No More Learning

Ofthe man- 38. And in order to a gradual malnumisUmission of
negroes. sion of slaves, as they shall seem fitted to
fill the offices of freemen, be it enacted, that every
negro slave, being thirty years of age and upwards,
and who has had three children born to him il lawful matrimony, and who hath received a certificate
from the minister of his district, or any other Christian teacher, of his regularity ill the duties of religion, and of his orderly and good behavior, may purchase, at rates to be fixed by two justices of peace, the freedom of himself, or his wife or children, or
of any of them separately, valuing the wife and clildren, if purchased into liberty by the father of tlle
family, at half only of their marketable values: provided that the said father shall bind himself in a
penalty of for the good behavior of his children.
Of the same. 39. And be it enacted, that it shall be
? ? ? ? SKETCH OF A NEGRO CODE. 289
lawful for the protector of negroes to purchase the
freedom of any negro who shall appear to him to
excel in any mechanical art, or other knowledge or
practice deemed liberal, and the value shall be settled by a jury.
40. And be it enacted, that the protector Free
negroes
of negroes shall be and is authorized and how tobe
punished
required to act as a magistrate for the coercion of all idle, disobedient, or disorderly free negroes, and he shall by office prosecute them for the offences of idleness, drunkenness, quarrelling, gailing, or vagrancy, in the supreme court, or cause
them to be prosecuted before one justice of peace,
as the case may require.
41. And' be it enacted, that, if any free Ofthe same.
negro hath been twice convicted for any of the said
misdemeanors, and is judged by the said protector'
of negroes, calling to his assistance two justices of
the peace, to be incorrigibly idle, dissolute, and vicious, it shall be lawful, by the order of the said
protector and two justices of peace, to sell the said
free negro into slavery: the purchase-money to be
paid to the person so remanded into servitude, or
kept in hand by the protector and governor for the
benefit of his family.
42. And be it enacted, that the gover- Governorto
receive andI
nor in each colony shall be assistant to the transmit annual reports.
execution of this act, and shall receive the
reports of the protector, and such other accounts as
he shall judge material, relative thereto, and shall
transmit the same annually to one of his Majesty's
principal secretaries of state.
VOL. VI. 19
? ? ? ? A
LETTER
TO
THE CHAIRMAN OF THE BUCKINGHAMSHIRE MEETING,
HELD AT AYLESBURY, APRIL 13, 1780,
ON THE SUBJECT OF
PARLIAMENTARY REFORM.
? ? ? ? NOTE.
THE meeting of the freeholders of the County of Buckingham, which occasioned the following Letter, was called for the purpose of taking into consideration a petition to Parliament for
shortening the duration of Parliaments, and for a more equal
representation of the people in the House of Commons.
? ? ? ? LETTER.
SIR, --Having heard yesterday, by mere accident,
that there is an intention of laying before the
county meeting new matter, which is not contained in
our petition, and the consideration of which had been
deferred to a fitter time by a majority of our committee in London, permit me to take this method of submitting to you my reasons for thinking, with our committee, that nothing ought to be hastily determined upon the subject.
Our petition arose naturally from distresses which
we felt; and the requests which we made were in
effect nothing more than that such things should be
done in Parliament as it was evidently the duty of
Parliament to do. But the affair which will be proposed to you by a person of rank and ability is an
alteration in the constitution of Parliament itself. It
is impossible for you to have a subject before you of
more importance, and that requires a more cool and
more mature consideration, both on its own account,
and for the credit of our sobriety of mind, who are
to resolve upon it.
The county will in some way or other be called
upon to declare it your opinion, that the House of
Commons is not sufficiently numerous, and that the
-elections are not sufficiently frequent, - that an hundred new knights of the shire ought to be added, and
that we are to have a new election once in three
? ? ? ? 294 LETTER TO THE BUCKINGHAMSHIRE MEETING
years for certain, and as much oftener as the king
pleases. Such will be the state of things, if the proposition made shall take effect.
