The Works of the Right Honourable Edmund Burke Volume VI Part 19

All persons of that persuasion are disabled from taking or purchasing, directly or by a trust, any lands, any mortgage upon land, any rents or profits from land, any lease, interest, or term of any land, any annuity for life or lives or years, or any estate whatsoever, chargeable upon, or which may in any manner affect, any lands.

One exception, and one only, is admitted by the statutes to the universality of this exclusion, viz., a lease for a term not exceeding thirty-one years. But even this privilege is charged with a prior qualification. This remnant of a right is doubly curtailed: 1st, that on such a short lease a rent not less than two thirds of the full improved yearly value, at the time of the making it, shall be reserved during the whole continuance of the term; and, 2ndly, it does not extend to the whole kingdom. This lease must also be in possession, and not in reversion. If any lease is made, exceeding either in duration or value, and in the smallest degree, the above limits, the whole interest is forfeited, and vested _ipso facto_ in the first Protestant discoverer or informer. This discoverer, thus invested with the property, is enabled to sue for it as his own right. The courts of law are not alone open to him; he may (and this is the usual method) enter into either of the courts of equity, and call upon the parties, and those whom he suspects to be their trustees, upon oath, and under the penalties of perjury, to discover against themselves the exact nature and value of their estates in every particular, in order to induce their forfeiture on the discovery. In such suits the informer is not liable to those delays which the ordinary procedure of those courts throws into the way of the justest claimant; nor has the Papist the indulgence which he [it?]

allows to the most fraudulent defendant, that of plea and demurrer; but the defendant is obliged to answer the whole directly upon oath. The rule of _favores ampliandi,_ &c., is reversed by this act, lest any favor should be shown, or the force and operation of the law in any part of its progress be enervated. All issues to be tried on this act are to be tried by none but known Protestants.

It is here necessary to state as a part of this law what has been for some time generally understood as a certain consequence of it. The act had expressly provided that a Papist could possess no sort of estate which might affect land (except as before excepted). On this a difficulty did, not unnaturally, arise. It is generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to be delivered unto the creditor until the obligation is satisfied, under a writ called _Elegit_, and this writ has been ever since the ordinary a.s.surance of the land, and the great foundation of general credit in the nation. Although the species of holding under this writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security, because it may create an estate, however precarious, in land, their whole debt or charge is forfeited, and becomes the property of the Protestant informer. Thus you observe, first, that by the express words of the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore, most people who lend money would, I believe, consider as none at all.

Under this head of the acquisition of property, the law meets them in every road of industry, and in its direct and consequential provisions throws almost all sorts of obstacles in their way. For they are not only excluded from all offices in Church and State, which, though a just and necessary provision, is yet no small restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches.

This point is carried to so scrupulous a severity, that chamber practice, and even private conveyancing, the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this: for every barrister, six clerk, attorney, or solicitor, is obliged to take a solemn oath not to employ persons of that persuasion,--no, not as hackney clerks, at the miserable salary of seven s.h.i.+llings 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 const.i.tution of our universities need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in them who do not previously take all the tests, oaths, and declarations.

Lest they should be enabled to supply this defect by private academies and schools of their own, the law has armed itself with all its terrors against such a practice. Popish schoolmasters of every species are proscribed by those acts, and it is made felony to teach even in a private family. So that Papists are entirely excluded from an education in any of our authorized establishments for learning at home. In order to shut up every avenue to instruction, the act of King William in Ireland has added to this restraint by precluding them from all foreign education.

This act is worthy of attention on account of the singularity of some of its provisions. Being sent for education to any Popish school or college abroad, upon conviction, incurs (if the party sent has any estate of inheritance) a kind of unalterable and perpetual outlawry. The tender and incapable age of such a person, his natural subjection to the will of others, his necessary, unavoidable ignorance of the laws, stands for nothing in his favor. He is disabled to sue in law or equity; to be guardian, executor, or administrator; he is rendered incapable of any legacy or deed of gift; he forfeits all his goods and chattels forever; and he forfeits for his life all his lands, hereditaments, offices, and estate of freehold, and all trusts, powers, or interests therein. All persons concerned in sending them or maintaining them abroad, by the least a.s.sistance of money or otherwise, are involved in the same disabilities, and subjected to the same penalties.

