By preserving this right, and
exercising
it with temper and moderation, I trust I cannot offend the noble proposer, for whom no man
professes or feels more respect and regard than I do.
professes or feels more respect and regard than I do.
Edmund Burke
And be it enacted, that the minister
d(irect punishment for shall have power to punish any negro for
disorderly
conduct. disorderly conduct during divine service, by
a punishment not exceeding [ten] blows to be given
in one day and for one offence, which the overseer
or his under agent or agents is hereby directed, according to the orders of the said minister, effectually
to inflict, whenever the same shall be ordered.
Spirituous 12. And be it enacted, that no spirituous
liquors not to
be sold. liquors of any kind shall be sold, except in
? ? ? ? SKETCH OF A NEGRO CODE. 281
towns, within ~ miles distance of any church, nor
within any district durirg divine service, and all hour
preceding aind an hour following the same; and the
minister of each parish shall anld is hereby authorized to act as a justice of the peace in enforcing the
said regulation.
13. And be it enacted, that every minis- Regrister of
births, buriter shall keep a register of births, burials, als,and marriages.
and marriages of all negroes and mulattoes
in his district.
14. And be it enacted, that the mlinisters Synod toassemble anof the several districts shall meet annually, nually, and to form reguoll the day of-, in a synod of lations,
the islaiid to which they belong; and the said synod
shall have for its president such person as the Bishop
of London shall appoint for his commissary; and the
said synod or general assembly is hereby authorized,
by a majority of voices, to make regulations, which
regulations shall be transmitted by the said president
or commissary to the Bishop of London; and when
returned by the Bishop of LvTudon approved of, then,
and not before, the said regulations shall be held in
force to bind the said clergy, their assistants, clerks,
land schoolmasters only, and no other persons.
15. And be it enacted, that the said pres- and to report
to the Bishop
ident shall collect matter in the said assem- of London.
bly, and sha,ll make a report of the state of religion
and morals in the several parishes from whence the
synod is deputed, and shall transmit the same, once
in the year, in duplicate, tlhrough the governor and
protector of negroes, to the Bishop of London.
16. And be it enacted and declared, that Bishopof
London to be
the Bishop of London for the time being patron of the
shall be patron to all and every the said
? ? ? ? 282 SKETCH OF A NEGRO CODE.
cures in this act directed; and the said bishop is
hereby required to provide for the due filling thereof, and is to receive, from the fund in this act provided for the due execution of this act, a sum not exceeding. for each of the said ministers, for
his outfit and passage.
and to have 17. And be it enacted, that, on misbehapower of suspending and vior, and on complaint from the said synod,
removing
ministers. and on hearing the party accused in a plain
and summary manner, it shall and may be lawful for
the Bishop of London to suspend or to remove any
minister from his cure, as his said offences shall appear to merit.
Schools for 18. And be it enacted, that for every two
young negroes. ditsricts a school shall be established for
young negroes to be taught three days in the week,
and to be detained from their owner four hours in
each day, the number not to be more or fewer than
twenty males in each district, who shall be chosen,
and vacancies filled, by the minister of the district;
and the said minister shall pay to the owner of the
said boy, and shall be allowed the same in his accounts at the synod, to the age of twelve years old,
three-pence by the day, and for every boy from twelve
years old to fifteen, five-pence by the day.
19. And it is enacted, that, if the president of the
synod aforesaid shall certify to the protector of negroes, that any boys in the said schools (provided
that'the number in no one year shall exceed one in
the island of Jamaica, and one in two years in the
islands of Barbadoes, Antigua, and Grenada, and one
Extraordi- in four years in any of the other islands)
nary abilities
to be ecour- do show a remarkable aptitude for learning,
aged. and
the said protector is hereby authorized and
? ? ? ? SKETCH OF A NEGRO CODE. 283
airected to purchase the said boy at the best rate at
which boys of that age and strength have been sold
within the year; and the said negi'o so purchased
shall be under the entire guardianship of the said
protector of negroes, who shall send him to the
Bishop of London for his further education in England, and may charge in his accounts for the expense
of transporting him to England; and the Bishop of
London shall provide for the education of such of the
said negroes as he shall think proper subjects, until
the age of twenty-four years, and shall order those
who shall fall short of expectation after one year to
be bound apprentice to some handicraft trade; and
when his apprenticeship is finished, the Lord Mayor
of London is hereby authorized and directed to receive the said negro from his master, and to transmit
him to the island from which he came, in the West
Indies, to be there as a free negro, subject, however,
to the direction of the protector of negroes, relatively
to his behavior and employment.
