A foreign enemy has entered, or a strong
domestic
one has arisen in the
nation.
nation.
Edmund Burke
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.
? ? ? ? 336 TRACT ON THE POPERY LAWS.
CHAPTER III.
PART II.
THE second head upon which I propose to consider
those statutes with regard to their object, and which
is the next in importance to the magnitude, and of
almost equal concern in the inquiry into the justice
of these laws, is its possession. It is proper to recollect that this religion, which is so persecuted in its members; is the old religion of the country, and the
once established religion of the state, - the very same
which had for centuries received the countenance and
sanction of the laws, and from which it would at one
time have been highly penal to have dissented. In
proportion as mankind has become enlightened, the
idea of religious persecution, under any circumstances, has been almost universally exploded by all good and thinking men. The only faint shadow of
difficulty which remains is concerning the introduction of new opinions. Experience has shown, that, if it has been favorable to the cause of truth, it has
not been always conducive to the peace of society.
Though a new religious sect should even be totally
free in itself from any tumultuous and disorderly
zeal, which, however, is rarely the case, it has a tendency to create a resistance from the establishment in possession, productive of great disorders, and thus
becomes, innocently indeed, but yet very certainly,
the cause of the bitterest dissensions in the commonwealth. To a mind not thoroughly saturated with the tolerating maxims of the Gospel, a preventive
persecution, on such principles, might come recommended by strong, and, apparently, no immoral mo
? ? ? ? TRACT ON THE POPERY LAWS. 337
tives of policy, whilst yet the contagion was recent,
and had laid hold but on a few persons. The
truth is, these politics are rotten and hollow at bottom, as all that are founded upon any however minute a degree of positive injustice must ever be. But they are specious, and sufficiently so to delude a man
of sense and of integrity. But it is quite otherwis(
with the attempt to eradicate by violence a widespreading and established religious opinion. If the
people are ill an error, to inform them is not only
fair, but charitable; to drive them is a strain of the
most manifest injustice. If not the right, the presumption, at least, is ever on the side of possession. .
Are they mistaken? if it does not fully justify them,
it is a great alleviation of guilt, which may be mingled with their misfortune, that the error is none of
their forging,- that they received it on as good a
footing as they can receive your laws and your
legislative authority, because it was handed down
to them from their ancestors. The opinion may be
erroneous, but the principle is undoubtedly right;
and you punish them for acting upon a principle
which of all others is perhaps the most necessary
for preserving society, an implicit admiration and
adherence to the establishments of their forefathers.
If, indeed, the legislative authority was on -all
hands admitted to be the ground of religious persuasion, I should readily allow that dissent would
be rebellion. In this case it would make no difference whether the opinion was sucked in with the
milk or imbibed yesterday; because the same legislative authority which had settled could destroy it
with all the power of a creator over his creature.
But this doctrine is universally disowned, and for a.
VOL. VI 22
? ? ? ? 338 TRACT ON THE POPERY LAWS.
very plain reason. Religion, to have any force on
men's understandings, indeed to exist at all, must
be supposed paramount to laws, and independent
for its substance upon any human institution, - else
it would hle the absurdest thing in the world, an acknowledged cheat. Religion, therefore, is not believed because the laws have established it, but it is established because the leading part of the communlity have previously believed it to be true. As no
water can rise higher than its spring, no establish
ment can have more authority than it derives from
its principle; and the power of the government can
with no appearance of reason go further coercively
than to bind and hold down those who have once
consented to their opinions. The consent is the origin of the whole. If they attempt to proceed further, they disown the foundation upon which their own establishment was built, and they claim a religious assent upon mere human authority, which has
been just now shown to be absurd and preposterous,
and which they in fact confess to be so.
However, we are warranted to go thus far. The
people often actually do (and perhaps they cannot
in general do better) take their religion, not on the
*coercive, which is impossible, but on the influencing
authority of their governors, as wise and informed
men. But if they once take a religion on the word;of the state, they cannot in common sense do so a
second time, unless they have some concurrent reason for it. The prejudice in favor of your wisdom
is shook by your change. You confess that you have
been wrong, and yet you would pretend to dictate
by your sole authority; whereas you disengage the
mind by embarrassing it. For why should I prefer
? ? ? ? TRACT ON THE POPERY LAWS. 339
your opinion of to-day to your persuasion of yesterday? If we must resort to prepossessions for the ground of opinion, it is in the nature of man rather
to defer to the wisdom of times past, whose weakness is not before his eyes, than to the present, of whose imbecility he has daily experience. Veneration of antiquity is congenial to the human mind. When, therefore, an establishment would persecute
an opinion in possession, it sets against it all the powerful prejudices of human nature. It even sets its own authority, when it is of most weight, against
itself in that very circumstance in which it must necessarily have the least; and it opposes the stable prejudice of time against a new opinion founded on
mutability: a consideration that ibust render compulsion in such a case the more grievous, as there is no security, that, when the mind is settled in the new
opinion, it may not be obliged to give place to one
that is still newer, or even to a return of the old.
But when an ancient establishment begins early to
persecute an innovation, it stands upon quite other
grounds, and it has all the prejudices and presumptions on its side. It puts its own authority, not only
of compulsion, but prepossession, the veneration of
past age, as well as the activity of the present time,
against the opinion only of a private man or set of
men. If there be no reason, there is at least some
consistency in its proceedings. Commanding to constancy, it does nothing but that of which it sets an example itself. But an opinion at once new and persecuting is a monster; because, in the very instant
in which it takes a liberty of change, it does not
leave to you even a liberty of perseverance.
Is, then, no improvement to be brought into soci
? ? ? ? 340 TRACT ON THE POPERY LAWS.
ety? Undoubtedly; but not by compulsion, -- but by
encouragement, - but by countenance, favor, privileges, which are powerful, and are lawful instruments.
The coercive authority of the state is limited to what
is necessary for its existence. To this belongs the
whole order of criminal law. It considers as crimes
(that is, the object of punishment) trespasses against
those rules for which society was instituted. The
law punishes delinquents, not because they are not
good men, but because they are intolerably wicked.
It does bear, and must, with the vices and the follies
of men, until they actually strike at the root of
order. This it does in things actually moral. In
all matters of speculative improvement the case is
stronger, even wherb the matter is properly of human
cognizance. But to consider an averseness to improvement, the not arriving at perfection, as a crime,
is against all tolerably correct jurisprudence; for, if
the resistance to improvement should be great and
any way general, they would in effect give up the necessary and substantial part in favor of the perfection and the finishing.
But, say the abettors of our penal laws, this old
possessed superstition is such in its principles, that
society, on its general principles, cannot subsist along
with it. Could a man think such an objection possible, if he had not actually heard it made, -- an objection contradicted, not by hypothetical reasonings, but the clear evidence of the most decisive facts?
Society not only exists, but flourishes at this hour,
with this superstition, in many countries, under every
form of government, - in some established, in some
tblerated, in others upon an equal footing. And was
there no civil society at all in these kingdoms before
? ? ? ? TRACT ON THE POPERY LAWS. 341
the Reformation? To say it was not as well conllstituted as it ought to be is saying nothing at all to the
purpose; for that assertion evidently regards improvement, not existence. It certainly did then exist;
and it as certainly then was at least as much to the
advantage of a very great part of society as what we
have brought in the place of it: which is, indeed, a
great blessing to those who have profited of the
change; but to all the rest, as we have wrought,
that is, by blending general persecution with partial
reformation, it is the very reverse. We found the
people heretics and idolaters; we have, by way of
improving their condition, rendered them slaves and
beggars: they remain in all the misfortune of their
old errors, and all the superadded misery of their recent punishment. They were happy enough, in their
opinion at least, before the change; what benefits
society then had, they partook of them all. They
are now excluded from those benefits; and, so far
as civil society comprehends them, and as we have
managed the matter, our persecutions are so far from
being necessary to its existence, that our very reformation is made in a degree noxious. If this be
improvement, truly I know not what can be called
a depravation of society.
But as those who argue in this manner are perpetually shifting the question, having begun with objecting, in order to give a fair and public color to their scheme, to a toleration of those opinions as subversive
of society in general, they will surely end by abandoning the broad part of the argument, and attempting to show that a toleration of them is inconsistent with the established government among us. Now,
though this position be in reality as untenable as the
? ? ? ? 342 TRACT ON THE POPERY LAWS.
other, it is not altogether such an absurdity on the
face of it. All I shall here observe is, that those who
lay it down little consider what a wound they are
giving to that establishment for which they pretend
so much zeal. However, as this is a consideration,
not of general justice, but of particular and national
policy, and as I have reserved a place expressly,
where it will undergo a thorough discussion, I shall
not here embarrass myself with it, -- being resolved
to preserve all the order in my power, in the examination of this important, melancholy subject.