The mode of conviction is as extraordinary as the penal sanctions of this act. A justice of peace, upon information that any child is sent away, may require to be brought before him all persons charged or even suspected of sending or a.s.sisting, and examine them and other persons on oath concerning the fact. If on this examination he finds it _probable_ that the party was sent contrary to this act, he is then, to bind over the parties and witnesses in any sum he thinks fit, but not less than two hundred pounds, to appear and take their trial at the next quarter sessions. Here the justices are to reexamine evidence, until they arrive, as before, to what shall appear to them a probability. For the rest they resort to the accused: if they can prove that any person, or any money, or any bill of exchange, has been sent abroad by the party accused, they throw the proof upon him to show for what innocent purposes it was sent; and on failure of such proof, he is subjected to all the above-mentioned penalties. Half the forfeiture is given to the crown; the other half goes to the informer.

It ought here to be remarked, that this mode of conviction not only concludes the party has failed in his expurgatory proof, but it is sufficient also to subject to the penalties and incapacities of the law the infant upon whose account the person has been so convicted. It must be confessed that the law has not left him without some species of remedy in this case apparently of much hards.h.i.+p, where one man is convicted upon evidence given against another, if he has the good fortune to live; for, within a twelvemonth after his return, or his age of twenty-one, he has a, right to call for a new trial, in which he also is to undertake the negative proof, and to show by sufficient evidence that he has not been sent abroad against the intention of the act. If he succeeds in this difficult exculpation, and demonstrates his innocence to the satisfaction of the court, he forfeits all his goods and chattels, and all the profits of his lands incurred and received before such acquittal; but he is freed from all other forfeitures, and from all subsequent incapacities. There is also another method allowed by the law in favor of persons under such unfortunate circ.u.mstances, as in the former case for their innocence, in this upon account of their expiation: if within six months after their return, with the punctilious observation of many ceremonies, they conform to the Established Church, and take all the oaths and subscriptions, the legislature, in consideration of the incapable age in which they were sent abroad, of the merit of their early conformity, and to encourage conversions, only confiscates, as in the former case, the whole personal estate, and the profits of the real; in all other respects, restoring and rehabilitating the party.

So far as to property and education. There remain some other heads upon which the acts have changed the course of the Common Law; and first, with regard to the right of self-defence, which consists in the use of arms. This, though one of the rights by the law of Nature, yet is so capable of abuses that it may not be unwise to make some regulations concerning them; and many wise nations have thought proper to set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on occasion of some imminent danger to the public from foreign invasion or domestic commotions.

