the Crown the trust of making peace, as a consequence, and much the best consequence, of the prerogative of making war. If the peace was ill made, my Lord Galway, Coningsby, and Porter, who signed it, were responsible; because they were subject to the community. But its own contracts are not subject to it. It is subject to them; and the compact of the king acting constitutionally was the compact of the nation.

Observe what monstrous consequences would result from a contrary position. A foreign enemy has entered, or a strong domestic one has arisen in the nation. In such events the circumstances may be, and often have been, such that a Parliament cannot sit. This was precisely the case in that rebellion in Ireland. It will be admitted also that their power may be so great as to make it very prudent to treat with them, in order to save effusion of blood, perhaps to save the nation. Now, could such a treaty be at all made if your enemies, or rebels, were fully persuaded that, in these times of confusion, there was no authority in the State which could hold out to them an inviolable pledge for their future security; but that there lurked in the constitution a dormant but irresistible power, who would not think itself bound by the ordinary subsisting and contracting authority, but might rescind its acts and obligations at pleasure? This would be a doctrine made to perpetuate and exasperate war; and on that {57} principle it directly impugns the law of nations, which is built upon this principle, that war should be softened as much as possible, and that it should cease as soon as possible between contending parties and communities. The king has a power to pardon individuals. If the king holds out his faith to a robber to come in on a promise of pardon, of life and estate, and, in all respects, of a full indemnity, shall the Parliament say that he must, nevertheless, be executed, that his estate must be forfeited, or that he shall be abridged of any of the privileges which he before held as a subject? Nobody will affirm it. In such a case the breach of faith would not only be on the part of the king, who assented to such an act, but on the part of the Parliament, who made it. As the king represents the whole contracting capacity of the nation, so far as his prerogative (unlimited, as I said before, by any precedent law) can extend, he acts as the national procurator on all such occasions. What is true of a robber is true of a rebel; and what is true of one robber or rebel is as true - and it is a much more important truth - of one hundred thousand.

To urge this part of the argument farther is indeed, I fear, not necessary, for two reasons. First, that it seems tolerably evident in itself; and next, that there is but too much ground to apprehend that the actual ratification of Parliament would, in the then temper of parties, have proved but a very slight and trivial security. Of this there is a very strong example in {68} the history of those very articles. For, though the Parliament omitted in the reign of King William to ratify the first and most general of them, they did actually confirm the second and more limited - that which related to the security of the inhabitants of those five counties which were in arms when the treaty was made.

Chapter IV
In the foregoing book we considered these laws in a very simple point of view, and in a very general one - merely as a system of hardship imposed on the body of the community; and from thence and from some other arguments inferred the general injustice of such a procedure. In this we shall be obliged to be more minute; and the matter will become more complex as we undertake to demonstrate the mischievous and impolitic consequences, which the particular mode of this oppressive system, and the instruments which it employs, operating, as we said, on this extensive object, produce on the national prosperity, quiet, and security.

The stock of materials by which any nation is rendered flourishing and prosperous, are its industry, its knowledge or skill, its morals, its execution of justice, its courage, and the national union in directing these powers to one point, and making them all centre in the public benefit. Other than these I do {59}

not know, and scarcely can conceive any means by which a community may flourish.

If we show that these penal laws of Ireland destroy not one only, but every one of these materials of public prosperity, it will not be difficult to perceive that Great Britain, whilst they subsist, never can draw from that country all the advantages to which the bounty of nature has entitled it.

To begin with the first great instrument of national happiness and strength - its industry - I must observe that although these penal laws do indeed inflict many hardships on those who are obnoxious to them, yet their chief, their most extensive and most certain operation is upon property. Those civil constitutions which promote industry are such as facilitate the acquisition, secure the holding, enable the fixing, and suffer the alienation of property. Every law which obstructs it in any part of its distribution is, in proportion to the force and extent of the obstruction, a discouragement to industry. For a law against property is a law against industry, the latter having always the former, and nothing else, for its object. Now as to the acquisition of landed property, which is the foundation and support of all the other kinds, the laws have disabled three-fourths of the inhabitants of Ireland from acquiring any estate of inheritance for life or years, or any charge whatsoever, on which two-thirds of the improved yearly value are not reserved for thirty years. {60}