All this may be proper. But, as an honest man, I
cannot possibly give my vote for it, until I have considered it more fully. I will not deny that our Constitution may have faults, and that those faults, when found, ought to be corrected; but, on the whole,
that Constitution has been our own pride, and an
object of admiration to all other nations. It is not
everything which appears at first view to be faulty,
in such a complicated plan, that is to be determined
to be so in reality. To enable us to correct the Constitution, the whole Constitution must be viewed together; and it must be compared with the actual state of the people, and the circumstances of the
time. For that which taken singly and by itself may
appear to be wrong, when considered with relation
to other things, may be perfectly right, - or at least
such as ought to be patiently endured, as the means
of preventing something that is worse. So far with
regard to what at first view may appear a distemper in
the Constitution. As to the remedy of that distemper
an equal caution ought to be used; because this latter consideration is not single and separate, no more
than the former. There are many things in reformation which would be proper to be done, if other things
can be done along with them, but which, if they
cannot be so accompanied, ought not to be done at
all. I therefore wish, when any new matter of this
deep nature is proposed to me, to have the whole
scheme distinctly in my view, and full time to consider of it. Please God, I will walk with caution, whenever I am not able clearly to see my way before me.
? ? ? ? ON PARLIAMENTARY REFORM. 295
I am now growing old. I have from my very early
youth been conversant in reading and thinking upon
the subject of our laws and Constitution, as well as
upon those of other times and other countries; I
have been for fifteen years a very laborious member
of Parliament, and in that time have had great opportunities of seeing with my own eyes the working of
the machine of our government, and remarking where
it went smoothly and did its business, and where it
checked in its movements, or where it damaged its
work; I have also had and used the opportunities of
conversing with men of the greatest wisdom and fullest experience in those matters; and I do declare to
you most solemnly and most truly, that, on the result
of all this reading, thinking, experience, and communication, I am not able to come to an immediate resolutibn in favor of a change of the groundwork of our Constitution, and in particular, that, in the present
state of the country, in the present state of our representation, in the present state of our rights and modes
of electing, in the present state of the several prevalent interests, in the present state of the affairs and
manners of this country, the addition of an hundred
knights of the shire, and hurrying election on election, will be things advantageous to liberty or good
government.
This is the present condition of my mind; and
this is my apology for not going as fast as others may
choose to go in this business. I do not by any means
reject the propositions; much less do I condemn the
gentlemen who, with equal good intentions, with
much better abilities, and with infinitely greater personal weight and consideration than mine, are of
opinion that this matter ought to be decided upon
instantly.
? ? ? ? 296 LETTER TO THE BUCKINGHAMSHIRE MEETING
I most heartily wish that the deliberate sense of
the kingdom on this great subject should be known. When it is known, it must be prevalent. It would
be dreadful indeed, if there was any power in the
nation capable of resisting its unanimous desire, or
even the desire of any very great and decided majority of the people. The people may be deceived in their choice of an object; but I can scarcely conceive any
choice they can make to be so very mischievous as
the existence of any human force capable of resisting
it. It will certainly be the duty of every man, in the
situation to which God has called him, to give his
best opinion and advice upon the matter: it will not
be his duty, let him think what he will, to use allny
violent or any fraudulent means of counteracting the
general wish, or even of employing the legal and
constructive organ of expressing the people's sense
against the sense which they do actually entertain.
In order that the real sense of the people should be
known upon so great an affair as this, it is of absolute
necessity that timely notice should be given, - that
the matter should be prepared in open committees,
fromn a choice into which no class or description of
men is to be excluded, - and the subsequent county
meetings should be as full and as well attended as
possible. Without these precautions, the true sense
of the people will ever be uncertain. Sure I am,
that no precipitate resolution on a great change in
the fundamental constitution of any country can ever
be called the real sense of the people.
I trust it will not be taken amiss, if, as an inhabitant and fireeholder of this county, (one, indeed,
among the most inconsiderable,) I assert my right of
dissenting (as I do dissent fully and directly) from
? ? ? ? ON PARLIAMENTARY REFORM. 297
any resolution whatsoever on the subject of an alteration in the representation and election of the kingdom at this time. By preserving this right, and exercising it with temper and moderation, I trust I cannot offend the noble proposer, for whom no man
professes or feels more respect and regard than I do.
