o not clearly see into the propriety of the means by which they are
conducted
to that desirable end.
Edmund Burke
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
? ? ? ? TRACT ON THE POPERY LAWS. 321
essential to its validity. To the solid establishment
of every law two things are essentially requisite:
first, a proper and sufficient human power to declare
and modify the matter of the law; and next, such a
fit and equitable constitution as they have a right
to declare and render binding. With regard to the
first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they d.
o not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as all act
of homage and just deference to a reason which the
necessity of government has made superior to their
own. But though the means, and indeed the na --
ture, of a public advantage may not always be evident to the understanding of the subject, no one
is so gross and stupid as not to distinguish between
a benefit and an illjury. No one can imagine, then,
an exclusion of a great body of men, not fiom favors, privileges, and trusts, but from the common
advantages of society, can ever be a thing intended
for their good, or can ever be ratified by any implied consent of theirs. If, therefore, at least an
implied human consent is necessary to the existence
of a law, such a constitution cannot in propriety be
a law at all.
But if we could suppose that such a ratification
was made, not virtually, but actually, by the people,
not representatively, but even collectively, still it:
would be null and void. They have no right to
make a law prejudicial to the whole community,
even though the delinquents in making such an act
VOL. VI. 21
? ? ? ? 322 TRACT ON THE POPERY LAWS.
should be themselves the chief sufferers by it; because it would be made against the principle of a
superior law, which it is not in the power of any
community, or of the whole race of man, to alter, -
I mean the will of Him who gave us our nature, and
in giving impressed an invariable law upon it. It
would be hard to point out any error more truly
subversive of all the order and beauty, of all the
peace and happiness of human society, than the position, that ally body of men have a right to make
what laws they please, - or that laws can derive any
authority from their institution merely, and independent of the quality of the subject-matter. No
arguments of policy, reason of state, or preservation
of the constitution can be pleaded in favor of such
a practice. They may, indeed, impeach the frame
of that constitution, but can never touch this immovable principle. This seems to be, indeed, the
doctrine which Hobbes broached in the last century,
and which was then so frequently and so ably refuted. Cicero exclaims with the utmost indignation
and contempt against such a notion: * he considers
it not only as unworthy of a philosopher, but of an illiterate peasant; that of all things this was the most
truly absurd, to fancy that the rule of justice was to
be taken from the constitutions of commonwealths,
or that laws derived their authority from the statutes
* Cicero de Legibus, Lib. I. 14, 15 et 16. -" 0 rem dignam, in qua
non modo docti, verum etiam agrestes erubescant! Jam vero illud
stultissimum existimare omnia justa esse, qu-e scita sint in populorum institutis aut legibus," etc. "Quod si populorum jussis, si
principum decretis, si sententiis judicum jura constituerentur, jus esset latrocinari, jus adulterare, jus testamnenta falsa supponere, si haec suffragiis aut scitis multitudinis probarentur. "
? ? ? ? TRACT ON THE POPERY LAWS. 323
of the people, the edicts of princes, or the decrees of
judges. If it be admitted that it is not the blackletter and the king's arms that makes the law, we
are to look for it elsewhere.
In reality there are two, and only two, foundations
of law; and they are both of them conditions without which nothing can give it any force: I mean
equity and utility. With respect to the former, it
grows out of the great rule of equality, which is
grounded upon our common nature, and which Philo, with propriety and beauty, calls the mdther of justice. All human laws are, properly speaking,
only declaratory; they may alter the mode and application, but have no power over the substance of original justice. The other foundation of law, which
is utility, must be understood, not of partial or limited, but of general and public utility, connected in
the same manner with, and derived directly from,
our rational nature: for any other utility may be the
utility of a robber, but cannot be that of a citizen,the interest of the domestic enemy, and not that of a member of the commonwealth. This present equali
ty can never be the foundation of statutes which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice. Law is a mode
of human action respecting society, and must be
governed by the same rules of equity which govern
every private action; and so Tully considers it in his
Offices as the only utility agreeable to that nature:
"Unum debet esse omnibus propositum, ut eadern sit
utilitas uniuscujusque et universorum; quam si ad se
quisque rapiat, dissolvetur omnis humana consortio. "
If any proposition can be clear in itself, it is this:
? ? ? ? 324 TRACT ON THE POPERY LAWS.