But provisions in time of trouble proper, and perhaps necessary, may become in time of profound peace a scheme of tyranny. The method which the statute law of Ireland has taken upon this delicate article is, to get rid of all difficulties at once by an universal prohibition to all persons, at all times, and under all circ.u.mstances, who are not Protestants, of using or keeping any kind of weapons whatsoever. In order to enforce this regulation, the whole spirit of the Common Law is changed, very severe penalties are enjoined, the largest powers are vested in the lowest magistrates. Any two justices of peace, or magistrates of a town, with or without information, at their pleasure, by themselves or their warrant, are empowered to enter and search the house of any Papist, or even of any other person, whom they suspect to keep such arms in trust for them. The only limitation to the extent of this power is, that the search is to be made between the rising and setting of the sun: but even this qualification extends no further than to the execution of the act in the open country; for in all cities and their suburbs, in towns corporate and market-towns, they may at their discretion, and without information, break open houses and inst.i.tute such search at any hour of the day or night. This, I say, they may do at their discretion; and it seems a pretty ample power in the hands of such magistrates. However, the matter does by no means totally rest on their discretion. Besides the discretionary and occasional search, the statute has prescribed one that is general and periodical. It is to be made annually, by the warrant of the justices at their midsummer quarter sessions, by the high and petty constables, or any others whom they may authorize, and by all corporate magistrates, in all houses of Papists, and every other where they suspect arms for the use of such persons to be concealed, with the same powers, in all respects, which attend the occasional search. The whole of this regulation, concerning both the general and particular search, seems to have been made by a legislature which was not at all extravagantly jealous of personal liberty. Not trusting, however, to the activity of the magistrate acting officially, the law has invited all voluntary informers by considerable rewards, and even pressed involuntary informers into this service by the dread of heavy penalties. With regard to the latter method, two justices of peace, or the magistrate of any corporation, are empowered to summon before them any persons whatsoever, to tender them an oath by which they oblige them to discover all persons who have any arms concealed contrary to law. Their refusal or declining to appear, or, appearing, their refusal to inform, subjects them to the severest penalties. If peers or peeresses are summoned (for they may be summoned by the bailiff of a corporation of six cottages) to perform this honorable service, and refuse to inform, the first offence is three hundred pounds penalty; the second is _praemunire_,--that is to say, imprisonment for life, and forfeiture of all their goods. Persons of an inferior order are, for the first offence, fined thirty pounds; for the second, they, too, are subjected to _praemunire_. So far as to involuntary;--now as to voluntary informers: the law ent.i.tles them to half the penalty incurred by carrying or keeping arms; for, on conviction of this offence, the penalty upon persons, of whatever substance, is the sum of fifty pounds and a year's imprisonment, which cannot be remitted even by the crown.

The only exception to this law is a license from the Lord Lieutenant and Council to carry arms, which, by its nature, is extremely limited, and I do not suppose that there are six persons now in the kingdom who have been fortunate enough to obtain it.

There remains, after this system concerning property and defence, to say something concerning the exercise of religion, winch is carried on in all persuasions, but especially in the Romish, by persons appointed for that purpose. The law of King William and Queen Anne ordered all Popish parsons exercising ecclesiastical jurisdiction, all orders of monks and friars, and all priests, not then actually in parishes, and to be registered, to be banished the kingdom; and if they should return from exile, to be hanged, drawn, and quartered. Twenty pounds reward is given for apprehending them. Penalty on harboring and concealing.

As all the priests then in being and registered are long since dead, and as these laws are made perpetual, every Popish priest is liable to the law.

The reader has now before him a tolerably complete view of the Popery laws relative to property by descent or acquisition, to education, to defence, and to the free exercise of religion, which may be necessary to enable him to form some judgment of the spirit of the whole system, and of the subsequent reflections that are to be made upon it.

CHAPTER III.

PART I.

The system which we have just reviewed, and the manner in which religious influence on the public is made to operate upon the laws concerning property in Ireland, is in its nature very singular, and differs, I apprehend, essentially, and perhaps to its disadvantage, from any scheme of religious persecution now existing in any other country in Europe, or which has prevailed in any time or nation with which history has made us acquainted. I believe it will not be difficult to show that it is unjust, impolitic, and inefficacious; that it has the most unhappy influence on the prosperity, the morals, and the safety of that country; that this influence is not accidental, but has flowed as the necessary and direct consequence of the laws themselves, first on account of the object which they affect, and next by the quality of the greatest part of the instruments they employ. Upon all these points, first upon the general, and then on the particular, this question will be considered with as much order as can be followed in a matter of itself as involved and intricate as it is important.

The first and most capital consideration with regard to this, as to every object, is the extent of it. And here it is necessary to premise, this system of penalty and incapacity has for its object no small sect or obscure party, but a very numerous body of men,--a body which comprehends at least two thirds of that whole nation: it amounts to 2,800,000 souls, a number sufficient for the materials const.i.tuent of a great people. Now it is well worthy of a serious and dispa.s.sionate examination, whether such a system, respecting such an object, be in reality agreeable to any sound principles of legislation or any authorized definition of law; for if our reasons or practices differ from the general informed sense of mankind, it is very moderate to say that they are at least suspicious.