A want of concurrence in everything which can be
proposed will in no sort weaken the energy or distract the efforts of men of upright intentions upon
those points in which they are agreed. Assemblies
that are met, and with a resolution to be all of a
mind, are assemblies that can have no opinion at all
of their own. The first proposer of any measure
must be their master. I do not know that an amicable variety of sentiment, conducted with mutual
good-will, has any sort of resemblance to discord, or
that it can give any advantage whatsoever to the enemies of our common cause. On the contrary, a
forced and fictitious agreement (which every universal agreement imust be) is not becoming the cause of
freedom. If, however, any evil should arise from it,
(which I confess I do not foresee,) I am happy that
those who have brought forward new and arduous
matter, when very great doubts and some diversity
of opinion must be foreknown, are of authority and
weight enough to stand against the consequences.
I humbly lay these my sentiments before the county. They are not taken up to serve any interests of
my own, or to be subservient to the interests of any
man or set of men under heaven. I could wish to
be able to attend our meeting, or that I had time to
reason this matter more fully by letter; but I am
detained here upon our business: what you have already put upon us is as much as we can do. If we
? ? ? ? 298 LETTER TO THE BUCKINGHAMSHIRE MEETING.
are prevented from going through it with any effect,
I fear it will be in part owing not more to the resistance of the enemies of our cause than to our imposing on ourselves such tasks as no human faculties, employed as we are, can be equal to. Our worthy
members have shown distinguished ability and zeal
in support of our petition. I am just going down to
a bill brought in to frustrate a capital part of your
desires. The minister is preparing to transfer the
cognizance of the public accounts from those whom
you and the Constitution have chosen to control them,
to unknown persons, creatures of his own. For so
much he annihilates Parliament.
I have the honor, &c.
EDMUND BURKE.
CHARLES STREET, 12th April, 1780.
? ? ? ? FRAGMENTS OF A TRACT RELATIVE TO
TIHE LAWS AGAINST POPERY IN IRELAND.
? ? ? ? NOTE.
rHE condition of the Roman Catholics in Ireland appears to
have engaged the attention of Mr. Burke at a very early period
of his political life. It was probably soon after the year 1765
that he formed the plan of a work upon that subject, the fragments of which are now given to the public. No title is prefixed to it in the original manuscript; and the Plan, which it has been thought proper to insert here, was evidently designed
merely for the convenience of the author. Of the first chapter
some unconnected fragments only, too imperfect for publication,
have been found. Of the second there is a considerable portion,
perhaps nearly the whole; but the copy from which it is printed
is evidently a first rough draught. The third chapter, as far as
it goes, is taken from a fair, corrected copy; but the end of the
second part of the first head is left unfinished, and the discussion
of the second and third heads was either never entered upon or
the manuscript containing it has unfortunately been lost. What
follows the third chapter appears to have been designed for the
beginning of the fourth, and is evidently the first rough draught;
and to this we have added a fragment which appears to have
been a part either of this or the first chapter.
In the volume with which it is intended to close this posthumous publication of Mr. Burke's Works, we shall have occasion
to enter into a more particular account of the part which he
took in the discussion of this great political question. At present
it may suffice to say, that the Letter to Mr. Smith, the Second
Letter to Sir Hercules Langrishe, and the Letter to his Son,
which here follow in order the Fragment on the Popery Laws,
are the only writings upon this subject found amongst his papers
in a state fit to appear in this stage of the publication. What
remain are some small fragments of the Tract, and a few letters
containing no new matter of importance.
? ? ? ? ON THE POPERY LAWS. RACT
ON THE POPERY LAWS.
THE PLAN.
PROPOSE, first, to make an Introduction, in order to show the propriety of a closer inspection into the affairs of Ireland; and this takes up the first
chapter, which is to be spent in this introductory matter, and in stating the Popery laws in general, as one leading cause of the imbecility of the country. CH. II. states particularly the laws themselves, in
a plain and popular manner.