This confinement of landed property to one set of hands, and preventing its free circulation through the community, is a most leading article of ill policy, because it is one of the most capital discouragements to all that industry which may be employed on the lasting improvement of the soil, or is any way conversant about land. A tenure of thirty years is evidently no tenure upon which to build, to plant, to raise enclosures, to change the nature of the ground, to make any new experiment which might improve agriculture, or to do anything more than what may answer the immediate and momentary calls of rent to the landlord, and leave subsistence to the tenant and his family. The desire of acquisition is always a passion of long views. Confine a man to momentary possession, and you at once cut off that laudable avarice which every wise State has cherished as one of the first principles of its greatness. Allow a man but a temporary possession, lay it down as a maxim that he never can have any other, and you immediately and infallibly turn him to temporary enjoyments; and these enjoyments are never the pleasures of labour and free industry, whose quality it is to famish the present hours, and squander all upon prospect and futurity; they are, on the contrary, those of a thoughtless, loitering, and dissipated life. The people must be inevitably disposed to such pernicious habits merely from the short duration of their tenure which the law has {61} allowed. But it is not enough that industry is checked by the confinement of its views; it is further discouraged by the limitation of its own direct object - profit. This is a regulation extremely worthy of our attention, as it is not a consequential, but a direct discouragement to melioration, as directly as if the law had said in express terms, “Thou shalt not improve.”

But we have an additional argument to demonstrate the ill policy of denying the occupiers of land any solid property in it. Ireland is a country wholly unplanted. The farms have neither dwelling-houses nor good offices, nor are the lands almost anywhere provided with fences and communications; in a word, in a very unimproved state. The land-owner there never takes upon him, as it is usual in this kingdom, to supply all these conveniences, and to set down his tenant in what may be called a completely furnished farm. If the tenant will not do it, it is never done. This circumstance shows how miserably and peculiarly impolitic it has been in Ireland to tie down the body of the tenantry to short and unprofitable tenures. A finished and famished house will be taken for any term, however short; if the repair lies on the owner, the shorter the better. But no one will take one not only unfurnished but half built, but upon a term which, on calculation, will answer with profit all his charges. It is on this principle that the Romans established their Emphyteusis, or fee-farm. For though they extended {62} the ordinary term of their location only to nine years, yet they encouraged a more permanent letting to farm, with the condition of improvement, as well as of annual payment, on the part of the tenant, where the land had lain rough and neglected; and therefore invented this species of engrafted holding in the later times, when property came to be worse distributed by falling into a few hands. This denial of landed property to the gross of the people has this further evil effect in preventing the improvement of land; that it prevents any of the property acquired in trade to be re-gorged as it were upon the land. They must have observed very little who have not remarked the bold and liberal spirit of improvement which persons bred to trade have often exerted on their land-purchases; that they usually come to them with a more abundant command of ready money than most landed men possess; and that they have in general a much better idea, by long habits of calculative dealings, of the propriety of expending in order to acquire. Besides, such men often bring their spirit of commerce into their estates with them, and make manufactures take a root where the mere landed gentry had perhaps no capital, perhaps no inclination, and most frequently not sufficient knowledge to effect anything of the kind. By these means what beautiful and useful spots have there not been made about trading and manufacturing towns, and how has agriculture had reason to bless that happy alliance with commerce; and how miserable {63} must that nation be whose frame of polity has disjointed the landing and the trading interests!

. . . . . . .

The great prop of this whole system is not pretended to be its justice or its utility, but the supposed danger to the State, which gave rise to it originally, and which, they apprehend, would return if this system were overturned. Whilst, say they, the Papists of this kingdom were possessed of landed property, and of the influence consequent to such property, their allegiance to the Crown of Great Britain was ever insecure; the public peace was ever liable to be broken; and Protestants never could be a moment secure either of their properties or of their lives. Indulgence only made them arrogant, and power daring; confidence only excited and enabled them to exert their inherent treachery; and the times which they generally selected for their most wicked and desperate rebellions were those in which they enjoyed the greatest ease and the most perfect, tranquillity.