However, before we pass from this point concerning possession, it will be a relaxation of the mind,
not wholly foreign to our purpose, to take a short
review of the extraordinary policy which has been
held with regard to religion in that kingdom, from
the time our ancestors took possession of it. The
most able antiquaries are of opinion, and Archbishop Usher, whom I reckon amongst the first of them,
has, I think, shown, that a religion not very remote
from the present Protestant persuasion was that of
the Irish before the union of that kingdom to the
crown of England. If this was not directly the fact,
this at least seems very probable, that Papal authority was much lower in Ireland than in other countries. This union was made under the authority of an arbitrary grant of Pope Adrian, in order that the
Church of Ireland should be reduced to the same servitude with those that were nearer to his see. It is
not very wonderful that an ambitious monarch should
make use of any pretence in his way to so considerable an object. What is extraordinary is, that for a
very long time, even quite down to the Reformation,
and in their most solemn acts, the kings of England
? ? ? ? TRACT ON THE POPERY LAWS. 343
founded their title wholly on this grant: they called
for obedience from the people of Ireland, not on principles of subjection, but as vassals and mesne lords between them and the Popes; and they omitted no
measure of force or policy to establish that Papal authority, with all the distinguishing articles of religion connected with it, and to make it take deep root in
the minds of the people. Not to crowd instances ullnecessary, I shall select two, one of which is ill print, the other on record, - the one a treaty, the other all
act of Parliament. The first is the submission of the
Irish chiefs to Richard the Second, mentioned by Sir
John Davies. In this pact they bind themselves for
the future to preserve peace and allegiance to the
kings of England, under certain pecuniary penalties.
But what is remarkable, these fines were all covenanted to be paid into the Apostolical Chamber, supposing the Pope as the superior power, whose
peace was broken and whose majesty was violated
in disobeying his governor. By this time, so far as
regarded England, the kings had extremely abridged
the Papal power in many material particulars: they
had passed the Statute of Provisors, the Statute of
Prcemunire, -- and, indeed, struck out of the Papal
authority all things, at least, that seemed to infringe
on their temporal independence. In Ireland, however, their proceeding was directly the reverse: there they thought it expedient to exalt it at least as high
as ever: for, so late as the reign of Edward the
Fourth, the following short, but very explicit, act
of Parliament was passed: --
? ? ? ? 344 TRACT ON THE POPERY LAWS.
IV. ED. Cap. 3.
" An act, whereby letters patent of pardon from the
king to those that sue to Rome for certain benefices is void. Rot. Parl.
"Item, At the request of the commons, it is ordeyned and established, by authority of the said Parliament, that all maner letters patents of the king, of pardons or pardon granted by the king, or hereafter to be granted, to any provisor that claim any
title by the bulls of the Pope to any maner benefices,
where, at the time of the impetrating of the said bulls
of provision, the benefice is filll of an incumbent, that
then the said letters patents of pardon or pardons be
void in law and of none effect. "
When, by every expedient of force and policy, by
a war of some centuries, by extirpating a number of
the old, and by bringing in a number of new people
full of those opinions and intending to propagate
them, they had fully compassed their object, they
suddenly took another turn, - commenced an opposite persecution, made heavy laws, carried on mighty
wars, inflicted and suffered the worst evils, extirpated
the mass of the old, brought in new inhabitants; and
they continue at this day an oppressive system, and
may for four hundred years to come, to eradicate
opinions which by the same violent means they had
been four hundred years endeavoring by every means
to establish. They compelled the people to submit,
by the forfeiture of all their civil rights, to the Pope's,authority, in its most extravagant and unbounded
sense, as a giver of kingdoms; and now they refuise
even to tolerate them in the most moderate and chas
? ? ? ? TRACT ON THE POPERY LAWS. 345
tised sentiments concerning it. No country, I believe, since the world began, has suffered so much
on account of religion, or has been so variously harassed both for Popery and for Protestantism.
It will now be seen, that, even if these laws could
be supposed agreeable to those of Nature in these
particulars, on another and almost as strong a principle they are yet unjust, as being contrary to positive
compact, and the public faith most solemnly plighted. On the surrender of Limerick, and some other
Irish garrisons, in the war of the Revolution, the
Lords Justices of Ireland and the commander-inchief of the king's forces signed a capitulation with
the Irish, which was afterwards ratified by the king
himself by inspeximus under the great seal of England. It contains some public articles relative to the
whole body of the Roman Catholics in that kingdom,
and some with regard to the security of the greater
part of the inhabitants of five counties. What the
latter were, or in what manner they were observed, is
at this day of much less public concern. The former
are two,- the first and the ninth. The first is of
this tenor: --" The Roman Catholics of this kingdom
[Ireland] shall enjoy such privileges in the exercise of their religion as are consistent with the laws
of Ireland, or as they did enjoy in the reign of King
Charles the Second. And their Majesties, as soon as
affairs will permit them to summon a Parliament in
this kingdom, will endeavor to procure the said Roman Catholics such farther security in that particular as may preserve them from any disturbance upon the account of their said religion. " The ninth article is to this effect: -" The oath to be administered
to such Roman Catholics as submit to their Majesties'
? ? ? ? 346 TRACT ON THE POPERY LAWS.
government shall be the oath abovesaid, and no other," -- viz. , the oath of allegiance, made by act of Parliament in England, in the first year of their then
Majesties; as required by the second of the Articles of Limerick. Compare this latter article with
the penal laws, as they are stated in the Second
Chapter, and judge whether they seem to be the
public acts of the same power, and observe whether
other oaths are tendered to them, and under what
penalties. Compare the former with the same laws,
from the beginning to the end, and judge whether
the RQman Catholics have been preserved, agreeably
to the sense of the article, from any disturbance upon account of their religion, -or rather, whether on that account there is a single right of Nature or
benefit of society which has not been either totally
taken away or considerably impaired.
But it is said, that the legislature was not bound
by this article, as it has never been ratified in Parliament. I do admit that it never had that sanction, and that the Parliament was under no obligation to
ratify these articles by any express act of theirs.
But still I am at a loss how they came to be the less
valid, on the principles of our Constitution, by being without that sanction. They certainly bound the king and his successors. The words of the article
do this, or they do nothing; and so far as the crown
had a share in passing those acts, the public faith
was unquestionably broken. In Ireland such a breach
on the part of the crown was much more unpardonable in administration than it would have been here. They have in Ireland a way of preventing any bill
even from approaching the royal presence, in matters of far less importance than the honor and faith
? ? ? ? TRACT ON THE POPERY LAWS. 347
of the crown and the well-being of a great body of
the people. For, besides that they might have opposed the very first suggestion of it in the House of
Commons, it could not be framed into a bill without
the approbation of the Council in Ireland. It could
not be returned to them again without the approbation of the King and Council here. They might have
met it again in its second passage through that House
of Parliament in which it was originally suggested, as
well as in the other. If it had escaped them through
all these mazes, it was again to come before the Lord
Lieutenant, who might have sunk it by a refusal of
the royal assent. The Constitution of Ireland has
interposed all those checks to the passing of any
constitutional act, however insignificant in its own
nature. But did the administration in that reign
avail themselves of any one of those opportunities?
They never gave the act of the eleventh of Queen
Anne the least degree of opposition in any one stage
of its progress. What is rather the fact, many of the
queen's servants encouraged it, recommended it, were
in reality the true authors of its passing in Parliament, instead of recommending and using their utmost endeavor to establish a law directly opposite in its tendency, as they were bound to do by the express
letter of the very first article of the Treaty of Limerick. To say nothing further of the ministry, who in
this instance most shamefully betrayed the faith of
government, may it not be a matter of some degree
of doubt, whether the Parliament, who do not claim
a right of dissolving the force of moral obligation,
did not make themselves a party in this breach of
contract, by presenting a bill to the crown in direct
violation of those articles so solemnly and so recently
? ? ? ? 848 TRACT ON THE POPERY LAWS.
executed, which by the Constitution they had full
authority to execute?
It may be further objected, that, when the Irish
requested the ratification of Parliament to those articles, they did, in effect, themselves entertain a
doubt concerning their validity without such a ratification. To this I answer, that the collateral security was meant to bind the crown, and to hold it firm
to its engagements. They did not, therefore, call it
a perfecting of the security, but an additional security,
which it could not have been, if the first had been
void; for the Parliament could not bind itself more
than the crown had bound itself. And if all had
made but one security, neither of them could be
called additional with propriety or common sense.
But let us suppose that they did apprehend there
might have been something wanting in this security
without the sanction of Parliament. They were, however, evidently mistaken; and this surplusage of theirs
did not weaken the validity of the single contract,
upon the known principle of law, Non solent, quce
abundant, vitiare scripturas. For nothing is more
evident than that the crown was bound, and that no
act can be made without the royal assent. But the
Constitution will warrant us in going a great deal
further, and in affirming, that a treaty executed by
the crown, and contradictory of no preceding law, is
full as binding on the whole body of the nation as
if it had twenty times received the sanction of Parliament; because the very same Constitution which
has given to the Houses of Parliament their definite
authority has also left in the crown the trust of making peace, as a consequence, and much the best consequence, of the prerogative of making war. If the
? ? ? ? TRACT ON THE POPERY LAWS. 349
peace was ill made, my Lord Galmoy, Coningsby,
and Porter, who signed it, were responsible; because
they were subject to the community. But its own
contracts are not subject to it: it is subject to them;
and the compact of the king acting constitutionally
was the compact of the nation.
Observe what monstrous consequences would result from a contrary position.
A foreign enemy has entered, or a strong domestic one has arisen in the
nation. In such events the circumstances may be,
and often have been, such that a Parliament cannot
sit. This was precisely the case in that rebellion in
Ireland. It will be admitted also, that their power
may be so great as to make it very prudent to treat
with themn, in order to save effusion of blood, perhaps
to save the nation. Now could such a treaty be at
all made, if your enemies, or rebels, were fully persuaded, that, in these times of confusion, there was no authority in the state which could hold out to
them an inviolable pledge for their future security,
but that there lurked in the Constitution a dormant,
but irresistible power, who would not think itself
bound by the ordinary subsisting and contracting
authority, but might rescind its acts and obligations
at pleasure? This would be a doctrine made to perpetuate and exasperate war; and on that principle it directly impugns the law of nations, which is built
upon this principle, that war should be softened as
much as possible, and that it should cease as soon as
possible, between contending parties and communities. The king has a power to pardon individuals.