that a law which shuts out from all secure and valuable property the bulk of the people cannot be made for the utility of the party so excluded. This, therefore, is not the utility which Tully mentions. But
if it were true (as it is not) that the real interest of
any part of the community could be separated from
the happiness of the rest, still it would afford no just
foundation for a statute providing exclusively for that
interest at the expense of the other; because it would
be repugnant to the essence of law, which requires
that it be made as much as possible for the benefit
of the whole. If this principle be denied or evaded,
what ground have we left to reason on? We must at
once make a total change in all our ideas, and look
for a new definition of law. Where to find it I confess myself at a loss. If we resort to the fountains
of jurisprudence, they will not supply us with any
that is for our purpose. " Jus " (says Paulus) " pluribus modis dicitur: uho modo, cumr id, quod semper cequumrn et bonum est, j us dicitur, ut est jus naturale ";
-- this sense of the word will not be thought, I imagine, very applicable to our penal laws; -" altero modo, quod omnibus aut pluribus in unaquaque civitate
utile est, ut est jus civile. " Perhaps this latter will be
as insufficient, and would rather seem a censure and
condemnation of the Popery Acts than a definition
that includes them; and there is no other to be
found in the whole Digest; neither are there any
modern writers whose ideas of law are at all narrower.
It would be far more easy to heap up authorities
on this article than to excuse the prolixity and tediousness of producing any at all in proof of a point which, though too often practically denied, is in its
? ? ? ? TRACT ON THE POPERY LAWS. 325
theory almost self-evident. For Suarez, handling
this very question, Utrum de ratione et substantia
legis esse ut propter commune bonum feratur, does
not hesitate a moment, finding no ground ill reason or authority to render the affirmative in the
least degree disputable: " In qucestione ergo proposita" (says lie) "nulla est inter authored controversia; sed omnium commune est axioma de substantia et
ratione legis esse, ut pro communi bono feratur; ita ut
propter illud prcecipue tradatur "; having observed in
another place, " Contra omnem rectitudinem est bonum
commune ad privatum ordinare, seu totum ad partem
propter ipsum referre. " Partiality and law are contradictory terms. Neither the merits nor the ill deserts, neither the wealth and importance nor the indigence and obscurity, of the one part or of the other, can make any alteration in this fundamental truth.
On any other scheme, I defy any man living to settle
a correct standard which may discriminate between
equitable rule and the most direct tyranny. For if
we can once prevail upon ourselves to depart from
the strictness and integrity of this principle in favor
even of a considerable party, the argument will hold
for one that is less so; and thus we shall go on, narrowing the bottom of public right, until step by step
we arrive, though after no very long or very forced
deduction, at what one of our poets calls the enormous
faith, -the faith of the many, created for the advantage of a single person. I cannot see a glimmering
of distinction to evade it; nor is it possible to allege
any reason for the proscription of so large a part of
the kingdom, which would not hold equally to support, under parallel circumstances, the proscription
of the whole. .
? ? ? ? 326 TRACT ON THE POPERY LAWS.
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
? ? ? ? TRACT ON THE POPERY LAWS. 327
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 sufficienlt 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,
? ? ? ? 328 TRACT ON THE POPERY LAWS.
he might be supposed to have as little need as dispo.
sition to render any sort of account to the world of
his procedure towards his subjects. But the persecutior4 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
? ? ? ? TRACT ON THE POPERY LAWS. 329
the Roman Catholics of Ireland ever aspired to undei
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 unhap.
py country. It cannot be thought to arise from af
fectation, 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
? ? ? ? 330 TRACT ON THE POPERY LAWS.
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 bountfully 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
? ? ? ? TRACT ON THE POPERY LAWS. 331
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 jurispru
? ? ? ? 332 TRACT ON THE POPERY LAWS.
dence, 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 blaniable sense of the word, Ilor ever call be, such a thing
? ? ? ? TRACT ON THE POPERY L. . AWS. 333
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
? ? ? ? 334 TRACT ON THE POPERY LAWS.
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 rever.
ence, I am sure) the truth of our common Christianity, is not so clear as this proposition, - that all menl,
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
? ? ? ? TRACT ON THE POPERY LAWS. 335
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, all
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.