CH. III. begins the remarks upon them, under the
heads of, 1st, The object, - which is a numerous people; 2ndly, Their means, - a restraint on property; 3rdly, Their instruments of execution, - corrupted
morals, which affect the national prosperity.
CH. IV. The impolicy of those laws, as they affect the national security.
CH. V. Reasons by which the laws are supported,
and answers to them.
CHAPTER II.
IN order to lay this matter with full satisfaction
before the reader, I shall collect into one point of
view, and state as shortly and as clearly as I am
able, the purport of these laws, according to the
? ? ? ? 302 TRACT ON THE POPERY LAWS.
objects which they affect, without making at present
any further observation upon them, but just what
shall be necessary to render the drift and intention of
the legislature and the tendency and operation of the
laws the more distinct and evident.
I shall begin with those which relate to the possession and inheritance of landed property in Popish
hands. The first operation of those acts upon this
object was wholly to change the course of descent by
the Common Law, to take away the right of primogeniture, and, in lieu thereof, to substitute and establish a new species of Statute Gavelkind. By this
law, on the death of a Papist possessed of an estate
in fee simple or in fee tail, the land is to be divided
by equal portions between all the male children; and
those portions are likewise to be parcelled out, share
and share alike, amongst the descendants of each son,
and so to proceed in a similar distribution ad infinitum. From this regulation it was proposed that some
important consequences should follow. First, by taking away the right of primogeniture, perhaps in the
very first generation, certainly in the second, the
families of Papists, however respectable, and their fortunes, however considerable, would be wholly dissipated, and reduced to obscurity and indigence, without any possibility that they should repair them by their
industry or abilities, -being, as we shall see anon,
disabled from every species of permanent acquisition.
Secondly, by this law the right of testamentation is
taken away, which the inferior tenures had always
enjoyed, and all tenures from the 27th HIen. VIII.
Thirdly, the right of settlement was taken away, that
no such persons should, from the moment the act
passed, be enabled to advance themselves in fortune
? ? ? ? TRACT ON THE POPERY LAWS. 303
or connection by marriage, being disabled from making any disposition, in consideration of such marriage, but what the law had previously regulated: the reputable establishment of the eldest son, as representative of the family, or to settle a jointure, being commonly
the great object in such settlements, which was the
very power which the law had absolutely taken away.
The operation of this law, however certain, might
be too slow. The present possessors might happen to
be long-lived. The legislature knew the natural impatience of expectants, and upon this principle they
gave encouragement to children to anticipate the
inheritance. For it is provided, that the eldest son
of any Papist shall, immediately on his conformity,
change entirely the nature and properties of his father's legal estate: if he before held in fee simple,
or, in other words, had the entire and absolute domillion over the land, he is reduced to an estate for
his life only, with all the consequences of the natural
debility of that estate, by which he becomes disqualified to sell, mortgage, charge, (except for his life,)
or in any wise to do any act by which he may raise
money for relief in his most urgent necessities. The
eldest son, so conforming, immediately acquires, and
in the lifetime of his father, the permanent part, what
our law calls the reversion and inheritance of the
estate; and he discharges it by retrospect, and annuls every sort of voluntary settlement made by the father ever so long before his conversion. This he
may sell or dispose of immediately, and alienate it
from the family forever.
Having thus reduced his father's estate, he may
also bring his father into the Court of Chancery,
where he may compel him to swear to the value of
? ? ? ? 304 TRACT ON THE POPERY LAWS.
his estate, and to allow him out of that possession
(which had been before reduced to an estate for life)
such an immediate annual allowance as the Lord
Chancellor or Lord Keeper shall judge suitable to his
age and quality.
This indulgence is not confined to the eldest son.