This consideration of the magnitude of the object ought to attend us through the whole inquiry: if it does not always affect the reason, it is always decisive on the importance of the question. It not only makes in itself a more leading point, but complicates itself with every other part of the matter, giving every error, minute in itself, a character and significance from its application. It is therefore not to be wondered at, if we perpetually recur to it in the course of this essay.

In the making of a new law it is undoubtedly the duty of the legislator to see that no injustice be done even to an individual: for there is then nothing to be unsettled, and the matter is under his hands to mould it as he pleases; and if he finds it untractable in the working, he may abandon it without incurring any new inconvenience. But in the question concerning the repeal of an old one, the work is of more difficulty; because laws, like houses, lean on one another, and the operation is delicate, and should be necessary: the objection, in such a case, ought not to arise from the natural infirmity of human inst.i.tutions, but from substantial faults which contradict the nature and end of law itself,--faults not arising from the imperfection, but from the misapplication and abuse of our reason. As no legislators can regard the _minima_ of equity, a law may in some instances be a just subject of censure without being at all an object of repeal. But if its transgressions against common right and, the ends of just government should be considerable in their nature and spreading in their effects, as this objection goes to the root and principle of the law, it renders it void in its obligatory quality on the mind, and therefore determines it as the proper object of abrogation and repeal, so far as regards its civil existence. The objection here is, as we observed, by no means on account of the imperfection of the law; it is on account of its erroneous principle: for if this be fundamentally wrong, the more perfect the law is made, the worse it becomes. It cannot be said to have the properties of genuine law, even in its imperfections and defects.

The true weakness and opprobrium of our best general const.i.tutions 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 mult.i.tudes 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 hards.h.i.+p, which might be borne, but spreads and grows up into the unfortunate importance of a national calamity.

Now as a law directed against the ma.s.s of the nation has not the nature of a reasonable inst.i.tution, so neither has it the authority: for in all forms of government the people is the true legislator; and whether the immediate and instrumental cause of the law be a single person or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely essential to its validity. To the solid establishment of every law two things are essentially requisite: first, a proper and sufficient human power to declare and modify the matter of the law; and next, such a fit and equitable const.i.tution as they have a right to declare and render binding. With regard to the first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason which the necessity of government has made superior to their own.

But though the means, and indeed the nature, of a public advantage may not always be evident to the understanding of the subject, no one is so gross and stupid as not to distinguish between a benefit and an injury.

No one can imagine, then, an exclusion of a great body of men, not from favors, privileges, and trusts, but from the common advantages of society, can ever be a thing intended for their good, or can ever be ratified by any implied consent of theirs. If, therefore, at least an implied human consent is necessary to the existence of a law, such a const.i.tution cannot in propriety be a law at all.

But if we could suppose that such a ratification was made, not virtually, but actually, by the people, not representatively, but even collectively, still it would be null and void. They have no right to make a law prejudicial to the whole community, even though the delinquents in making such an act should be themselves the chief sufferers by it; because it would be-made against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter,--I mean the will of Him who gave us our nature, and in giving impressed an invariable law upon it. It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position, that any body of men have a right to make what laws they please,--or that laws can derive any authority from their inst.i.tution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the const.i.tution can be pleaded in favor of such a practice. They may, indeed, impeach the frame of that const.i.tution, but can never touch this immovable principle. This seems to be, indeed, the doctrine which Hobbes broached in the last century, and which was then so frequently and so ably refuted. Cicero exclaims with the utmost indignation and contempt against such a notion:[22] he considers it not only as unworthy of a philosopher, but of an illiterate peasant; that of all things this was the most truly absurd, to fancy that the rule of justice was to be taken from the const.i.tutions of commonwealths, or that laws derived their authority from the statutes of the people, the edicts of princes, or the decrees of judges. If it be admitted that it is not the black-letter and the king's arms that makes the law, we are to look for it elsewhere.

