The Works of the Right Honourable Edmund Burke, Vol. 06 (of 12)

I am sensible that these principles, in their abstract light, will not be very strenuously opposed. Reason is never inconvenient, but when it comes to be applied. Mere general truths interfere very little with the passions. They can, until they are roused by a troublesome application, rest in great tranquillity, side by side with tempers and proceedings the most directly opposite to them. Men want to be reminded, who do not want to be taught; because those original ideas of rectitude, to which the mind is compelled to assent when they are proposed, are not always as present to it as they ought to be. When people are gone, if not into a denial, at least into a sort of oblivion of those ideas, when they know them only as barren speculations, and not as practical motives for conduct, it will be proper to press, as well as to offer them to the understanding; and when one is attacked by prejudices which aim to intrude themselves into the place of law, what is left for us but to vouch and call to warranty those principles of original justice from whence alone our title to everything valuable in society is derived? Can it be thought to arise from a superfluous, vain parade of displaying general and uncontroverted maxims, that we should revert at this time to the first principles of law, when we have directly under our consideration a whole body of statutes, which, I say, are so many contradictions, which their advocates allow to be so many exceptions from those very principles? Take them in the most favorable light, every exception from the original and fixed rule of equality and justice ought surely to be very well authorized in the reason of their deviation, and very rare in their use. For, if they should grow to be frequent, in what would they differ from an abrogation of the rule itself? By becoming thus frequent, they might even go further, and, establishing themselves into a principle, convert the rule into the exception. It cannot be dissembled that this is not at all remote from the case before us, where the great body of the people are excluded from all valuable property,—where the greatest and most ordinary benefits of society are conferred as privileges, and not enjoyed on the footing of common rights.

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

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

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

I shall be very short, without being, I think, the less satisfactory, in my answer to these topics, because they never can be urged from a conviction of their validity, and are, indeed, only the usual and impotent struggles of those who are unwilling to abandon a practice which they are unable to defend. First, then, I observe, that, if the principle of their final and beneficial intention be admitted as a just ground for such proceedings, there never was, in the blamable sense of the word, nor ever can be, such a thing as a religious persecution in the world. Such an intention is pretended by all men,—who all not only insist that their religion has the sanction of Heaven, but is likewise, and for that reason, the best and most convenient to human society. All religious persecution, Mr. Bayle well observes, is grounded upon a miserable petitio principii. You are wrong, I am right; you must come over to me, or you must suffer. Let me add, that the great inlet by which a color for oppression has entered into the world is by one man's pretending to determine concerning the happiness of another, and by claiming a right to use what means he thinks proper in order to bring him to a sense of it. It is the ordinary and trite sophism of oppression. But there is not yet such a convenient ductility in the human understanding as to make us capable of being persuaded that men can possibly mean the ultimate good of the whole society by rendering miserable for a century together the greater part of it,—or that any one has such a reversionary benevolence as seriously to intend the remote good of a late posterity, who can give up the present enjoyment which every honest man must have in the happiness of his contemporaries. Everybody is satisfied that a conservation and secure enjoyment of our natural rights is the great and ultimate purpose of civil society, and that therefore all forms whatsoever of government are only good as they are subservient to that purpose to which they are entirely subordinate. Now to aim at the establishment of any form of government by sacrificing what is the substance of it, to take away or at least to suspend the rights of Nature in order to an approved system for the protection of them, and for the sake of that about which men must dispute forever to postpone those things about which they have no controversy at all, and this not in minute and subordinate, but large and principal objects, is a procedure as preposterous and absurd in argument as it is oppressive and cruel in its effect. For the Protestant religion, nor (I speak it with reverence, I am sure) the truth of our common Christianity, is not so clear as this proposition,—that all men, at least the majority of men in the society, ought to enjoy the common advantages of it. You fall, therefore, into a double error: first, you incur a certain mischief for an advantage which is comparatively problematical, even though you were sure of obtaining it; secondly, whatever the proposed advantage may be, were it of a certain nature, the attainment of it is by no means certain; and such deep gaming for stakes so valuable ought not to be admitted: the risk is of too much consequence to society. If no other country furnished examples of this risk, yet our laws and our country are enough fully to demonstrate the fact: Ireland, after almost a century of persecution, is at this hour full of penalties and full of Papists. This is a point which would lead us a great way; but it is only just touched here, having much to say upon it in its proper place. So that you have incurred a certain and an immediate inconvenience for a remote and for a doubly uncertain benefit.—Thus far as to the argument which would sanctify the injustice of these laws by the benefits which are proposed to arise from them, and as to that liberty which, by a new political chemistry, was to be extracted out of a system of oppression.