The other children likewise, by conformity, may acquire the same privileges, and in the same manner
force from their father an immediate and independent maintenance. It is very well worth remarking,
that the statutes liave avoided to fix any determinate
age for these emancipating conversions; so that the
children, at any age, however incapable of choice in
other respects, however immature or even infantile,
are yet considered sufficiently capable to disinherit
their parents, and totally to subtract themselves from
their direction and control, either at their own option,
or by the instigation of others. By this law the tenure and value of a Roman Catholic in his real property is not only rendered extremely limited and altogether precarious, but the paternal power is in all such families so enervated that it may well be considered as entirely taken away; even the principle upon
which it is founded seems to be directly reversed.
However, the legislature feared that enough was not
yet done upon this head. The Roman Catholic parent, by selling his real estate, might in some sort preserve the dominion over his substance and his family,
and thereby evade the operation of these laws, which
intended to take away -both. Besides, frequent revolutions and many conversions had so broken the
landed property of Papists in that kingdom, that it
was apprehended that this law could have in a short
time but a few objects upon which it would be capa.
ble of operating.
? ? ? ? TRACT ON THE POPERY LAWS. 305
To obviate these inconveniences another law was
made, by which the dominion of children over their
parents was extended universally throughout the
whole Popish part of the nation, and every child of
every Popish parent was encouraged to come into
what is called a court of equity, to prefer a bill
against his father, and compel him to confess, uponl
oath, the quantity and value of his substance, personal as well as real, of what nature soever, or howsoever it might be employed; upon which discovery, the court is empowered to seize upon and allocate, for
the immediate maintenance of such child or children,
any sum not exceeding a third of the whole fortune:
and as to their future establishment on the death of
the father, no limits are assigned; the Chancery may,
if it thinks fit, take the whole property, personal as
well as real, money, stock in trade, &c. , out of the
power of the possessor, and secure it in anly manner
they judge expedient for that purpose; for the act
has not assigned any sort of limit with regard to the
quantity which is to be charged, or given any direction concerning the means of charging and securing
it: a law which supersedes all observation.
But the law is still more extensive in its provision. Because there was a possibility that the parent,
though sworn, might by false representations evade
the discovery of the ultimate value of his estate, a
new bill may be at any time brought, by one, any, or
all of the children, for a further discovery; his effects
are to undergo a fresh scrutiny, and a new distribnution is to be made in consequence of it.
So that the
parent has no security against perpetual inquietude,
and the reiteration of Chancery suits, but by (what
is somewhat difficult for human nature to coinply
VOL. VI. 20
? ? ? ? 306 TRACT ON THE POPERY LAWS.
with) fully, and without reserve, abandoning his
whole property to the discretion of the court, to be
disposed of in favor of such children.
But is this enough, and has the parent purchased
his repose by such a surrender? Very far from it.
The law expressly, and very carefully, provides that he
shall not: before he can be secure from the persecution of his children, it requires another and a much
more extraordinary condition: the children are authorized, if they can find that their parent has by
his industry, or otherwise, increased the value of his
property since their first bill, to bring another, compelling a new account of the value of his estate, in
order to a new distribution proportioned to the value
of the estate at the time of the new bill preferred.
They may bring such bills, toties quoties, upon every
improvement of his fortune, without any sort of limitation of time, or regard to the frequency of such
bills, or to the quantity of the increase of the estate,
which shall justify the bringing them. This act expressly provides that he shall have no respite from
the persecution of his children, but by totally aban-. doning all thoughts of improvement and acquisition.
This is going a great way, surely: but the laws in,question have gonle much further. Not satisfied with,callinlg upon children to revolt against their parents,. and to possess themselves of their substance, there:are cases where the withdrawing of the child from his father's obedience is not left to the optioni of the
child himself: for, if the wife of a Roman Catholic
should choose to change her religion, from that moment she deprives her husband of all management
and direction of his childrenl, and even of all the ten,der satisfaction which a parent Call feel in their so
? ? ? ? TRACT ON THE POPERY LAWS. 307
ciety, and which is the only indemnification he can
have for all his cares and sorrows; and they are to
be torn forever, at the earliest age, from his house
and family: for the Lord Chancellor is not only authorized, but he is strongly required, to take away
all his children from such Popish parent, to appoint
where, in what manner, and by whom they are to be
educated; and the father is compelled to pay, not for
the ransom, but for the deprivation of his children,
and to furnish such a sum as the Chancellor thinks
proper to appoint for their education to the age of
eighteen years. The case is the same, if the husband
should be the conformist; though how the law is to
operate in this case I do not see: for the act expressly says, that the child shall be taken from such Popish
parent; and whilst such husband and wife cohabit,
it will be impossible to put it into execution without
taking the child from one as well as from the other;
and then the effect of the law will be, that, if either
husband or wife becomes Protestant, both are to be
deprived of their children.