? ? ? ?
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
? ? ? ? TRACT ON THE POPERY LAWS. 321
essential to its validity. To the solid establishment
of every law two things are essentially requisite:
first, a proper and sufficient human power to declare
and modify the matter of the law; and next, such a
fit and equitable constitution as they have a right
to declare and render binding. With regard to the
first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they d.
o not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as all act
of homage and just deference to a reason which the
necessity of government has made superior to their
own. But though the means, and indeed the na --
ture, of a public advantage may not always be evident to the understanding of the subject, no one
is so gross and stupid as not to distinguish between
a benefit and an illjury. No one can imagine, then,
an exclusion of a great body of men, not fiom favors, privileges, and trusts, but from the common
advantages of society, can ever be a thing intended
for their good, or can ever be ratified by any implied consent of theirs. If, therefore, at least an
implied human consent is necessary to the existence
of a law, such a constitution cannot in propriety be
a law at all.
But if we could suppose that such a ratification
was made, not virtually, but actually, by the people,
not representatively, but even collectively, still it:
would be null and void. They have no right to
make a law prejudicial to the whole community,
even though the delinquents in making such an act
VOL. VI. 21
? ? ? ? 322 TRACT ON THE POPERY LAWS.
should be themselves the chief sufferers by it; because it would be made against the principle of a
superior law, which it is not in the power of any
community, or of the whole race of man, to alter, -
I mean the will of Him who gave us our nature, and
in giving impressed an invariable law upon it. It
would be hard to point out any error more truly
subversive of all the order and beauty, of all the
peace and happiness of human society, than the position, that ally body of men have a right to make
what laws they please, - or that laws can derive any
authority from their institution merely, and independent of the quality of the subject-matter. No
arguments of policy, reason of state, or preservation
of the constitution can be pleaded in favor of such
a practice. They may, indeed, impeach the frame
of that constitution, but can never touch this immovable principle. This seems to be, indeed, the
doctrine which Hobbes broached in the last century,
and which was then so frequently and so ably refuted. Cicero exclaims with the utmost indignation
and contempt against such a notion: * he considers
it not only as unworthy of a philosopher, but of an illiterate peasant; that of all things this was the most
truly absurd, to fancy that the rule of justice was to
be taken from the constitutions of commonwealths,
or that laws derived their authority from the statutes
* Cicero de Legibus, Lib. I. 14, 15 et 16. -" 0 rem dignam, in qua
non modo docti, verum etiam agrestes erubescant! Jam vero illud
stultissimum existimare omnia justa esse, qu-e scita sint in populorum institutis aut legibus," etc. "Quod si populorum jussis, si
principum decretis, si sententiis judicum jura constituerentur, jus esset latrocinari, jus adulterare, jus testamnenta falsa supponere, si haec suffragiis aut scitis multitudinis probarentur. "
? ? ? ? TRACT ON THE POPERY LAWS. 323
of the people, the edicts of princes, or the decrees of
judges. If it be admitted that it is not the blackletter and the king's arms that makes the law, we
are to look for it elsewhere.
In reality there are two, and only two, foundations
of law; and they are both of them conditions without which nothing can give it any force: I mean
equity and utility. With respect to the former, it
grows out of the great rule of equality, which is
grounded upon our common nature, and which Philo, with propriety and beauty, calls the mdther of justice. All human laws are, properly speaking,
only declaratory; they may alter the mode and application, but have no power over the substance of original justice. The other foundation of law, which
is utility, must be understood, not of partial or limited, but of general and public utility, connected in
the same manner with, and derived directly from,
our rational nature: for any other utility may be the
utility of a robber, but cannot be that of a citizen,the interest of the domestic enemy, and not that of a member of the commonwealth. This present equali
ty can never be the foundation of statutes which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice. Law is a mode
of human action respecting society, and must be
governed by the same rules of equity which govern
every private action; and so Tully considers it in his
Offices as the only utility agreeable to that nature:
"Unum debet esse omnibus propositum, ut eadern sit
utilitas uniuscujusque et universorum; quam si ad se
quisque rapiat, dissolvetur omnis humana consortio. "
If any proposition can be clear in itself, it is this:
? ? ? ? 324 TRACT ON THE POPERY LAWS.