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

CHAPTER III.

PART II

The second head upon which I propose to consider those statutes with regard to their object, and which is the next in importance to the magnitude, and of almost equal concern in the inquiry into the justice of these laws, is its possession. It is proper to recollect that this religion, which is so persecuted in its members, is the old religion of the country, and the once established religion of the state,—the very same which had for centuries received the countenance and sanction of the laws, and from which it would at one time have been highly penal to have dissented. In proportion as mankind has become enlightened, the idea of religious persecution, under any circumstances, has been almost universally exploded by all good and thinking men. The only faint shadow of difficulty which remains is concerning the introduction of new opinions. Experience has shown, that, if it has been favorable to the cause of truth, it has not been always conducive to the peace of society. Though a new religious sect should even be totally free in itself from any tumultuous and disorderly zeal, which, however, is rarely the case, it has a tendency to create a resistance from the establishment in possession, productive of great disorders, and thus becomes, innocently indeed, but yet very certainly, the cause of the bitterest dissensions in the commonwealth. To a mind not thoroughly saturated with the tolerating maxims of the Gospel, a preventive persecution, on such principles, might come recommended by strong, and, apparently, no immoral motives of policy, whilst yet the contagion was recent, and had laid hold but on a few persons. The truth is, these politics are rotten and hollow at bottom, as all that are founded upon any however minute a degree of positive injustice must ever be. But they are specious, and sufficiently so to delude a man of sense and of integrity. But it is quite otherwise with the attempt to eradicate by violence a wide-spreading and established religious opinion. If the people are in an error, to inform them is not only fair, but charitable; to drive them is a strain of the most manifest injustice. If not the right, the presumption, at least, is ever on the side of possession. Are they mistaken? if it does not fully justify them, it is a great alleviation of guilt, which may be mingled with their misfortune, that the error is none of their forging,—that they received it on as good a footing as they can receive your laws and your legislative authority, because it was handed down to them from their ancestors. The opinion may be erroneous, but the principle is undoubtedly right; and you punish them for acting upon a principle which of all others is perhaps the most necessary for preserving society, an implicit admiration and adherence to the establishments of their forefathers.

If, indeed, the legislative authority was on all hands admitted to be the ground of religious persuasion, I should readily allow that dissent would be rebellion. In this case it would make no difference whether the opinion was sucked in with the milk or imbibed yesterday; because the same legislative authority which had settled could destroy it with all the power of a creator over his creature. But this doctrine is universally disowned, and for a very plain reason. Religion, to have any force on men's understandings, indeed to exist at all, must be supposed paramount to laws, and independent for its substance upon any human institution,—else it would be the absurdest thing in the world, an acknowledged cheat. Religion, therefore, is not believed because the laws have established it, but it is established because the leading part of the community have previously believed it to be true. As no water can rise higher than its spring, no establishment can have more authority than it derives from its principle; and the power of the government can with no appearance of reason go further coercively than to bind and hold down those who have once consented to their opinions. The consent is the origin of the whole. If they attempt to proceed further, they disown the foundation upon which their own establishment was built, and they claim a religious assent upon mere human authority, which has been just now shown to be absurd and preposterous, and which they in fact confess to be so.