If the king holds out his faith to a robber, to come in
on a promise of pardon, of life and estate, and, in all
respects, of a full indemnity, shall the Parliament say
? ? ? ? 350 TRACT ON THE POPERY LAWS.
that he must nevertheless be executed, that his estate
must be forfeited, or that he shall be abridged of any
of the privileges which he before held as a subject?
Nobody will affirm it. In such a case, the breach of
faith would not only be on the part of the king who
assented to such an act, but on the part of the Parliament who made it. As. the king represents the
whole contracting capacity of the nation, so far as his
prerogative (unlimited, as I said before, by any precedent law) can extend, he acts as the national procurator on all such occasions. What is true of a robber is true of a rebel; and what isetrue of one robber or rebel is as true, and it is a much more important
truth, of one hundred thousand.
To urge this part of the argument further is, indeed, I fear, not necessary, for two reasons: first,
that it seems tolerably evident in itself; and next,
that there is but too much ground to apprehend that
the actual ratification of Parliament would, in the
then temper of parties, have proved but a very slight
and trivial security. Of this there is a very strong
example in the history of those very articles: for,
though the Parliament omitted in the reign of King
William to ratify the first and most general of them,
they did actually confirm the second and more limited, that which related to the security of the inhabitants of those five counties which were in arms when
the treaty was made.
CHAPTER IV.
IN the foregoing book we considered these laws
in a very simple point of view, and in a very general
? ? ? ? TRACT ON THE POPERY LAWS. 351
one, - merely as a system of hardship imposed on
the body of the community; and from thence, and
from some other arguments, inferred the general injustice of such a procedure. II1 this we shall be
obliged to be more minute; and the matter will become more complex as we undertake to demonstrate
the mischievous and impolitic consequences which the
particular mode of this oppressive system, and the
instruments which it employs, operating, as we said,
on this extensive object, produce on the national prosperity, quiet, and security.
The stock of materials by which any nation is rendered flourishing and prosperous are its industry, its
knowledge or skill, its morals, its execution of justice,
its courage, and the national union in directing these
powers to one point, and making them all centre in
the public benefit. Other than these, I do not know
and scarcely can conceive any means by which a
community may flourish.
If we show that these penal laws of Ireland destroy
not one only, but every one, of these materials of public prosperity, it will not be difficult to perceive that
Great Britain, whilst they subsist, never can draw
from that country all the advantages to which the
bounty of Nature has entitled it.
To begin with the first great instrument of national happiness and strength, its industry: I must observe, that, although these penal laws do, indeed, inflict many hardships on those who are obnoxious to them, yet their chief, their most extensive, and most
certain operation is upon property. Those civil constitutions which promote industry are such as facilitate the acquisition, secure the holding, enable the
fixing, and suffer the alienation of property. Every
? ? ? ? 352 TRACT ON THE POPERY LAWS.
law which obstructs it in any part of this distribution
is, in proportion to the force and extent of the obstruction, a discouragement to industry. For a law
against property is a law against industry, - the latter having always the former, and nothing else, for
its object. Now as to the acqurisition of landed property, which is the foundation and support of all the
other kinds, the laws have disabled three fourths of
the inhabitants of Ireland from acquiring any estate
of inheritance for life or years, or any charge whatsoever on which two thirds of the improved yearly
value is not reserved for thirty years.
This confinement of landed property to one set of
hands, and preventing its free circulation through the
community, is a most leading article of ill policy; because it is one of the most capital discouragements
to all that industry which may be employed on the
lasting improvement of the soil, or is any way conversant about land. A tenure of thirty years is evidently no tenure upon which to build, to plant, to raise inclosures, to change the nature of the ground,
to make any new experiment which might improve
agriculture, or to do anything more than what may
answer the immediate and momentary calls of rent
to the landlord, and leave subsistence to the tenant
and his family. The desire of acquisition is always
a passion of long views. Confine a man to momentary possession, and you at once cut off that laudable
avarice which every wise state has cherished as one
of the first principles of its greatness. Allow a man
but a temporary possession, lay it down as a maxim
that he never can have any other, and you immediately and infallibly turn him to temporary enjoyments: and these enjoyments are never the pleasures
? ? ? ? TRACT ON THE POPERY LAWS. 353
of labor and free industry, whose quality it is to
famish the present hours and squander all upon
prospect and filturity; they are, on the contrary,
those of a thoughtless, loitering, and dissipated life.
The people must be inevitably disposed to such pernicious habits, merely from the short duration of
their tenure which the law has allowed. But it is
not enough that industry is checked by the confinement of its views; it is further discouraged by thc
limitation of its own direct object, profit. This is a
regulation extremely worthy of our attention, as it is
not a consequential, but a direct discouragement to
melioration, --as directly as if the law had said in
express terms, " Thou shalt not improve. "
But we have an additional argument to demonstrate the ill policy of denying the occupiers of land
any solid property in it. Ireland is a country wholly
unplanted. The farms have neither dwelling-houses nor good offices; nor are the lands, almost anywhere, provided with fences and communications: in a word, in a very unimproved state. The land-owner
there never takes upon him, as it is usual in this
kingdom, to supply all these conveniences, and to set
down his tenant in what may be called a completely
furnished farm. If the tenant will not do it, it is
never done. This circumstance shows how miserably
and peculiarly impolitic it has been in Ireland to tie
down the body of the tenantry to short and unprofitable tenures. A finished and furnished house will
be taken for any term, however short: if the repair
lies on the owner, the shorter the better. But no
one will take one not only unfurnished, but half
built, but upon a term which, on calculation, will answer with profit all his charges. It is on this princiVOL. VI. 23
? ? ? ? 354 TRACT ON THE POPERY LAWS.
pie that the Romans established their empphyteusis, or
fee-farm. For though they extended the ordinary
term of their location only to nine years, yet they
encouraged a more permanent letting to farm with
the condition of improvement, as well as of annual
payment, on the part of the tenant, where the land
had lain rough and neglected, -- and therefore invented this species of engrafted holding, in the later
times, when property came to be worse distributed
by falling into a few hands.
This denial of landed property to the gross of the
people has this further evil effect in preventing the
improvement of land, that it prevents any of the property acquired in trade to be regorged, as it were, upon the land. They must have observed very little, who have not remarked the bold and liberal spirit of
improvement which persons bred to trade have often
exerted on their land-purchases: that they usually
come to them with a more abundant command of
ready money than most landed men possess; and
that they have in general a much better idea, by
long habits of calculative dealings, of the propriety
of expending in order to acquire. Besides, such men
often bring their spirit of commerce into their estates
with them, and make manufactures take a root, where
the mere landed gentry had perhaps no capital, perhaps no inclination, and, most frequently, not sufficient knowledge, to effect anything of the kind. By these means, what beautiful and useful spots have
there not been made about trading and manufacturing towns, and how has agriculture had reason to bless
that happy alliance with commerce! and how miserable must that nation be, whose frame of polity has
disjoined the landing ar-d the trading interests!
? ? ? ? TRACT ON THE POPERY LAWS. 355
The great prop of this whole system is not pretended to be its justice or its utility, but the supposed
danger to the state, which gave rise to it originally,
and which, they apprehend, would return, if this
system were overturned. Whilst, say they, the Papists of this kingdom were possessed of landed property, and of the influence consequent to such property, their allegiance to the the crown of Great Britain was ever insecure, the public peace was ever liable to
be broken, and Protestants never could be a moment
secure either of their properties or of their lives.
Indulgence only made them arrogant, and power
daring; confidence only excited and enabled them
to exert their inherent treachery; and the times
which they generally selected for their most wicked
and desperate rebellions were those in which they
enjoyed the greatest ease and the most perfect tranquillity.
Such are the arguments that are used, both publicly and privately, in every discussion upon this
point. They are generally full of passion and of
error, and built upon facts which in themselves are
most false. It cannot, I confess, be denied, that those
miserable performances which go about under the
names of Histories of Ireland do, indeed, represent
those events after this manner; and they would
persuade us, contrary to the known order of Nature, that indulgence and moderation in governors
is the natural incitement in subjects to rebel. But
there is an interior history of Ireland, the genuine
voice of its records and monuments, which speaks
a very different language from these histories, from
Temple and from Clarendon: these restore Nature
to its just rights, and policy to its proper order. For
? ? ? ? 356 TRACT ON THE POPERY LAWS.
they even now show to those who have been at the
pains to examine them, and they may show one day
to all the world, thatethese rebellions were not produced by toleration, but by persecution, -- that they arose not from just and mild government, but from
the most unparalleled oppression. These records will
be far from giving the least countenance to a doctrine
so repugnant to humanity and good sense as that the
security of any establishment, civil or religious, can
ever depend upon the misery of those who live under
it, or that its danger can arise from their quiet and
prosperity. God forbid that the history of this or
any country should give such encouragement to the
folly or vices of those who govern! If it can be
shown that the great rebellions of Ireland have
arisen from attempts to reduce the natives to the
state to which they are now reduced, it will show
that an attempt to continue them in that state will
rather be disadvantageous to the public peace than
any kind of security to it. These things have in
some measure begun to appear already; and as far
as regards the argument drawn from former rebellions, it will fall readily to the ground. But, for my part, I think the real danger to every state is, to render its subjects justly discontented; nor is there in politics or science any more effectual secret for their
security than to establish in their people a firm opinion that no change can be for their advantage. It is true that bigotry and fanaticism may for a time draw
great multitudes of people from a knowledge of their
true and substantial interest. But upon this I have
to remark three things. First, that such a temper
can never become universal, or last for a long time
The principle of religion is seldom lasting; the ma:
? ? ? ? TRACT ON THE POPERY LAWS. 357
jority of men are in no persuasion bigots; they are
not willing to sacrifice, on every vain imagination that
superstition or enthusiasm holds forth, or that even
zeal and piety recommend, the certain possession of
their temporal happiness. And if such a spirit has
been at any time roused in a society, after it has had
its paroxysm it commonly subsides and is quiet, and
is even the weaker for the violence of its first exertion: security and ease are its mortal enemies. But, secondly, if anything can tend to revive and keep it
up, it is to keep alive the passions of men by ill usage.