In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same manner with, and derived directly from, our rational nature: for any other utility may be the utility of a robber, but cannot be that of a citizen,--the interest of the domestic enemy, and not that of a member of the commonwealth. This present equality can never be the foundation of statutes which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice. Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action; and so Tully considers it in his Offices as the only utility agreeable to that nature: "_Unum debet esse omnibus propositum, ut eadem sit utilitas uniuscujusque et universorum; quam si ad se quisque rapiat, dissolvetur omnis humana consortio_."

If any proposition can be clear in itself, it is this: that a law which shuts out from all secure and valuable property the bulk of the people cannot be made for the utility of the party so excluded. This, therefore, is not the utility which Tully mentions. But if it were true (as it is not) that the real interest of any part of the community could be separated from the happiness of the rest, still it would afford no just foundation for a statute providing exclusively for that interest at the expense of the other; because it would be repugnant to the essence of law, which requires that it be made as much as possible for the benefit of the whole. If this principle be denied or evaded, what ground have we left to reason on? We must at once make a total change in all our ideas, and look for a new definition of law. Where to find it I confess myself at a loss. If we resort to the fountains of jurisprudence, they will not supply us with any that is for our purpose.

"_Jus_" (says Paulus) "_pluribus modis dicitur: uno modo, c.u.m id, quod semper aequum et bonum est, jus dicitur, ut est jus naturale"_;--this sense of the word will not be thought, I imagine, very applicable to our penal laws;--"_altero modo, quod omnibus aut pluribus in unaquaque civitate utile est, ut est jus civile_." Perhaps this latter will be as insufficient, and would rather seem a censure and condemnation of the Popery Acts than a definition that includes them; and there is no other to be found in the whole Digest; neither are there any modern writers whose ideas of law are at all narrower.

It would be far more easy to heap up authorities on this article than to excuse the prolixity and tediousness of producing any at all in proof of a point which, though too often practically denied, is in its theory almost self-evident. For Suarez, handling this very question, _Utrum de ratione et substantia legis esse ut propter commune bonum feratur_, does not hesitate a moment, finding no ground in reason or authority to render the affirmative in the least degree disputable: "_In quaestione ergo proposita"_ (says he) "_nulla est inter auth.o.r.es controversia; sed omnium commune est axioma de substantia et ratione legis esse, ut pro communi bono feratur; ita ut propter illud praecipue tradatur_"; having observed in another place, "_Contra omnem rect.i.tudinem est bonum commune ad privatum ordinare, seu totum ad partem propter ipsum referre_."

Partiality and law are contradictory terms. Neither the merits nor the ill deserts, neither the wealth and importance nor the indigence and obscurity, of the one part or of the other, can make any alteration in this fundamental truth. On any other scheme, I defy any man living to settle a correct standard which may discriminate between equitable rule and the most direct tyranny. For if we can once prevail upon ourselves to depart from the strictness and integrity of this principle in favor even of a considerable party, the argument will hold for one that is less so; and thus we shall go on, narrowing the bottom of public right, until step by step we arrive, though after no very long or very forced deduction, at what one of our poets calls the _enormous faith_,--the faith of the many, created for the advantage of a single person. I cannot see a glimmering of distinction to evade it; nor is it possible to allege any reason for the proscription of so large a part of the kingdom, which would not hold equally to support, under parallel circ.u.mstances, 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 pa.s.sions. 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 rect.i.tude, to which the mind is compelled to a.s.sent when they are proposed, are not always as present to it as they ought to be. When people are gone, if not into a denial, at least into a sort of oblivion of those ideas, when they know them only as barren speculations, and not as practical motives for conduct, it will be proper to press, as well as to offer them to the understanding; and when one is attacked by prejudices which aim to intrude themselves into the place of law, what is left for us but to vouch and call to warranty those principles of original justice from whence alone our t.i.tle to everything valuable in society is derived? Can it be thought to arise from a superfluous, vain parade of displaying general and uncontroverted maxims, that we should revert at this time to the first principles of law, when we have directly under our consideration a whole body of statutes, which, I say, are so many contradictions, which their advocates allow to be so many exceptions from those very principles? Take them in the most favorable light, every exception from the original and fixed rule of equality and justice ought surely to be very well authorized in the reason of their deviation, and very rare in their use. For, if they should grow to be frequent, in what would they differ from an abrogation of the rule itself? By becoming thus frequent, they might even go further, and, establis.h.i.+ng 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 t.i.tle or preamble of the law of the same import with the body and enacting part; but they generally place some other color uppermost, which differs from that which is afterwards to appear, or at least one that is several shades fainter.