However, we are warranted to go thus far. The people often actually do (and perhaps they cannot in general do better) take their religion, not on the coercive, which is impossible, but on the influencing authority of their governors, as wise and informed men. But if they once take a religion on the word of the state, they cannot in common sense do so a second time, unless they have some concurrent reason for it. The prejudice in favor of your wisdom is shook by your change. You confess that you have been wrong, and yet you would pretend to dictate by your sole authority; whereas you disengage the mind by embarrassing it. For why should I prefer your opinion of to-day to your persuasion of yesterday? If we must resort to prepossessions for the ground of opinion, it is in the nature of man rather to defer to the wisdom of times past, whose weakness is not before his eyes, than to the present, of whose imbecility he has daily experience. Veneration of antiquity is congenial to the human, mind. When, therefore, an establishment would persecute an opinion in possession, it sets against it all the powerful prejudices of human nature. It even sets its own authority, when it is of most weight, against itself in that very circumstance in which it must necessarily have the least; and it opposes the stable prejudice of time against a new opinion founded on mutability: a consideration that must render compulsion in such a case the more grievous, as there is no security, that, when the mind is settled in the new opinion, it may not be obliged to give place to one that is still newer, or even, to a return of the old. But when an ancient establishment begins early to persecute an innovation, it stands upon quite other grounds, and it has all the prejudices and presumptions on its side. It puts its own authority, not only of compulsion, but prepossession, the veneration of past age, as well as the activity of the present time, against the opinion only of a private man or set of men. If there be no reason, there is at least some consistency in its proceedings. Commanding to constancy, it does nothing but that of which it sets an example itself. But an opinion at once new and persecuting is a monster; because, in the very instant in which it takes a liberty of change, it does not leave to you even a liberty of perseverance.

Is, then, no improvement to be brought into society? Undoubtedly; but not by compulsion,—but by encouragement,—but by countenance, favor, privileges, which are powerful, and are lawful instruments. The coercive authority of the state is limited to what is necessary for its existence. To this belongs the whole order of criminal law. It considers as crimes (that is, the object of punishment) trespasses against those rules for which society was instituted. The law punishes delinquents, not because they are not good men, but because they are intolerably wicked. It does bear, and must, with the vices and the follies of men, until they actually strike at the root of order. This it does in things actually moral. In all matters of speculative improvement the case is stronger, even where the matter is properly of human cognizance. But to consider an averseness to improvement, the not arriving at perfection, as a crime, is against all tolerably correct jurisprudence; for, if the resistance to improvement should be great and any way general, they would in effect give up the necessary and substantial part in favor of the perfection and the finishing.

But, say the abettors of our penal laws, this old possessed superstition is such in its principles, that society, on its general principles, cannot subsist along with it. Could a man think such an objection possible, if he had not actually heard it made,—an objection contradicted, not by hypothetical reasonings, but the clear evidence of the most decisive facts? Society not only exists, but flourishes at this hour, with this superstition, in many countries, under every form of government,—in some established, in some tolerated, in others upon an equal footing. And was there no civil society at all in these kingdoms before the Reformation? To say it was not as well constituted as it ought to be is saying nothing at all to the purpose; for that assertion evidently regards improvement, not existence. It certainly did then exist; and it as certainly then was at least as much to the advantage of a very great part of society as what we have brought in the place of it: which is, indeed, a great blessing to those who have profited of the change; but to all the rest, as we have wrought, that is, by blending general persecution with partial reformation, it is the very reverse. We found the people heretics and idolaters; we have, by way of improving their condition, rendered them slaves and beggars: they remain in all the misfortune of their old errors, and all the superadded misery of their recent punishment. They were happy enough, in their opinion at least, before the change; what benefits society then had, they partook of them all. They are now excluded from those benefits; and, so far as civil society comprehends them, and as we have managed the matter, our persecutions are so far from being necessary to its existence, that our very reformation is made in a degree noxious. If this be improvement, truly I know not what can be called a depravation of society.