This is enough to irritate even those who have not a
spark of bigotry in their constitution to the most desperate enterprises; it certainly will inflame, darken, and render more dangerous the spirit of bigotry in
those who are possessed by it. Lastly, by rooting out
any sect, you are never secure against the effects of
fanaticism; it may arise on the side of the most favored opinions; and many are the instances wherein the established religion of a state has grown ferocious and turned upon its keeper, and has often
torn to pieces the civil establishment that had cherished it, and which it was designed to support: France, - England,- Holland.
But there may be danger of wishing a change,
even where no religious motive can operate; and
every enemy to such a state comes as a friend to
the subject; and where other countries are under
terror, they begin to hope.
This argument ad verecundiam has as much force
as any such have. But I think it fares but very indifferently with those who make use of it; for they would get but little to be proved abettors of tyranny
at the expense of putting me to an inconvenient ac
? ? ? ? 358 TRACT ON THE POPERY LAWS.
knowledgment. For if I were to confess that there
are circumstances in which it would be better to
establish such a religion.
With regard to the Pope's interest. This foreign
chief of their religion cannot be more formidable to
us than to other Protestant countries. To conquer
that country for himself is a wild chimera; to encourage revolt in favor of foreign princes is an exploded idea in the politics of that court. Perhaps it would be full as dangerous to have the people under
the conduct of factious pastors of their own as under
a foreign ecclesiastical court.
In the second year of the reign of Queen Elizabeth
were enacted several limitations in the acquisition or
the retaining of property, which had, so far as regarded any general principles, hitherto remained untouched under all changes.
These bills met no opposition either in the Irish
Parliament or in the English Council, except from
private agents, who were little attended to; and they
passed into laws with the highest and most general
applauses, as all such things are in the beginning,
not as a system of persecution, but as masterpieces
of the most subtle and refined politics. And to say
the truth, these laws, at first view, have rather an
appearance of a. plan of vexatious litigation and
crooked law-chicanery than of a direct and sanguinary attack upon the rights of private conscience:
because they did not affect life, at least with regard
to the laity; and making the Catholic opinions rather
the. subject of civil regulations than of criminal pros
? ? ? ? TRACT ON THE POPERY LAWS. 359
ecutions, to those who are not lawyers and read these
laws they only appear to be a species of jargon. For
the execution of criminal law has always a certain
appearance of violence. Being exercised directly on
the persons of the supposed offenders, and commonly
executed in the face of the public, such executions
are apt to excite sentiments of pity for the sufferers,
and indignation against those who are employed in
such cruelties, -being seen as single acts of cruelty,
rather than as ill general principles of government.
But the operation of the laws in question being such
as common feeling brings home to every man's bosom,
they operate in a sort of comparative silence and obscurity; and though their cruelty is exceedingly great, it is never seen in a single exertion, and always escapes commiseration, being scarce known, except to those who view them in a general, which is always a
cold and phlegmatic light. The first of these laws
being made with so general a satisfaction, as the
chief governors found that such things were extremely acceptable to the leading people in that
country, they were willing enough to gratify them
with the ruin of their fellow-citizens; they were not
sorry to divert their attention from other inquiries,
and to keep them fixed to this, as if this had been
the only real object of their national politics; and
for many years there was no speech from the throne
which did not with great appearance of seriousness
recommend the passing of such laws, and scarce a
session went over without in effect passing some of
them, until they have by degrees grown to be the
most considerable head in the Irish statute-book. At
the same time giving a temporary and occasional
mitigation to the severity of some of the harshest
? ? ? ? 360 TRACT ON THE POPERY LAWS.
of those laws, they appeared in some sort the protectors of those whom they were in reality destroying by the establishment of general constitutions against
them. At length, however, the policy of this expedient is worn out; the passions of men are cooled; those laws begin to disclose themselves, and to produce effects very different from those which were promised in making them: for crooked counsels are
ever unwise; and nothing canl be more absurd and
dangerous than to tamper with the natural foundations of society, in hopes of keeping it up by certain contrivances.
0 I. . 0 0
? ? ? ? A
LETTER
TO
WILLIAM SMITH, ESQ. ,
ON THE SUBJECT OF CATHOLIC EMANCIPATION. JANUARY 29, I 795.
? ? ? ? LETTER. *
M Y DEAR SIR, -- Your letter is, to myself, inh
nitely obliging: with regard to you, I can find
no fault with it, except that of a tone of humility and
disqualification, which neither your rank, nor the
place you are in, nor the profession you belong to,
nor your very extraordinary learning and talents,
will in propriety demand or perhaps admit. These
dispositions will be still less proper, if you should
feel them in the extent your modesty leads you to
express them. You have certainly given by far too
strong a proof of self-diffidence by asking the opinion
of a man circumstanced as I am, on the important
subject of your letter. You are far more capable
of forming just conceptions upon it than I can be.
However, since you are pleased to command me to
lay before you my thoughts, as materials upon which
your better judgment may operate, I shall obey you,
and submit them, with great deference, to your melioration or rejection.
But first permit me to put myself in the right. I
owe you an answer to your former letter. It did not
desire one, but it deserved it. If not for an answer,
it called for an acknowledgment. It was a new favor; and, indeed, I should be worse than insensible,
* William Smith, Esq. , to whom this Letter is addressed, was then
a member of the Irish Parliament: he is now (1812) one of the Barons of the Court of Exchequer in Ireland.
? ? ? ? 864 LETTER TO WILLIAM SMITH, ESQ. ,
if I did not consider the honors you have heaped
upon me with no sparing hand with becoming gratitude. But your letter arrived to me at a time when the closing of my long and last business in life, a business extremely complex, and full of difficulties and vexatious of all sorts, occupied me in a manner which
those who have not seen the interior as well as exterior of it cannot easily imagine. I confess that
in the crisis of that rude conflict I neglected many
things that well deserved my best attention, - none
that deserved it better, or have caused me more regret in the neglect, thani your letter. The instant that business was over, and the House had passed its
judgment on the conduct of the managers, I lost no
time to execute what for years I had resolved on: it
was, to quit my public station, and to seek that tranquillity, in my very advanced age, to which, after
a very tempestuous life, I thought myself entitled.
But God has thought fit (and I unfeignedly acknowledge His justice) to dispose of things otherwise. So heavy a calamity has fallen upon me as to disable me
for business and to disqualify me for repose. The
existence I have I do not know that I can call life.
Accordingly, I do not meddle with any one measure
of government, though, for what reasons I know not,
you seem to suppose me deeply in the secret of affairs. I only know, so far as your side of the water
is concerned, that your present excellent Lord Lieutenant (the best man in every relation that I have ever been acquainted with) has perfectly pure intentions with regard to Ireland, and of course that lie wishes cordially well to those who form the great
mass of its inhabitants, and who, as they are well
or ill manlaged, must fborm anll important part of its
? ? ? ? ON CATHOLIC EMANCIPATION. 365
strength or weakness. If with regard to that great
object he has carried over ally ready-made system, I
assure you it is perfectly unknown to me: I am very
much retired from the world, and live in much ignorance. This, I hope, will form my humble apology,
if I should err in the notions I entertain of the question which is soon to become the subject of youi
deliberations. At the same time accept it as an
apology for my neglects.
You need make no apology for your attachment
to the religious description you belong to. It proves
(as in you it is. sincere) your attachment to the great
points in which the leading divisions are agreed, when
the lesser, in which they differ, are so dear to you.
I shall never call any religious opinions, which appear important to serious and pious minds, things of
no consideration. Nothing is so fatal to religion as
indifference, which is, at least, half infidelity. As
long as men hold charity and justice to be essential
integral parts of religion, there can be little danger
from a strong attachment to particular tenets in faith.
This I am perfectly sure is your case; but I am not
equally sure that either zeal for the tenets of faith,
or the smallest degree of charity or justice, have
much influenced the gentlemen who, under pretexts
*of zeal, have resisted the enfranchisement of their
country. My dear son, who was a person of discernment, as well as clear and acute in his expressions, said, in a letter of his which I have seen, " that, in order to grace their cause, and to draw
some respect to their persons, they pretend to be
bigots. " But here, I take it, we have not much to
do with the theological tenets on the one side of
the question or the other.