Thus, the penal laws in question are not called laws to oblige men baptized and educated in Popery to renounce their religion or their property, but are called laws to prevent the growth of Popery; as if their purpose was only to prevent conversions to that sect, and not to persecute a million of people already engaged in it. But of all the instances of this sort of legislative artifice, and of the principles that produced it, I never met with any which made a stronger impression on me than that of Louis the Fourteenth, in the revocation of the Edict of Nantes. That monarch had, when he made that revocation, as few measures to keep with public opinion as any man. In the exercise of the most unresisted authority at home, in a career of uninterrupted victory abroad, and in a course of flattery equal to the circ.u.mstances of his greatness in both these particulars, he might be supposed to have as little need as disposition to render any sort of account to the world of his procedure towards his subjects. But the persecution of so vast a body of men as the Huguenots was too strong a measure even for the law of pride and power. It was too glaring a contradiction even to those principles upon which persecution itself is supported. Shocked at the naked attempt, he had recourse, for a palliation of his conduct, to an unkingly denial of the fact which made against him. In the preamble, therefore, to his Act of Revocation, he sets forth that the Edict of Nantes was no longer necessary, as the object of it (the Protestants of his kingdom) were then reduced to a very small number. The refugees in Holland cried out against this misrepresentation. They a.s.serted, I believe with truth, that this revocation had driven two hundred thousand of them out of their country, and that they could readily demonstrate there still remained six hundred thousand Protestants in France. If this were the fact, (as it was undoubtedly,) no argument of policy could have been strong enough to excuse a measure by which eight hundred thousand men were despoiled, at one stroke, of so many of their rights and privileges. Louis the Fourteenth confessed, by this sort of apology, that, if the number had been large, the revocation had been unjust. But, after all, is it not most evident that this act of injustice, which let loose on that monarch such a torrent of invective and reproach, and which threw so dark a cloud over all the splendor of a most ill.u.s.trious reign, falls far short of the case in Ireland? The privileges which the Protestants of that kingdom enjoyed antecedent to this revocation were far greater than the Roman Catholics of Ireland ever aspired to under a contrary establishment. The number of their sufferers, if considered absolutely, is not half of ours; if considered relatively to the body of each community, it is not perhaps a twentieth part. And then the penalties and incapacities which grew from that revocation are not so grievous in their nature, nor so certain in their execution, nor so ruinous by a great deal to the civil prosperity of the state, as those which we have established for a perpetual law in our unhappy country. It cannot be thought to arise from affectation, that I call it so. What other name can be given to a country which contains so many hundred thousands of human creatures reduced to a state of the most abject servitude?