But as those who argue in this manner are perpetually shifting the question, having begun with objecting, in order to give a fair and public color to their scheme, to a toleration of those opinions as subversive of society in general, they will surely end by abandoning the broad part of the argument, and attempting to show that a toleration of them is inconsistent with the established government among us. Now, though this position be in reality as untenable as the other, it is not altogether such an absurdity on the face of it. All I shall here observe is, that those who lay it down little consider what a wound they are giving to that establishment for which they pretend so much zeal. However, as this is a consideration, not of general justice, but of particular and national policy, and as I have reserved a place expressly, where it will undergo a thorough discussion, I shall not here embarrass myself with it,—being resolved to preserve all the order in my power, in the examination of this important, melancholy subject.

However, before we pass from this point concerning possession, it will be a relaxation of the mind, not wholly foreign to our purpose, to take a short review of the extraordinary policy which has been held with regard to religion in that kingdom, from the time our ancestors took possession of it. The most able antiquaries are of opinion, and Archbishop Usher, whom I reckon amongst the first of them, has, I think, shown, that a religion not very remote from the present Protestant persuasion was that of the Irish before the union of that kingdom to the crown of England. If this was not directly the fact, this at least seems very probable, that Papal authority was much lower in Ireland than in other countries. This union was made under the authority of an arbitrary grant of Pope Adrian, in order that the Church of Ireland should be reduced to the same servitude with those that were nearer to his see. It is not very wonderful that an ambitious monarch should make use of any pretence in his way to so considerable an object. What is extraordinary is, that for a very long time, even quite down to the Reformation, and in their most solemn acts, the kings of England founded their title wholly on this grant: they called for obedience from the people of Ireland, not on principles of subjection, but as vassals and mesne lords between them and the Popes; and they omitted no measure of force or policy to establish that Papal authority, with all the distinguishing articles of religion connected with it, and to make it take deep root in the minds of the people. Not to crowd instances unnecessary, I shall select two, one of which is in print, the other on record,—the one a treaty, the other an act of Parliament. The first is the submission of the Irish chiefs to Richard the Second, mentioned by Sir John Davies. In this pact they bind themselves for the future to preserve peace and allegiance to the kings of England, under certain pecuniary penalties. But what is remarkable, these fines were all covenanted to be paid into the Apostolical Chamber, supposing the Pope as the superior power, whose peace was broken and whose majesty was violated in disobeying his governor. By this time, so far as regarded England, the kings had extremely abridged the Papal power in many material particulars: they had passed the Statute of Provisors, the Statute of Præmunire,—and, indeed, struck out of the Papal authority all things, at least, that seemed to infringe on their temporal independence. In Ireland, however, their proceeding was directly the reverse: there they thought it expedient to exalt it at least as high as ever: for, so late as the reign of Edward the Fourth, the following short, but very explicit, act of Parliament was passed:—

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 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 endeavoring 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 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 first and the ninth. The first is of this tenor:—"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 the Second. And their Majesties, as soon as affairs will permit them to summon a Parliament in this kingdom, will endeavor to procure the said Roman Catholics such farther security in that particular as may preserve them from any disturbance upon the account of their said 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 abovesaid, 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 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 honor 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 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 in 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 eleventh 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 endeavor 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 executed, which by the Constitution they had full 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, quæ 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 further, 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 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 Galmoy, 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 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 further 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 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 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 this 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 is not reserved for thirty years.

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 inclosures, 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 labor 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 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 furnished 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 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 regorged, 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 must that nation be, whose frame of polity has disjoined 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 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 real danger to every state is, to render its subjects justly discontented; nor is there in polities 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 favored opinions; and many are the instances 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 favor 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.

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 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 light. 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 attention 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 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.

A

LETTER

TO

WILLIAM SMITH, ESQ.,

ON THE SUBJECT OF

CATHOLIC EMANCIPATION.

JANUARY 29, 1795

LETTER.[23 - William Smith, Esq., to whom this Letter is addressed, was then a member of the Irish Parliament: he is now (1812) one of the Barons of the Court of Exchequer in Ireland.]