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.
? ? ? ? 336 TRACT ON THE POPERY LAWS.
CHAPTER III.
PART II.
THE second head upon which I propose to consider
those statutes with regard to their object, and which
is the next in importance to the magnitude, and of
almost equal concern in the inquiry into the justice
of these laws, is its possession. It is proper to recollect that this religion, which is so persecuted in its members; is the old religion of the country, and the
once established religion of the state, - the very same
which had for centuries received the countenance and
sanction of the laws, and from which it would at one
time have been highly penal to have dissented. In
proportion as mankind has become enlightened, the
idea of religious persecution, under any circumstances, has been almost universally exploded by all good and thinking men. The only faint shadow of
difficulty which remains is concerning the introduction of new opinions. Experience has shown, that, if it has been favorable to the cause of truth, it has
not been always conducive to the peace of society.
Though a new religious sect should even be totally
free in itself from any tumultuous and disorderly
zeal, which, however, is rarely the case, it has a tendency to create a resistance from the establishment in possession, productive of great disorders, and thus
becomes, innocently indeed, but yet very certainly,
the cause of the bitterest dissensions in the commonwealth. To a mind not thoroughly saturated with the tolerating maxims of the Gospel, a preventive
persecution, on such principles, might come recommended by strong, and, apparently, no immoral mo
? ? ? ? TRACT ON THE POPERY LAWS. 337
tives of policy, whilst yet the contagion was recent,
and had laid hold but on a few persons. The
truth is, these politics are rotten and hollow at bottom, as all that are founded upon any however minute a degree of positive injustice must ever be. But they are specious, and sufficiently so to delude a man
of sense and of integrity. But it is quite otherwis(
with the attempt to eradicate by violence a widespreading and established religious opinion. If the
people are ill an error, to inform them is not only
fair, but charitable; to drive them is a strain of the
most manifest injustice. If not the right, the presumption, at least, is ever on the side of possession. .
Are they mistaken? if it does not fully justify them,
it is a great alleviation of guilt, which may be mingled with their misfortune, that the error is none of
their forging,- that they received it on as good a
footing as they can receive your laws and your
legislative authority, because it was handed down
to them from their ancestors. The opinion may be
erroneous, but the principle is undoubtedly right;
and you punish them for acting upon a principle
which of all others is perhaps the most necessary
for preserving society, an implicit admiration and
adherence to the establishments of their forefathers.
If, indeed, the legislative authority was on -all
hands admitted to be the ground of religious persuasion, I should readily allow that dissent would
be rebellion. In this case it would make no difference whether the opinion was sucked in with the
milk or imbibed yesterday; because the same legislative authority which had settled could destroy it
with all the power of a creator over his creature.
But this doctrine is universally disowned, and for a.
VOL. VI 22
? ? ? ? 338 TRACT ON THE POPERY LAWS.
very plain reason. Religion, to have any force on
men's understandings, indeed to exist at all, must
be supposed paramount to laws, and independent
for its substance upon any human institution, - else
it would hle the absurdest thing in the world, an acknowledged cheat. Religion, therefore, is not believed because the laws have established it, but it is established because the leading part of the communlity have previously believed it to be true. As no
water can rise higher than its spring, no establish
ment can have more authority than it derives from
its principle; and the power of the government can
with no appearance of reason go further coercively
than to bind and hold down those who have once
consented to their opinions. The consent is the origin of the whole. If they attempt to proceed further, they disown the foundation upon which their own establishment was built, and they claim a religious assent upon mere human authority, which has
been just now shown to be absurd and preposterous,
and which they in fact confess to be so.
However, we are warranted to go thus far. The
people often actually do (and perhaps they cannot
in general do better) take their religion, not on the
*coercive, which is impossible, but on the influencing
authority of their governors, as wise and informed
men. But if they once take a religion on the word;of the state, they cannot in common sense do so a
second time, unless they have some concurrent reason for it. The prejudice in favor of your wisdom
is shook by your change. You confess that you have
been wrong, and yet you would pretend to dictate
by your sole authority; whereas you disengage the
mind by embarrassing it. For why should I prefer
? ? ? ? TRACT ON THE POPERY LAWS. 339
your opinion of to-day to your persuasion of yesterday? If we must resort to prepossessions for the ground of opinion, it is in the nature of man rather
to defer to the wisdom of times past, whose weakness is not before his eyes, than to the present, of whose imbecility he has daily experience. Veneration of antiquity is congenial to the human mind. When, therefore, an establishment would persecute
an opinion in possession, it sets against it all the powerful prejudices of human nature. It even sets its own authority, when it is of most weight, against
itself in that very circumstance in which it must necessarily have the least; and it opposes the stable prejudice of time against a new opinion founded on
mutability: a consideration that ibust render compulsion in such a case the more grievous, as there is no security, that, when the mind is settled in the new
opinion, it may not be obliged to give place to one
that is still newer, or even to a return of the old.
But when an ancient establishment begins early to
persecute an innovation, it stands upon quite other
grounds, and it has all the prejudices and presumptions on its side. It puts its own authority, not only
of compulsion, but prepossession, the veneration of
past age, as well as the activity of the present time,
against the opinion only of a private man or set of
men. If there be no reason, there is at least some
consistency in its proceedings. Commanding to constancy, it does nothing but that of which it sets an example itself. But an opinion at once new and persecuting is a monster; because, in the very instant
in which it takes a liberty of change, it does not
leave to you even a liberty of perseverance.
Is, then, no improvement to be brought into soci
? ? ? ? 340 TRACT ON THE POPERY LAWS.
ety? Undoubtedly; but not by compulsion, -- but by
encouragement, - but by countenance, favor, privileges, which are powerful, and are lawful instruments.
The coercive authority of the state is limited to what
is necessary for its existence. To this belongs the
whole order of criminal law. It considers as crimes
(that is, the object of punishment) trespasses against
those rules for which society was instituted. The
law punishes delinquents, not because they are not
good men, but because they are intolerably wicked.
It does bear, and must, with the vices and the follies
of men, until they actually strike at the root of
order. This it does in things actually moral. In
all matters of speculative improvement the case is
stronger, even wherb the matter is properly of human
cognizance. But to consider an averseness to improvement, the not arriving at perfection, as a crime,
is against all tolerably correct jurisprudence; for, if
the resistance to improvement should be great and
any way general, they would in effect give up the necessary and substantial part in favor of the perfection and the finishing.
But, say the abettors of our penal laws, this old
possessed superstition is such in its principles, that
society, on its general principles, cannot subsist along
with it. Could a man think such an objection possible, if he had not actually heard it made, -- an objection contradicted, not by hypothetical reasonings, but the clear evidence of the most decisive facts?
Society not only exists, but flourishes at this hour,
with this superstition, in many countries, under every
form of government, - in some established, in some
tblerated, in others upon an equal footing. And was
there no civil society at all in these kingdoms before
? ? ? ? TRACT ON THE POPERY LAWS. 341
the Reformation? To say it was not as well conllstituted as it ought to be is saying nothing at all to the
purpose; for that assertion evidently regards improvement, not existence. It certainly did then exist;
and it as certainly then was at least as much to the
advantage of a very great part of society as what we
have brought in the place of it: which is, indeed, a
great blessing to those who have profited of the
change; but to all the rest, as we have wrought,
that is, by blending general persecution with partial
reformation, it is the very reverse. We found the
people heretics and idolaters; we have, by way of
improving their condition, rendered them slaves and
beggars: they remain in all the misfortune of their
old errors, and all the superadded misery of their recent punishment. They were happy enough, in their
opinion at least, before the change; what benefits
society then had, they partook of them all. They
are now excluded from those benefits; and, so far
as civil society comprehends them, and as we have
managed the matter, our persecutions are so far from
being necessary to its existence, that our very reformation is made in a degree noxious. If this be
improvement, truly I know not what can be called
a depravation of society.
But as those who argue in this manner are perpetually shifting the question, having begun with objecting, in order to give a fair and public color to their scheme, to a toleration of those opinions as subversive
of society in general, they will surely end by abandoning the broad part of the argument, and attempting to show that a toleration of them is inconsistent with the established government among us. Now,
though this position be in reality as untenable as the
? ? ? ? 342 TRACT ON THE POPERY LAWS.
other, it is not altogether such an absurdity on the
face of it. All I shall here observe is, that those who
lay it down little consider what a wound they are
giving to that establishment for which they pretend
so much zeal. However, as this is a consideration,
not of general justice, but of particular and national
policy, and as I have reserved a place expressly,
where it will undergo a thorough discussion, I shall
not here embarrass myself with it, -- being resolved
to preserve all the order in my power, in the examination of this important, melancholy subject.