that a law which shuts out from all secure and valuable property the bulk of the people cannot be made for the utility of the party so excluded. This, therefore, is not the utility which Tully mentions. But
if it were true (as it is not) that the real interest of
any part of the community could be separated from
the happiness of the rest, still it would afford no just
foundation for a statute providing exclusively for that
interest at the expense of the other; because it would
be repugnant to the essence of law, which requires
that it be made as much as possible for the benefit
of the whole. If this principle be denied or evaded,
what ground have we left to reason on? We must at
once make a total change in all our ideas, and look
for a new definition of law. Where to find it I confess myself at a loss. If we resort to the fountains
of jurisprudence, they will not supply us with any
that is for our purpose. " Jus " (says Paulus) " pluribus modis dicitur: uho modo, cumr id, quod semper cequumrn et bonum est, j us dicitur, ut est jus naturale ";
-- this sense of the word will not be thought, I imagine, very applicable to our penal laws; -" altero modo, quod omnibus aut pluribus in unaquaque civitate
utile est, ut est jus civile. " Perhaps this latter will be
as insufficient, and would rather seem a censure and
condemnation of the Popery Acts than a definition
that includes them; and there is no other to be
found in the whole Digest; neither are there any
modern writers whose ideas of law are at all narrower.
It would be far more easy to heap up authorities
on this article than to excuse the prolixity and tediousness of producing any at all in proof of a point which, though too often practically denied, is in its
? ? ? ? TRACT ON THE POPERY LAWS. 325
theory almost self-evident. For Suarez, handling
this very question, Utrum de ratione et substantia
legis esse ut propter commune bonum feratur, does
not hesitate a moment, finding no ground ill reason or authority to render the affirmative in the
least degree disputable: " In qucestione ergo proposita" (says lie) "nulla est inter authored controversia; sed omnium commune est axioma de substantia et
ratione legis esse, ut pro communi bono feratur; ita ut
propter illud prcecipue tradatur "; having observed in
another place, " Contra omnem rectitudinem est bonum
commune ad privatum ordinare, seu totum ad partem
propter ipsum referre. " Partiality and law are contradictory terms. Neither the merits nor the ill deserts, neither the wealth and importance nor the indigence and obscurity, of the one part or of the other, can make any alteration in this fundamental truth.
On any other scheme, I defy any man living to settle
a correct standard which may discriminate between
equitable rule and the most direct tyranny. For if
we can once prevail upon ourselves to depart from
the strictness and integrity of this principle in favor
even of a considerable party, the argument will hold
for one that is less so; and thus we shall go on, narrowing the bottom of public right, until step by step
we arrive, though after no very long or very forced
deduction, at what one of our poets calls the enormous
faith, -the faith of the many, created for the advantage of a single person. I cannot see a glimmering
of distinction to evade it; nor is it possible to allege
any reason for the proscription of so large a part of
the kingdom, which would not hold equally to support, under parallel circumstances, the proscription
of the whole. .
? ? ? ? 326 TRACT ON THE POPERY LAWS.
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
? ? ? ? TRACT ON THE POPERY LAWS. 327
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 sufficienlt 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,
? ? ? ? 328 TRACT ON THE POPERY LAWS.
he might be supposed to have as little need as dispo.
sition to render any sort of account to the world of
his procedure towards his subjects. But the persecutior4 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
? ? ? ? TRACT ON THE POPERY LAWS. 329
the Roman Catholics of Ireland ever aspired to undei
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 unhap.
py country. It cannot be thought to arise from af
fectation, 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
? ? ? ? 330 TRACT ON THE POPERY LAWS.
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 bountfully 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
? ? ? ? TRACT ON THE POPERY LAWS. 331
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 jurispru
? ? ? ? 332 TRACT ON THE POPERY LAWS.
dence, 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 blaniable sense of the word, Ilor ever call be, such a thing
? ? ? ? TRACT ON THE POPERY L. . AWS. 333
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
? ? ? ? 334 TRACT ON THE POPERY LAWS.
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 rever.
ence, I am sure) the truth of our common Christianity, is not so clear as this proposition, - that all menl,
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
? ? ? ? TRACT ON THE POPERY LAWS. 335
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, all
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.
? ? ? ?