Such are the arguments that are used both publicly and privately in every discussion upon this point. They are generally full of passion and of error, and built upon facts which, in themselves, are most false. It cannot, I confess, be denied that those miserable performances which, go about under the names of Histories of Ireland, do. indeed represent those events after this manner; and they would persuade us, contrary to the known order of Nature, that indulgence {64} and moderation in governors is the natural incitement in subjects to rebel. But there is an interior History of Ireland - the genuine voice of its records and monuments - which speaks a very different language from these histories from Temple and from Clarendon. These restore nature to its just rights, and policy to its proper order; for they even now show to those who have been at the pains to examine them - and they may show one day to all the world - that these rebellions were not produced by toleration but by persecution; that they arose not from just and mild government, but from the most unparalleled oppression. These records will be far from giving the least countenance to a doctrine so repugnant to humanity and good sense as that the security of any establishment, civil or religious, can ever depend upon the misery of those who live under it, or that its danger can arise from their quiet and prosperity. God forbid that the history of this or any country should give such encouragement to the folly or vices of those who govern. If it can be shown that the great rebellions of Ireland have arisen from attempts to reduce the natives to the state to which they are now reduced, it will show that an attempt to continue them in that state will rather be disadvantageous to the public peace than any kind of security to it. These things have, in some measure, begun to appear already, and as far as regards the argument drawn from former rebellions, it will fall readily to the ground. But, for my part, I think the {65} real danger to every state is, to render its subjects justly discontented; nor is there in politics or science any more effectual secret for their security than to establish in their people a firm opinion that no change can be for their advantage. It is true that bigotry and fanaticism may, for a time, draw great multitudes of people from a knowledge of their true and substantial interest. But upon this I have to remark three things; first, that such a temper can never become universal, or last for a long time. The principle of religion is seldom lasting; the majority of men are in no persuasion bigots; they are not willing to sacrifice on every vain imagination that superstition or enthusiasm holds forth, or that even zeal and piety recommend, the certain possession of their temporal happiness. And if such a spirit has been at any time roused in a society, after it has had its paroxysm it commonly subsides and is quiet, and is even the weaker for the violence of its first exertion; security and ease are its mortal enemies. But secondly, if anything can tend to revive and keep it up, it is to keep alive the passions of men by ill usage. This is enough to irritate even those who have not a spark of bigotry in their constitution to the most desperate enterprises; it certainly will inflame, darken, and render more dangerous, the spirit of bigotry in those who are possessed by it. Lastly, by rooting out any sect, you are never secure against the effects of fanaticism; it may arise on the side of the most favoured opinions; and many are the instances {66} wherein the established religion of a state has grown ferocious and turned upon its keeper, and has often torn to pieces the civil establishment that had cherished it, and which it was designed to support; France - England - Holland.

But there may be danger of wishing a change, even where no religious motive can operate; and every enemy to such a state comes as a friend to the subject; and where other countries are under terror, they begin to hope.

This argument ad verecundiam has as much force as any such have. But I think it fares but very indifferently with those who make use of it; for they would get but little to be proved abettors of tyranny at the expense of putting me to an inconvenient acknowledgment. For if I were to confess that there are circumstances in which it would be better to establish such a religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

With regard to the Pope’s interest. This foreign chief of their religion cannot be more formidable to us than to other Protestant countries. To conquer that country for himself is a wild chimera; to encourage revolt in favour of foreign princes is an exploded idea in the politics of that Court. Perhaps it would be full as dangerous to have the people under the conduct of factious pastors of their own as under a foreign ecclesiastical court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . {67}

In the second year of the reign of Queen Elizabeth were enacted several limitations in the acquisition or the retaining of property, which had - so far as regarded any general principles- hitherto remained untouched under all changes.

These Bills met no opposition either in the Irish Parliament or in the English Council, except from private agents, who were little attended to; and they passed into laws with the highest and most general applauses, as all such things are, in the beginning, not as a system of persecution, but as masterpieces of the most subtle and refined politics. And to say the truth, these laws - at first view - have rather an appearance of a plan of vexatious litigation and crooked law chicanery, than of a direct and sanguinary attack upon the rights of private conscience, because they did not affect life, at least with regard to the laity; and making the Catholic opinions rather the subject of civil regulations than of criminal prosecutions, to those who are not lawyers and read these laws, they only appear to be a species of jargon. For the execution of criminal law has always a certain appearance of violence. Being exercised directly on the persons of the supposed offenders, and commonly executed in the face of the public, such executions are apt to excite sentiments of pity for the sufferers, and indignation against those who are employed in such cruelties - being seen as single acts of cruelty, rather than as ill general principles of government. But the operation of the laws {67} in question being such as common feeling brings home to every man’s bosom, they operate in a sort of comparative silence and obscurity; and though their cruelty is exceedingly great, it is never seen in a single exertion, and always escapes commiseration, being scarce known, except to those who view them in a general - which is always a cold and phlegmatic - flight. The first of these laws being made with so general a satisfaction, as the chief governors found that such things were extremely acceptable to the leading people in that country, they were willing enough to gratify them with the ruin of their fellow- citizens; they were not sorry to divert their attrition from other inquiries, and to keep them fixed to this, as if this had been the only real object of their national politics; and for many years there was no speech from the throne which did not, with great appearance of seriousness, recommend the passing of such laws; and scarce a session went over without in effect passing some of them, until they have by degrees grown to be the most considerable head in the Irish Statute Book. At the same time, giving a temporary and occasional mitigation to the severity of some of the harshest of those laws, they appeared in some sort the protectors of those whom they were in reality destroying by the establishment of general constitutions against them. At length, however, the policy of this expedient is worn out; the passions of men are cooled; those laws begin to disclose themselves, and to produce {69} effects very different from those which were promised in making them; for crooked counsels are ever unwise; and nothing can be more absurd and dangerous than to tamper with the natural foundations of society, in hopes of keeping it up by certain contrivances.

[End.]


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