The paternal power thus being wholly abrogated, it
is evident that by the last regulation the power of an
husband over his wife is also considerably impaired;
because, if it be in her power, whenever she pleases,
to subtract the children from his protection'and obedience, she herself by that hold inevitably acquires a
power and superiority over her husbaind.
But she is not left dependent upon this oblique
influence: for, if in any marriage settlement the husballd has reserved to him a power of making a jointure, and he dies without settling ally, her conformity executes his powers, and executes them in as large
extent as the Chancellor thinks fit. The husband is
? ? ? ? 308 TRACT ON THE POPERY LAWS.
deprived of that coercive power over his wife which
he had in his hands by the use he might make of the
discretionary power reserved in the settlement.
But if no such power had been reserved, and no
such settlement existed, yet, if the husband dies, leav
ing his conforming wife without a fixed provision by
some settlement on his real estate, his wife may apply to Chancery, where she shall be allotted a portion from his leases, and other personal estate, not exceeding one third of his whole clear substance. The laws in this instance, as well as in the former, have presumed that the husband has omitted to make all the provision whlich he might have done, for no other
reason than that of her religion. If, therefore, she
chooses to balance any domestic misdemeanors to
her husband by the public merit of conformity to
the Protestant religion, the law will suffer no plea
of such misdemeanors to be urged on the husband's
part, nor proof of that kind to be entered into. She
acquires a provision totally independent of his favor,
and deprives him of that source of domestic authority
which the Common Law had left to him, that of rewarding or punishing, by a voluntary distribution of
his effects, what in his opinion was the good or ill
behavior of his wife.
Thus the laws stand with regard to the property
already acquired, to its mode of descent, and to family powers. Now as to the new acquisition of real property, and both to the acquisition and security of
personal, the law stands thus:All persons of that persuasion are disabled from
taking or purchasing, directly or by a trust, any
lands, any mortgage upon land, any rents or profits
from land, any lease, interest, or term of any land,
? ? ? ? TRACT ON THE POPERY LAWS. 309
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 ipsofacto 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 offavores ampliandi, &c. , is re
? ? ? ? 810 TRACT ON THE POPERY LAWS.
versed by this act, lest any favor should be shown, or
the force and operation of the law in any part of its
progress be enervated. All issues to be tried on this
act are to be tried by none but known Protestants.
It is here necessary to state as a part of this law
what has been for some time generally understood as
a certain consequence of it. The act had expressly
provided that a Papist could possess no sort of estate
which might affect land (except as before excepted).
On this a difficulty did, not unnaturally, arise. It is
generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to
be delivered unto the creditor until the obligation is
satisfied, under a writ called Elegit, and this writ has
been ever since the ordinary assurance of the land,
and the great foundation of general credit in the
nation. Although the species of holding under this
writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security,
because it may create an estate, however precarious,
in land, their whole debt or charge is forfeited, and
becomes the property of the Protestant informer.
Thus you observe, first, that by the express words of
the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore,
most people who lend money would, I believe, consider as none at all.
Under this head of the acquisition of property, the
law meets them in every road of industry, and in its
? ? ? ? TRACT ON THE POPERY LAWS. 311
direct and consequential provisions throws almost all
sorts of obstacles in their way. For they are not only
excluded from all offices in Church and State, which,
though a just and necessary provision, is yet no small
restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches.