My Dear sir,—Your letter is, to myself, infinitely obliging: with regard to you, I can find no fault with it, except that of a tone of humility and disqualification, which neither your rank, nor the place you are in, nor the profession you belong to, nor your very extraordinary learning and talents, will in propriety demand or perhaps admit. These dispositions will be still less proper, if you should feel them in the extent your modesty leads you to express them. You have certainly given by far too strong a proof of self-diffidence by asking the opinion of a man circumstanced as I am, on the important subject of your letter. You are far more capable of forming just conceptions upon it than I can be. However, since you are pleased to command me to lay before you my thoughts, as materials upon which your better judgment may operate, I shall obey you, and submit them, with great deference, to your melioration or rejection.

But first permit me to put myself in the right. I owe you an answer to your former letter. It did not desire one, but it deserved it. If not for an answer, it called for an acknowledgment. It was a new favor; and, indeed, I should be worse than insensible, if I did not consider the honors you have heaped upon me with no sparing hand with becoming gratitude. But your letter arrived to me at a time when the closing of my long and last business in life, a business extremely complex, and full of difficulties and vexations of all sorts, occupied me in a manner which those who have not seen the interior as well as exterior of it cannot easily imagine. I confess that in the crisis of that rude conflict I neglected many things that well deserved my best attention,—none that deserved it better, or have caused me more regret in the neglect, than your letter. The instant that business was over, and the House had passed its judgment on the conduct of the managers, I lost no time to execute what for years I had resolved on: it was, to quit my public station, and to seek that tranquillity, in my very advanced age, to which, after a very tempestuous life, I thought myself entitled. But God has thought fit (and I unfeignedly acknowledge His justice) to dispose of things otherwise. So heavy a calamity has fallen upon me as to disable me for business and to disqualify me for repose. The existence I have I do not know that I can call life. Accordingly, I do not meddle with any one measure of government, though, for what reasons I know not, you seem to suppose me deeply in the secret of affairs. I only know, so far as your side of the water is concerned, that your present excellent Lord Lieutenant (the best man in every relation that I have ever been acquainted with) has perfectly pure intentions with regard to Ireland, and of course that he wishes cordially well to those who form the great mass of its inhabitants, and who, as they are well or ill managed, must form an important part of its strength or weakness. If with regard to that great object he has carried over any ready-made system, I assure you it is perfectly unknown to me: I am very much retired from the world, and live in much ignorance. This, I hope, will form my humble apology, if I should err in the notions I entertain of the question which is soon to become the subject of your deliberations. At the same time accept it as an apology for my neglects.

You need make no apology for your attachment to the religious description you belong to. It proves (as in you it is sincere) your attachment to the great points in which the leading divisions are agreed, when the lesser, in which they differ, are so dear to you. I shall never call any religious opinions, which appear important to serious and pious minds, things of no consideration. Nothing is so fatal to religion as indifference, which is, at least, half infidelity. As long as men hold charity and justice to be essential integral parts of religion, there can be little danger from a strong attachment to particular tenets in faith. This I am perfectly sure is your case; but I am not equally sure that either zeal for the tenets of faith, or the smallest degree of charity or justice, have much influenced the gentlemen who, under pretexts of zeal, have resisted the enfranchisement of their country. My dear son, who was a person of discernment, as well as clear and acute in his expressions, said, in a letter of his which I have seen, "that, in order to grace their cause, and to draw some respect to their persons, they pretend to be bigots." But here, I take it, we have not much to do with the theological tenets on the one side of the question or the other. The point itself is practically decided. That religion is owned by the state. Except in a settled maintenance, it is protected. A great deal of the rubbish, which, as a nuisance, long obstructed the way, is removed. One impediment remained longer, as a matter to justify the proscription of the body of our country; after the rest had been abandoned as untenable ground. But the business of the Pope (that mixed person of polities and religion) has long ceased to be a bugbear: for some time past he has ceased to be even a colorable pretext. This was well known, when the Catholics of these kingdoms, for our amusement, were obliged on oath to disclaim him in his political capacity,—which implied an allowance for them to recognize him in some sort of ecclesiastical superiority. It was a compromise of the old dispute.