In putting this parallel, I take it for granted that we can stand for this short time very clear of our party distinctions. If it were enough, by the use of an odious and unpopular word, to determine the question, it would be no longer a subject of rational disquisition; since that very prejudice which gives these odious names, and which is the party charged for doing so, and for the consequences of it, would then become the judge also. But I flatter myself that not a few will be found who do not think that the names of Protestant and Papist can make any change in the nature of essential justice. Such men will not allow that to be proper treatment to the one of these denominations which would be cruelty to the other, and which converts its very crime into the instrument of its defence: they will hardly persuade themselves that what was bad policy in France can be good in Ireland, or that what was intolerable injustice in an arbitrary monarch becomes, only by being more extended and more violent, an equitable procedure in a country professing to be governed by law. It is, however, impossible not to observe with some concern, that there are many also of a different disposition,--a number of persons whose minds are so formed that they find the communion of religion to be a close and an endearing tie, and their country to be no bond at all,--to whom common altars are a better relation than common habitations and a common civil interest,--whose hearts are touched with the distresses of foreigners, and are abundantly awake to all the tenderness of human feeling on such an occasion, even at the moment that they are inflicting the very same distresses, or worse, on their fellow-citizens, without the least sting of compa.s.sion or remorse. To commiserate the distresses of all men suffering innocently, perhaps meritoriously, is generous, and very agreeable to the better part of our nature,--a disposition that ought by all means to be cherished. But to transfer humanity from its natural basis, our legitimate and home-bred connections,--to lose all feeling for those who have grown up by our sides, in our eyes, the benefit of whose cares and labors we have partaken from our birth, and meretriciously to hunt abroad after foreign affections, is such a disarrangement of the whole system of our duties, that I do not know whether benevolence so displaced is not almost the same thing as destroyed, or what effect bigotry could have produced that is more fatal to society. This no one could help observing, who has seen our doors kindly and bountifully thrown open to foreign sufferers for conscience, whilst through the same ports were issuing fugitives of our own, driven from their country for a cause which to an indifferent person would seem to be exactly similar, whilst we stood by, without any sense of the impropriety of this extraordinary scene, accusing and practising injustice. For my part, there is no circ.u.mstance, in all the contradictions of our most mysterious nature, that appears to be more humiliating than the use we are disposed to make of those sad examples which seem purposely marked for our correction and improvement. Every instance of fury and bigotry in other men, one should think, would naturally fill us with an horror of that disposition. The effect, however, is directly contrary. We are inspired, it is true, with a very sufficient hatred for the party, but with no detestation at all of the proceeding. Nay, we are apt to urge our dislike of such measures as a reason for imitating them,--and, by an almost incredible absurdity, because some powers have destroyed their country by their persecuting spirit, to argue, that we ought to retaliate on them by destroying our own. Such are the effects, and such, I fear, has been the intention, of those numberless books which are daily printed and industriously spread, of the persecutions in other countries and other religious persuasions.--These observations, which are a digression, but hardly, I think, can be considered as a departure from the subject, have detained us some time: we will now come more directly to our purpose.

It has been shown, I hope with sufficient evidence, that a const.i.tution against the interest of the many is rather of the nature of a grievance than of a law; that of all grievances it is the most weighty and important; that it is made without due authority, against all the acknowledged principles of jurisprudence, against the opinions of all the great lights in that science; and that such is the tacit sense even of those who act in the most contrary manner. These points are, indeed, so evident, that I apprehend the abettors of the penal system will ground their defence on an admission, and not on a denial of them. They will lay it down as a principle, that the Protestant religion is a thing beneficial for the whole community, as well in its civil interests as in those of a superior order. From thence they will argue, that, the end being essentially beneficial, the means become instrumentally so; that these penalties and incapacities are not final causes of the law, but only a discipline to bring over a deluded people to their real interest, and therefore, though they may be harsh in their operation, they will be pleasant in their effects; and be they what they will, they cannot be considered as a very extraordinary hards.h.i.+p, as it is in the power of the sufferer to free himself when he pleases, and that only by converting to a better religion, which it is his duty to embrace, even though it were attended with all those penalties from whence in reality it delivers him: if he suffers, it is his own fault; _volenti non fit injuria_.

I shall be very short, without being, I think, the less satisfactory, in my answer to these topics, because they never can be urged from a conviction of their validity, and are, indeed, only the usual and impotent struggles of those who are unwilling to abandon a practice which they are unable to defend. First, then, I observe, that, if the principle of their final and beneficial intention be admitted as a just ground for such proceedings, there never was, in the blamable sense of the word, nor ever can be, such a thing as a religious persecution in the world. Such an intention is pretended by all men,--who all not only insist that their religion has the sanction of Heaven, but is likewise, and for that reason, the best and most convenient to human society. All religious persecution, Mr. Bayle well observes, is grounded upon a miserable _pet.i.tio principii_. You are wrong, I am right; you must come over to me, or you must suffer. Let me add, that the great inlet by which a color for oppression has entered into the world is by one man's pretending to determine concerning the happiness of another, and by claiming a right to use what means he thinks proper in order to bring him to a sense of it. It is the ordinary and trite sophism of oppression. But there is not yet such a convenient ductility in the human understanding as to make us capable of being persuaded that men can possibly mean the ultimate good of the whole society by rendering miserable for a century together the greater part of it,--or that any one has such a reversionary benevolence as seriously to intend the remote good of a late posterity, who can give up the present enjoyment which every honest man must have in the happiness of his contemporaries.