However, before we pass from this point concerning possession, it will be a relaxation of the mind,
not wholly foreign to our purpose, to take a short
review of the extraordinary policy which has been
held with regard to religion in that kingdom, from
the time our ancestors took possession of it. The
most able antiquaries are of opinion, and Archbishop Usher, whom I reckon amongst the first of them,
has, I think, shown, that a religion not very remote
from the present Protestant persuasion was that of
the Irish before the union of that kingdom to the
crown of England. If this was not directly the fact,
this at least seems very probable, that Papal authority was much lower in Ireland than in other countries. This union was made under the authority of an arbitrary grant of Pope Adrian, in order that the
Church of Ireland should be reduced to the same servitude with those that were nearer to his see. It is
not very wonderful that an ambitious monarch should
make use of any pretence in his way to so considerable an object. What is extraordinary is, that for a
very long time, even quite down to the Reformation,
and in their most solemn acts, the kings of England
? ? ? ? TRACT ON THE POPERY LAWS. 343
founded their title wholly on this grant: they called
for obedience from the people of Ireland, not on principles of subjection, but as vassals and mesne lords between them and the Popes; and they omitted no
measure of force or policy to establish that Papal authority, with all the distinguishing articles of religion connected with it, and to make it take deep root in
the minds of the people. Not to crowd instances ullnecessary, I shall select two, one of which is ill print, the other on record, - the one a treaty, the other all
act of Parliament. The first is the submission of the
Irish chiefs to Richard the Second, mentioned by Sir
John Davies. In this pact they bind themselves for
the future to preserve peace and allegiance to the
kings of England, under certain pecuniary penalties.
But what is remarkable, these fines were all covenanted to be paid into the Apostolical Chamber, supposing the Pope as the superior power, whose
peace was broken and whose majesty was violated
in disobeying his governor. By this time, so far as
regarded England, the kings had extremely abridged
the Papal power in many material particulars: they
had passed the Statute of Provisors, the Statute of
Prcemunire, -- and, indeed, struck out of the Papal
authority all things, at least, that seemed to infringe
on their temporal independence. In Ireland, however, their proceeding was directly the reverse: there they thought it expedient to exalt it at least as high
as ever: for, so late as the reign of Edward the
Fourth, the following short, but very explicit, act
of Parliament was passed: --
? ? ? ? 344 TRACT ON THE POPERY LAWS.
IV. ED. Cap. 3.
" An act, whereby letters patent of pardon from the
king to those that sue to Rome for certain benefices is void. Rot. Parl.
"Item, At the request of the commons, it is ordeyned and established, by authority of the said Parliament, that all maner letters patents of the king, of pardons or pardon granted by the king, or hereafter to be granted, to any provisor that claim any
title by the bulls of the Pope to any maner benefices,
where, at the time of the impetrating of the said bulls
of provision, the benefice is filll of an incumbent, that
then the said letters patents of pardon or pardons be
void in law and of none effect. "
When, by every expedient of force and policy, by
a war of some centuries, by extirpating a number of
the old, and by bringing in a number of new people
full of those opinions and intending to propagate
them, they had fully compassed their object, they
suddenly took another turn, - commenced an opposite persecution, made heavy laws, carried on mighty
wars, inflicted and suffered the worst evils, extirpated
the mass of the old, brought in new inhabitants; and
they continue at this day an oppressive system, and
may for four hundred years to come, to eradicate
opinions which by the same violent means they had
been four hundred years endeavoring by every means
to establish. They compelled the people to submit,
by the forfeiture of all their civil rights, to the Pope's,authority, in its most extravagant and unbounded
sense, as a giver of kingdoms; and now they refuise
even to tolerate them in the most moderate and chas
? ? ? ? TRACT ON THE POPERY LAWS. 345
tised sentiments concerning it. No country, I believe, since the world began, has suffered so much
on account of religion, or has been so variously harassed both for Popery and for Protestantism.
It will now be seen, that, even if these laws could
be supposed agreeable to those of Nature in these
particulars, on another and almost as strong a principle they are yet unjust, as being contrary to positive
compact, and the public faith most solemnly plighted. On the surrender of Limerick, and some other
Irish garrisons, in the war of the Revolution, the
Lords Justices of Ireland and the commander-inchief of the king's forces signed a capitulation with
the Irish, which was afterwards ratified by the king
himself by inspeximus under the great seal of England. It contains some public articles relative to the
whole body of the Roman Catholics in that kingdom,
and some with regard to the security of the greater
part of the inhabitants of five counties. What the
latter were, or in what manner they were observed, is
at this day of much less public concern. The former
are two,- the first and the ninth. The first is of
this tenor: --" The Roman Catholics of this kingdom
[Ireland] shall enjoy such privileges in the exercise of their religion as are consistent with the laws
of Ireland, or as they did enjoy in the reign of King
Charles the Second. And their Majesties, as soon as
affairs will permit them to summon a Parliament in
this kingdom, will endeavor to procure the said Roman Catholics such farther security in that particular as may preserve them from any disturbance upon the account of their said religion. " The ninth article is to this effect: -" The oath to be administered
to such Roman Catholics as submit to their Majesties'
? ? ? ? 346 TRACT ON THE POPERY LAWS.
government shall be the oath abovesaid, and no other," -- viz. , the oath of allegiance, made by act of Parliament in England, in the first year of their then
Majesties; as required by the second of the Articles of Limerick. Compare this latter article with
the penal laws, as they are stated in the Second
Chapter, and judge whether they seem to be the
public acts of the same power, and observe whether
other oaths are tendered to them, and under what
penalties. Compare the former with the same laws,
from the beginning to the end, and judge whether
the RQman Catholics have been preserved, agreeably
to the sense of the article, from any disturbance upon account of their religion, -or rather, whether on that account there is a single right of Nature or
benefit of society which has not been either totally
taken away or considerably impaired.
But it is said, that the legislature was not bound
by this article, as it has never been ratified in Parliament. I do admit that it never had that sanction, and that the Parliament was under no obligation to
ratify these articles by any express act of theirs.
But still I am at a loss how they came to be the less
valid, on the principles of our Constitution, by being without that sanction. They certainly bound the king and his successors. The words of the article
do this, or they do nothing; and so far as the crown
had a share in passing those acts, the public faith
was unquestionably broken. In Ireland such a breach
on the part of the crown was much more unpardonable in administration than it would have been here. They have in Ireland a way of preventing any bill
even from approaching the royal presence, in matters of far less importance than the honor and faith
? ? ? ? TRACT ON THE POPERY LAWS. 347
of the crown and the well-being of a great body of
the people. For, besides that they might have opposed the very first suggestion of it in the House of
Commons, it could not be framed into a bill without
the approbation of the Council in Ireland. It could
not be returned to them again without the approbation of the King and Council here. They might have
met it again in its second passage through that House
of Parliament in which it was originally suggested, as
well as in the other. If it had escaped them through
all these mazes, it was again to come before the Lord
Lieutenant, who might have sunk it by a refusal of
the royal assent. The Constitution of Ireland has
interposed all those checks to the passing of any
constitutional act, however insignificant in its own
nature. But did the administration in that reign
avail themselves of any one of those opportunities?
They never gave the act of the eleventh of Queen
Anne the least degree of opposition in any one stage
of its progress. What is rather the fact, many of the
queen's servants encouraged it, recommended it, were
in reality the true authors of its passing in Parliament, instead of recommending and using their utmost endeavor to establish a law directly opposite in its tendency, as they were bound to do by the express
letter of the very first article of the Treaty of Limerick. To say nothing further of the ministry, who in
this instance most shamefully betrayed the faith of
government, may it not be a matter of some degree
of doubt, whether the Parliament, who do not claim
a right of dissolving the force of moral obligation,
did not make themselves a party in this breach of
contract, by presenting a bill to the crown in direct
violation of those articles so solemnly and so recently
? ? ? ? 848 TRACT ON THE POPERY LAWS.
executed, which by the Constitution they had full
authority to execute?
It may be further objected, that, when the Irish
requested the ratification of Parliament to those articles, they did, in effect, themselves entertain a
doubt concerning their validity without such a ratification. To this I answer, that the collateral security was meant to bind the crown, and to hold it firm
to its engagements. They did not, therefore, call it
a perfecting of the security, but an additional security,
which it could not have been, if the first had been
void; for the Parliament could not bind itself more
than the crown had bound itself. And if all had
made but one security, neither of them could be
called additional with propriety or common sense.
But let us suppose that they did apprehend there
might have been something wanting in this security
without the sanction of Parliament. They were, however, evidently mistaken; and this surplusage of theirs
did not weaken the validity of the single contract,
upon the known principle of law, Non solent, quce
abundant, vitiare scripturas. For nothing is more
evident than that the crown was bound, and that no
act can be made without the royal assent. But the
Constitution will warrant us in going a great deal
further, and in affirming, that a treaty executed by
the crown, and contradictory of no preceding law, is
full as binding on the whole body of the nation as
if it had twenty times received the sanction of Parliament; because the very same Constitution which
has given to the Houses of Parliament their definite
authority has also left in the crown the trust of making peace, as a consequence, and much the best consequence, of the prerogative of making war. If the
? ? ? ? TRACT ON THE POPERY LAWS. 349
peace was ill made, my Lord Galmoy, Coningsby,
and Porter, who signed it, were responsible; because
they were subject to the community. But its own
contracts are not subject to it: it is subject to them;
and the compact of the king acting constitutionally
was the compact of the nation.
Observe what monstrous consequences would result from a contrary position.
A foreign enemy has entered, or a strong domestic one has arisen in the
nation. In such events the circumstances may be,
and often have been, such that a Parliament cannot
sit. This was precisely the case in that rebellion in
Ireland. It will be admitted also, that their power
may be so great as to make it very prudent to treat
with themn, in order to save effusion of blood, perhaps
to save the nation. Now could such a treaty be at
all made, if your enemies, or rebels, were fully persuaded, that, in these times of confusion, there was no authority in the state which could hold out to
them an inviolable pledge for their future security,
but that there lurked in the Constitution a dormant,
but irresistible power, who would not think itself
bound by the ordinary subsisting and contracting
authority, but might rescind its acts and obligations
at pleasure? This would be a doctrine made to perpetuate and exasperate war; and on that principle it directly impugns the law of nations, which is built
upon this principle, that war should be softened as
much as possible, and that it should cease as soon as
possible, between contending parties and communities. The king has a power to pardon individuals.