This point is carried to so scrupulous a severity,
that chamber practice, and even private conveyancing,
the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this:
for every barrister, six clerk, attorney, or solicitor, is
obliged to take a solemn oath not to employ persons
of that persuasion, -- no, not as hackney clerks, at
the miserable salary of seven shillings a week. No
tradesman of that persuasion is capable by any service or settlement to obtain his freedom in any town corporate; so that they trade and work in their own
native towns as aliens, paying, as such, quarterage.
and other charges and impositions. They are expressly forbidden, in whatever employment, to take more than two apprentices, except in the linen manufacture only.
In every state, next to the care of the life and
properties of the subject, the education of their youth
has been a subject of attention. Iln the Irish laws
this point has not been neglected. Those who are
acquainted with the constitution of our universities
need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in
them who do not previously take all the tests, oaths,
and declarations. Lest they should be enabled to sup
? ? ? ? 312 TRACT ON THE POPERY LAWS.
ply 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 oil 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 lie forfeits for his life all his lands, hereditaments, offices, and estate of freehold, and all
trusts, powers, or interests therein. All persons concerned in sending them or maintaining them abroad,
by the least assistance of money or otherwise, are inlvolved 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 eveni
? ? ? ? TRACT ON THE POPERY LAWS. 313
suspected of sending or assisting, and examine them
and other persons oni 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 abovementioned 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 solme species of remedy in this case
apparently of much hardship, where one man is convicted upon evidence given against another, if he has the good fortune to live; for, within a twelvemonth
after his return, or his age of twenty-one, he has a
right to call for a new trial, in which he also is to undertake the negative proof, and to show by sufficient evidence that he has not been sent abroad against the
intention of the act. If he succeeds in this difficult
exculpation, and demonstrates his innocence to the
satisfaction of the court, he forfeits all his goods and
? ? ? ? 314 TRACT ON THE POPERY LAWS.
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 Uinfortunate
circumstances, as in the former case for their innocence, in this upon account of their expiation: if within six months after their return, with the punctilious observation of many ceremonies, they conform to the
Established Church, and take all the oaths and subscriptions, the legislature, in consideration of the
incapable age in which they were sent abroad, of the
merit of their early conformity, and to encourage
conversions, only confiscates, as in the former case,
the whole personal estate, and the profits of the real;
in all other respects, restoring and rehabilitating the
party.
So far as to property and education. There remain
some other heads upon which the acts have changed
the course of the Common Law; and first, with regard to the right of self-defence, which consists in the
use of arms. This, though one of the rights by the
law of Nature, yet is so capable of abuses that it may
not be unwise to make some regulations concerning
them; and many wise nations have thought proper to
set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on
occasion of some imminent danger to the public
from foreign invasion or domestic commotions.
But provisions in time of trouble proper, and perhaps necessary, may become in time of profound
peace a scheme of tyranny. The method which the
statute law of Ireland has taken upon this delicate
? ? ? ? TRACT ON THE POPERY L &WS. 315
article is, to get rid of all difficulties at once by an
universal prohibition to all persons, at all times, and
under all circumstances, who are not Protestants, of
using or keeping any kind of weapons whatsoever.
In order to enforce this regulation, the whole spirit
of the Common Law is changed, very severe penalties
are enjoined, the largest powers are vested in the
lowest magistrates. Any two justices of peace, or
magistrates of a town, with or without information,
at their pleasure, by themselves or their warrant, are
empowered to enter and search the house of any
Papist, or even of any other person, whom they
suspect to keep such arms in trust for them. The
only limitation to the extent of this power is, that the
search is to be made between the rising and setting
of the sun: but even this qualification extends no
further than to the execution of the act in the open
country; for in all cities and their suburbs, inll towns
corporate and market-towns, they may at their discretion, and without information, break open houses and institute. such search at any hour of the day or
night. This, I say, they may do at their discretion;
and it seems a pretty ample power in the hands of
such magistrates. However, the matter does by no
means totally rest on their discretion. Besides the
discretionary and occasional search, the statute has
prescribed one that is general and periodical. It is
to be made annually, by the warrant of tile 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 occa
? ? ? ? 316 TRACT ON THE POPERY LAWS.
sional 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 prcemunire, -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 prcemunire. So far as to involuntary;
-now as to voluntary informers: the law entitles
them to half the penalty incurred by carrying or
keeping arms; for, on conviction of this offence, the
penalty upon persons, of whatever substance, is the
sum of fifty pounds and a year's imprisonment, which
cannot be remitted even by the crown.