Everybody is satisfied that a conservation and secure enjoyment of our natural rights is the great and ultimate purpose of civil society, and that therefore all forms whatsoever of government are only good as they are subservient to that purpose to which they are entirely subordinate.

Now to aim at the establishment of any form of government by sacrificing what is the substance of it, to take away or at least to suspend the rights of Nature in order to an approved system for the protection of them, and for the sake of that about which men must dispute forever to postpone those things about which they have no controversy at all, and this not in minute and subordinate, but large and princ.i.p.al objects, is a procedure as preposterous and absurd in argument as it is oppressive and cruel in its effect. For the Protestant religion, nor (I speak it with reverence, I am sure) the truth of our common Christianity, is not so clear as this proposition,--that all men, at least the majority of men in the society, ought to enjoy the common advantages of it. You fall, therefore, into a double error: first, you incur a certain mischief for an advantage which is comparatively problematical, even though you were sure of obtaining it; secondly, whatever the proposed advantage may be, were it of a certain nature, the attainment of it is by no means certain; and such deep gaming for stakes so valuable ought not to be admitted: the risk is of too much consequence to society. If no other country furnished examples of this risk, yet our laws and our country are enough fully to demonstrate the fact: Ireland, after almost a century of persecution, is at this hour full of penalties and full of Papists. This is a point which would lead us a great way; but it is only just touched here, having much to say upon it in its proper place. So that you have incurred a certain and an immediate inconvenience for a remote and for a doubly uncertain benefit.--Thus far as to the argument which would sanctify the injustice of these laws by the benefits which are proposed to arise from them, and as to that liberty which, by a new political chemistry, was to be extracted out of a system of oppression.

Now as to the other point, that the objects of these laws suffer voluntarily: this seems to me to be an insult rather than an argument.

For, besides that it totally annihilates every characteristic and therefore every faulty idea of persecution, just as the former does, it supposes, what is false in fact, that it is in a man's moral power to change his religion whenever his convenience requires it. If he be beforehand satisfied that your opinion is better than his, he will voluntarily come over to you, and without compulsion, and then your law would be unnecessary; but if he is not so convinced, he must know that it is his duty in this point to sacrifice his interest here to his opinion of his eternal happiness, else he could have in reality no religion at all. In the former case, therefore, as your law would be unnecessary, in the latter it would be persecuting: that is, it would put your penalty and his ideas of duty in the opposite scales; which is, or I know not what is, the precise idea of persecution. If, then, you require a renunciation of his conscience, as a preliminary to his admission to the rights of society, you annex, morally speaking, an impossible condition to it. In this case, in the language of reason and jurisprudence, the condition would be void, and the gift absolute; as the practice runs, it is to establish the condition, and to withhold the benefit. The suffering is, then, not voluntary. And I never heard any other argument, drawn from the nature of laws and the good of human society, urged in favor of those proscriptive statutes, except those which have just been mentioned.

FOOTNOTES:

[22] Cicero _de Legibus_, Lib. L 14,15 et 16.--"O rem dignam, in qua non modo docti, verum etiam agrestes erubescant! Jam vero illud stultissimum existimare omnia justa esse, quae scita sint in populorum inst.i.tutis aut legibus," etc. "Quod si populorum jussis, si principum decretis, si sententiis judic.u.m jura const.i.tuerentur, jus esset latrocinari, jus adulterare, jus testamenta falsa supponere, si haec suffragiis aut scitis mult.i.tudinis probarentur."

CHAPTER III.

PART II.