If the king holds out his faith to a robber, to come in
on a promise of pardon, of life and estate, and, in all
respects, of a full indemnity, shall the Parliament say
? ? ? ? 350 TRACT ON THE POPERY LAWS.
that he must nevertheless be executed, that his estate
must be forfeited, or that he shall be abridged of any
of the privileges which he before held as a subject?
Nobody will affirm it. In such a case, the breach of
faith would not only be on the part of the king who
assented to such an act, but on the part of the Parliament who made it. As. the king represents the
whole contracting capacity of the nation, so far as his
prerogative (unlimited, as I said before, by any precedent law) can extend, he acts as the national procurator on all such occasions. What is true of a robber is true of a rebel; and what isetrue of one robber or rebel is as true, and it is a much more important
truth, of one hundred thousand.
To urge this part of the argument further is, indeed, I fear, not necessary, for two reasons: first,
that it seems tolerably evident in itself; and next,
that there is but too much ground to apprehend that
the actual ratification of Parliament would, in the
then temper of parties, have proved but a very slight
and trivial security. Of this there is a very strong
example in the history of those very articles: for,
though the Parliament omitted in the reign of King
William to ratify the first and most general of them,
they did actually confirm the second and more limited, that which related to the security of the inhabitants of those five counties which were in arms when
the treaty was made.
CHAPTER IV.
IN the foregoing book we considered these laws
in a very simple point of view, and in a very general
? ? ? ? TRACT ON THE POPERY LAWS. 351
one, - merely as a system of hardship imposed on
the body of the community; and from thence, and
from some other arguments, inferred the general injustice of such a procedure. II1 this we shall be
obliged to be more minute; and the matter will become more complex as we undertake to demonstrate
the mischievous and impolitic consequences which the
particular mode of this oppressive system, and the
instruments which it employs, operating, as we said,
on this extensive object, produce on the national prosperity, quiet, and security.
The stock of materials by which any nation is rendered flourishing and prosperous are its industry, its
knowledge or skill, its morals, its execution of justice,
its courage, and the national union in directing these
powers to one point, and making them all centre in
the public benefit. Other than these, I do not know
and scarcely can conceive any means by which a
community may flourish.
If we show that these penal laws of Ireland destroy
not one only, but every one, of these materials of public prosperity, it will not be difficult to perceive that
Great Britain, whilst they subsist, never can draw
from that country all the advantages to which the
bounty of Nature has entitled it.
To begin with the first great instrument of national happiness and strength, its industry: I must observe, that, although these penal laws do, indeed, inflict many hardships on those who are obnoxious to them, yet their chief, their most extensive, and most
certain operation is upon property. Those civil constitutions which promote industry are such as facilitate the acquisition, secure the holding, enable the
fixing, and suffer the alienation of property. Every
? ? ? ? 352 TRACT ON THE POPERY LAWS.
law which obstructs it in any part of this distribution
is, in proportion to the force and extent of the obstruction, a discouragement to industry. For a law
against property is a law against industry, - the latter having always the former, and nothing else, for
its object. Now as to the acqurisition of landed property, which is the foundation and support of all the
other kinds, the laws have disabled three fourths of
the inhabitants of Ireland from acquiring any estate
of inheritance for life or years, or any charge whatsoever on which two thirds of the improved yearly
value is not reserved for thirty years.
This confinement of landed property to one set of
hands, and preventing its free circulation through the
community, is a most leading article of ill policy; because it is one of the most capital discouragements
to all that industry which may be employed on the
lasting improvement of the soil, or is any way conversant about land. A tenure of thirty years is evidently no tenure upon which to build, to plant, to raise inclosures, to change the nature of the ground,
to make any new experiment which might improve
agriculture, or to do anything more than what may
answer the immediate and momentary calls of rent
to the landlord, and leave subsistence to the tenant
and his family. The desire of acquisition is always
a passion of long views. Confine a man to momentary possession, and you at once cut off that laudable
avarice which every wise state has cherished as one
of the first principles of its greatness. Allow a man
but a temporary possession, lay it down as a maxim
that he never can have any other, and you immediately and infallibly turn him to temporary enjoyments: and these enjoyments are never the pleasures
? ? ? ? TRACT ON THE POPERY LAWS. 353
of labor and free industry, whose quality it is to
famish the present hours and squander all upon
prospect and filturity; they are, on the contrary,
those of a thoughtless, loitering, and dissipated life.
The people must be inevitably disposed to such pernicious habits, merely from the short duration of
their tenure which the law has allowed. But it is
not enough that industry is checked by the confinement of its views; it is further discouraged by thc
limitation of its own direct object, profit. This is a
regulation extremely worthy of our attention, as it is
not a consequential, but a direct discouragement to
melioration, --as directly as if the law had said in
express terms, " Thou shalt not improve. "
But we have an additional argument to demonstrate the ill policy of denying the occupiers of land
any solid property in it. Ireland is a country wholly
unplanted. The farms have neither dwelling-houses nor good offices; nor are the lands, almost anywhere, provided with fences and communications: in a word, in a very unimproved state. The land-owner
there never takes upon him, as it is usual in this
kingdom, to supply all these conveniences, and to set
down his tenant in what may be called a completely
furnished farm. If the tenant will not do it, it is
never done. This circumstance shows how miserably
and peculiarly impolitic it has been in Ireland to tie
down the body of the tenantry to short and unprofitable tenures. A finished and furnished house will
be taken for any term, however short: if the repair
lies on the owner, the shorter the better. But no
one will take one not only unfurnished, but half
built, but upon a term which, on calculation, will answer with profit all his charges. It is on this princiVOL. VI. 23
? ? ? ? 354 TRACT ON THE POPERY LAWS.
pie that the Romans established their empphyteusis, or
fee-farm. For though they extended the ordinary
term of their location only to nine years, yet they
encouraged a more permanent letting to farm with
the condition of improvement, as well as of annual
payment, on the part of the tenant, where the land
had lain rough and neglected, -- and therefore invented this species of engrafted holding, in the later
times, when property came to be worse distributed
by falling into a few hands.
This denial of landed property to the gross of the
people has this further evil effect in preventing the
improvement of land, that it prevents any of the property acquired in trade to be regorged, as it were, upon the land. They must have observed very little, who have not remarked the bold and liberal spirit of
improvement which persons bred to trade have often
exerted on their land-purchases: that they usually
come to them with a more abundant command of
ready money than most landed men possess; and
that they have in general a much better idea, by
long habits of calculative dealings, of the propriety
of expending in order to acquire. Besides, such men
often bring their spirit of commerce into their estates
with them, and make manufactures take a root, where
the mere landed gentry had perhaps no capital, perhaps no inclination, and, most frequently, not sufficient knowledge, to effect anything of the kind. By these means, what beautiful and useful spots have
there not been made about trading and manufacturing towns, and how has agriculture had reason to bless
that happy alliance with commerce! and how miserable must that nation be, whose frame of polity has
disjoined the landing ar-d the trading interests!
? ? ? ? TRACT ON THE POPERY LAWS. 355
The great prop of this whole system is not pretended to be its justice or its utility, but the supposed
danger to the state, which gave rise to it originally,
and which, they apprehend, would return, if this
system were overturned. Whilst, say they, the Papists of this kingdom were possessed of landed property, and of the influence consequent to such property, their allegiance to the the crown of Great Britain was ever insecure, the public peace was ever liable to
be broken, and Protestants never could be a moment
secure either of their properties or of their lives.
Indulgence only made them arrogant, and power
daring; confidence only excited and enabled them
to exert their inherent treachery; and the times
which they generally selected for their most wicked
and desperate rebellions were those in which they
enjoyed the greatest ease and the most perfect tranquillity.
Such are the arguments that are used, both publicly and privately, in every discussion upon this
point. They are generally full of passion and of
error, and built upon facts which in themselves are
most false. It cannot, I confess, be denied, that those
miserable performances which go about under the
names of Histories of Ireland do, indeed, represent
those events after this manner; and they would
persuade us, contrary to the known order of Nature, that indulgence and moderation in governors
is the natural incitement in subjects to rebel. But
there is an interior history of Ireland, the genuine
voice of its records and monuments, which speaks
a very different language from these histories, from
Temple and from Clarendon: these restore Nature
to its just rights, and policy to its proper order. For
? ? ? ? 356 TRACT ON THE POPERY LAWS.
they even now show to those who have been at the
pains to examine them, and they may show one day
to all the world, thatethese rebellions were not produced by toleration, but by persecution, -- that they arose not from just and mild government, but from
the most unparalleled oppression. These records will
be far from giving the least countenance to a doctrine
so repugnant to humanity and good sense as that the
security of any establishment, civil or religious, can
ever depend upon the misery of those who live under
it, or that its danger can arise from their quiet and
prosperity. God forbid that the history of this or
any country should give such encouragement to the
folly or vices of those who govern! If it can be
shown that the great rebellions of Ireland have
arisen from attempts to reduce the natives to the
state to which they are now reduced, it will show
that an attempt to continue them in that state will
rather be disadvantageous to the public peace than
any kind of security to it. These things have in
some measure begun to appear already; and as far
as regards the argument drawn from former rebellions, it will fall readily to the ground. But, for my part, I think the real danger to every state is, to render its subjects justly discontented; nor is there in politics or science any more effectual secret for their
security than to establish in their people a firm opinion that no change can be for their advantage. It is true that bigotry and fanaticism may for a time draw
great multitudes of people from a knowledge of their
true and substantial interest. But upon this I have
to remark three things. First, that such a temper
can never become universal, or last for a long time
The principle of religion is seldom lasting; the ma:
? ? ? ? TRACT ON THE POPERY LAWS. 357
jority of men are in no persuasion bigots; they are
not willing to sacrifice, on every vain imagination that
superstition or enthusiasm holds forth, or that even
zeal and piety recommend, the certain possession of
their temporal happiness. And if such a spirit has
been at any time roused in a society, after it has had
its paroxysm it commonly subsides and is quiet, and
is even the weaker for the violence of its first exertion: security and ease are its mortal enemies. But, secondly, if anything can tend to revive and keep it
up, it is to keep alive the passions of men by ill usage.