The only exception to this law is a license from the
Lord Lieutenant and Council to carry arms, which,
by its nature, is extremely limited, and I do not sup
? ? ? ? TRACT ON THE POPERY LAWS. 317
pose that there are six persons now in the kingdom
who have been fortunate enough to obtain it.
There remains, after this system concerning property and defence, to say something concerning the exercise of religion, which is carried on in all persuasions, but especially in the Romish, by persons appointed for that purpose. The law of King William
and Queen Anne ordered all Popish parsons exercising ecclesiastical jurisdiction, all orders of monks and friars, and all priests, not then actually in parishes,
and to be registered, to be banished the kingdom;
and if they should return from exile, to be hanged,
drawn, and quartered. Twenty pounds rdward 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
? ? ? ? 318 TRACT ON THE POPERY LAWS.
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 nmuch order as can be followed in a matter of itself
as involved and intricate as it is important.
The first and most capital consideration with regard
to this, as to every object, is the extent of it. And
here it is necessary to premise, this system of penalty
and incapacity has for its object no small sect or
obscure party, but a very numerous body of men,
a body which comprehends at least two thirds of that
whole nation: it amounts to 2,800,000 souls, a number sufficient for the materials constituent of a great people. Now it is well worthy of a serious and
dispassionate examination, whether such a system,
respecting such an object, be in reality agreeable to
any sound principles of legislation or any authorized
definition of law; for if our reasons or practices differ
from the general informed sense of mankind, it is very
moderate to say that they are at least suspicious.
? ? ? ? TRACT ON THE POPERY LAWS. 319
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 thle 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 tQ be unsettled, and the matter is under his
hands to mould it as he pleases; and if he finds it
untractable in the working, he may abandon it without incurring any new inconvenience. But in the question concerning the repeal of an old one, the
work is of more difficulty; because laws, like houses,
lean on one another, and the operation is delicate,
and should be necessary: the objection, in such a
case, ought not to arise from the natural infirmity
of human institutions, but from substantial'faults
which contradict the nature and end of law itself,faults not arising from the imperfection, but from the misapplication and abuse of our reason. As no
legislators can regard the minimra 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. ill 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,
? ? ? ? 820 TRACT ON THE POPERY LAWS.
and therefore determines it as the proper object of
abrogation and repeal, so far as regards its civil existence. The objection here is, as we observed, by
no means on account of the imperfection of the law;
it is on account of its erroneous principle: for if this
be fundamentally wrong, the more perfect the law
is made, the worse it becomes. It cannot be said
to have the properties of genuine law, even in its
imperfections and defects. The true weakness and
opprobrium of our best general constitutions is, that
they cannot provide beneficially for every particular
case, and thus fill, adequately to their intentions, the
circle of universal justice. But where the principle
is faulty, the erroneous part of the law is the beneficial, and justice only finds refuge in those holes
and corners which had escaped the sagacity and inquisition of the legislator. The happiness or misery
of multitudes can never be a thing indifferent. A
law against the majority of the people is in substance a law against the people itself; its extent determines its invalidity; it even changes its character as it enlarges its operation: it is not particular injustice, but general oppression; and can no longer
be considered as a private hardship, which might
be borne, but spreads and grows up into the unfortunate importance of a national calamity.
Now as a law directed against the mass of' the
nation has not the nature of a reasonable institution,
so neither has it the authority: for in all forms of
government the people is the true legislator; and
whether the immediate and instrumental cause of
the law be a single person or. many, the remote and
efficient cause is the consent of the people, either
actual or implied; and such consent is absolutely
?