This is enough to irritate even those who have not a
spark of bigotry in their constitution to the most desperate enterprises; it certainly will inflame, darken, and render more dangerous the spirit of bigotry in
those who are possessed by it. Lastly, by rooting out
any sect, you are never secure against the effects of
fanaticism; it may arise on the side of the most favored opinions; and many are the instances wherein the established religion of a state has grown ferocious and turned upon its keeper, and has often
torn to pieces the civil establishment that had cherished it, and which it was designed to support: France, - England,- Holland.
But there may be danger of wishing a change,
even where no religious motive can operate; and
every enemy to such a state comes as a friend to
the subject; and where other countries are under
terror, they begin to hope.
This argument ad verecundiam has as much force
as any such have. But I think it fares but very indifferently with those who make use of it; for they would get but little to be proved abettors of tyranny
at the expense of putting me to an inconvenient ac
? ? ? ? 358 TRACT ON THE POPERY LAWS.
knowledgment. For if I were to confess that there
are circumstances in which it would be better to
establish such a religion.
With regard to the Pope's interest. This foreign
chief of their religion cannot be more formidable to
us than to other Protestant countries. To conquer
that country for himself is a wild chimera; to encourage revolt in favor of foreign princes is an exploded idea in the politics of that court. Perhaps it would be full as dangerous to have the people under
the conduct of factious pastors of their own as under
a foreign ecclesiastical court.
In the second year of the reign of Queen Elizabeth
were enacted several limitations in the acquisition or
the retaining of property, which had, so far as regarded any general principles, hitherto remained untouched under all changes.
These bills met no opposition either in the Irish
Parliament or in the English Council, except from
private agents, who were little attended to; and they
passed into laws with the highest and most general
applauses, as all such things are in the beginning,
not as a system of persecution, but as masterpieces
of the most subtle and refined politics. And to say
the truth, these laws, at first view, have rather an
appearance of a. plan of vexatious litigation and
crooked law-chicanery than of a direct and sanguinary attack upon the rights of private conscience:
because they did not affect life, at least with regard
to the laity; and making the Catholic opinions rather
the. subject of civil regulations than of criminal pros
? ? ? ? TRACT ON THE POPERY LAWS. 359
ecutions, to those who are not lawyers and read these
laws they only appear to be a species of jargon. For
the execution of criminal law has always a certain
appearance of violence. Being exercised directly on
the persons of the supposed offenders, and commonly
executed in the face of the public, such executions
are apt to excite sentiments of pity for the sufferers,
and indignation against those who are employed in
such cruelties, -being seen as single acts of cruelty,
rather than as ill general principles of government.
But the operation of the laws in question being such
as common feeling brings home to every man's bosom,
they operate in a sort of comparative silence and obscurity; and though their cruelty is exceedingly great, it is never seen in a single exertion, and always escapes commiseration, being scarce known, except to those who view them in a general, which is always a
cold and phlegmatic light. The first of these laws
being made with so general a satisfaction, as the
chief governors found that such things were extremely acceptable to the leading people in that
country, they were willing enough to gratify them
with the ruin of their fellow-citizens; they were not
sorry to divert their attention from other inquiries,
and to keep them fixed to this, as if this had been
the only real object of their national politics; and
for many years there was no speech from the throne
which did not with great appearance of seriousness
recommend the passing of such laws, and scarce a
session went over without in effect passing some of
them, until they have by degrees grown to be the
most considerable head in the Irish statute-book. At
the same time giving a temporary and occasional
mitigation to the severity of some of the harshest
? ? ? ? 360 TRACT ON THE POPERY LAWS.
of those laws, they appeared in some sort the protectors of those whom they were in reality destroying by the establishment of general constitutions against
them. At length, however, the policy of this expedient is worn out; the passions of men are cooled; those laws begin to disclose themselves, and to produce effects very different from those which were promised in making them: for crooked counsels are
ever unwise; and nothing canl be more absurd and
dangerous than to tamper with the natural foundations of society, in hopes of keeping it up by certain contrivances.
0 I. . 0 0
? ? ? ? A
LETTER
TO
WILLIAM SMITH, ESQ. ,
ON THE SUBJECT OF CATHOLIC EMANCIPATION. JANUARY 29, I 795.
? ? ? ? LETTER. *
M Y DEAR SIR, -- Your letter is, to myself, inh
nitely obliging: with regard to you, I can find
no fault with it, except that of a tone of humility and
disqualification, which neither your rank, nor the
place you are in, nor the profession you belong to,
nor your very extraordinary learning and talents,
will in propriety demand or perhaps admit. These
dispositions will be still less proper, if you should
feel them in the extent your modesty leads you to
express them. You have certainly given by far too
strong a proof of self-diffidence by asking the opinion
of a man circumstanced as I am, on the important
subject of your letter. You are far more capable
of forming just conceptions upon it than I can be.
However, since you are pleased to command me to
lay before you my thoughts, as materials upon which
your better judgment may operate, I shall obey you,
and submit them, with great deference, to your melioration or rejection.
But first permit me to put myself in the right. I
owe you an answer to your former letter. It did not
desire one, but it deserved it. If not for an answer,
it called for an acknowledgment. It was a new favor; and, indeed, I should be worse than insensible,
* William Smith, Esq. , to whom this Letter is addressed, was then
a member of the Irish Parliament: he is now (1812) one of the Barons of the Court of Exchequer in Ireland.
? ? ? ? 864 LETTER TO WILLIAM SMITH, ESQ. ,
if I did not consider the honors you have heaped
upon me with no sparing hand with becoming gratitude. But your letter arrived to me at a time when the closing of my long and last business in life, a business extremely complex, and full of difficulties and vexatious of all sorts, occupied me in a manner which
those who have not seen the interior as well as exterior of it cannot easily imagine. I confess that
in the crisis of that rude conflict I neglected many
things that well deserved my best attention, - none
that deserved it better, or have caused me more regret in the neglect, thani your letter. The instant that business was over, and the House had passed its
judgment on the conduct of the managers, I lost no
time to execute what for years I had resolved on: it
was, to quit my public station, and to seek that tranquillity, in my very advanced age, to which, after
a very tempestuous life, I thought myself entitled.
But God has thought fit (and I unfeignedly acknowledge His justice) to dispose of things otherwise. So heavy a calamity has fallen upon me as to disable me
for business and to disqualify me for repose. The
existence I have I do not know that I can call life.
Accordingly, I do not meddle with any one measure
of government, though, for what reasons I know not,
you seem to suppose me deeply in the secret of affairs. I only know, so far as your side of the water
is concerned, that your present excellent Lord Lieutenant (the best man in every relation that I have ever been acquainted with) has perfectly pure intentions with regard to Ireland, and of course that lie wishes cordially well to those who form the great
mass of its inhabitants, and who, as they are well
or ill manlaged, must fborm anll important part of its
? ? ? ? ON CATHOLIC EMANCIPATION. 365
strength or weakness. If with regard to that great
object he has carried over ally ready-made system, I
assure you it is perfectly unknown to me: I am very
much retired from the world, and live in much ignorance. This, I hope, will form my humble apology,
if I should err in the notions I entertain of the question which is soon to become the subject of youi
deliberations. At the same time accept it as an
apology for my neglects.
You need make no apology for your attachment
to the religious description you belong to. It proves
(as in you it is. sincere) your attachment to the great
points in which the leading divisions are agreed, when
the lesser, in which they differ, are so dear to you.
I shall never call any religious opinions, which appear important to serious and pious minds, things of
no consideration. Nothing is so fatal to religion as
indifference, which is, at least, half infidelity. As
long as men hold charity and justice to be essential
integral parts of religion, there can be little danger
from a strong attachment to particular tenets in faith.
This I am perfectly sure is your case; but I am not
equally sure that either zeal for the tenets of faith,
or the smallest degree of charity or justice, have
much influenced the gentlemen who, under pretexts
*of zeal, have resisted the enfranchisement of their
country. My dear son, who was a person of discernment, as well as clear and acute in his expressions, said, in a letter of his which I have seen, " that, in order to grace their cause, and to draw
some respect to their persons, they pretend to be
bigots. " But here, I take it, we have not much to
do with the theological tenets on the one side of
the question or the other.