20. And it is hereby enacted and pro- Negroesof
Dissenters;
vided, that any planter, or owner of negroes,
not being of the Church of England, and not choosing to send his negroes to attend divine service in
manner by this act directed, shall give, jointly or severally, as the case shall require, security to the protector of negroes that a competent minister of some Christian church or congregation shall be provided
for the due instruction of the negroes, and for their
performing divine service according to the description
of the religion of the master or masters, in some
church or house thereto allotted, in the manner and
with the regulations in this act prescribed with regard t, the exercise of religion according to the
? ? ? ? 284 SKETCH OF A NEGRO CODE.
their mar- Church of England: provided always, that
riages, &c. ,
to be regis- the marriages of the said negroes belonging
tered.
to Dissenters shall be celebrated only in the
church of the said district, and that a register of the
births shall be transmitted to the minister of the said
district.
Regulations 21. And whereas a state of matrimony,
concernlling
marriage. and the government of a family, is a principal means of forming men to a fitness for freedom, and to become good citizens: Be it enacted, that all
negro men and women, above eighteen years of age
for the man and sixteen for the woman, who have
cohabited together for twelve months or upwards, or
shall cohabit for the same time, and have a child or
children, shall be deemed to all intents and purposes
to be married, and either of the parties is authorized
to require of the ministers of the district to be married in the face of the church.
Concerning 22. And be it enacted, that, from and afthe same.
ter the of, all negro men in
an healthy condition, and so reported to be, in case
the same is denied, by a surgeon and by an inspector
of negroes, and being twenty-one years old, or upwards, until fifty, and not being before married, shall, on requisition of the inspectors, be provided by their
masters or overseers with a woman not having children living, and not exceeding the age of the man, nor, in any case, exceeding the age of twenty-five
years; and such persons shall be married publicly in
the face of the church.
Concerning 23. And be it enacted, that, if any negro
the same.
shall refuse a competent marriage tendered
to him, and shall not demand another specifically,
such as it may be in his master's power to provide,
? ? ? ? SKETCH OF A NEGRO CODE. 285
the master or overseer shall be authorized to constrain
him by an increase of work or a lessening of allowance.
24. And be it enacted, that the minister Adultery,
&c. , how
in each district shall have, with the assent to be punof the inspector, full power and authority
to punish all acts of adultery, unlawful concubinage,
and fornication, amongst negroes, on hearing and a
summary process, by ordering a number of blows,
not exceeding, for each offence; and if any
white person shall be proved, on information in the
supreme court, to be exhibited by the protector of
negroes, to have committed adultery with any negro
woman, or to have corrupted any negro woman under
sixteen years of ago, he shall be fined in the sum of, and shall be forever disabled from serving the office of overseer of negroes, or being attorney to
any plantation.
25. And be it enacted, that no slaves Concerning
shall be compelled to do any work for their
masters for' [three] days after their marriage.
26. And be it enacted, that no woman Concerning
pregnant
shall be obliged to field-work, or any other women.
laborious work, for one month before her delivery, or
for six weeks afterwards.
27. And be it enacted, that no husband Separation
of husband
and wife shall be sold separately, if original- and wife,
and chilly belonging to the same master; nor shall dren, to be
avoided.
any children under sixteen be sold separately from their parents, or one parent, if one be
living.
28. And be it enacted, that, if an husband Concerning
the same.
and wife, which before their intermarriage
belonged to different owners, shall be sold, they shall
? ? ? ? 286 SKETCH OF A NEGRO CODE.
not be sold at such a distance as to prevent mutual
help and cohabitation; and of this distance the minister shall judge, and his certificate of the inconvenient distance shall be valid, so as to make such sale unlawful, and to render the same null and void.
Negroes not 29. And be it enacted, that no negro
to work on
Saturday shall be compelled to work for his owner at
Sunday. field-work, or any service relative to a plantation, or to work at any handicraft trade, from eleven o'clock on Saturday forenoon until the usual working
hour on Monday morning.
Other cases 30. And whereas habits of industry and
of exemption
from labor. sobriety, and the means of acquiring and
preserving property, are proper and reasonable preparatives to freedom, and will secure against an
abuse of the same: Be it enacted, that every negro
man, who shall have served ten years, and is thirty
years of age, and is married, and has had two children born of any marriage, shall obtain the whole of Saturday for himself and his wife, and for his own
benefit, and after thirty-seven years of age, the whole
of Friday for himself and his wife: provided that in
both cases the minister of the district and the inspector of negroes shall certify that they know nothing against his peaceable, orderly, and industrious behavior.
Huts and 31. And be it enacted, that the master
land to be
armpopri- of every plantation shall provide the materials of a good and substantial hut for each
married field negro; and if his plantation shall exceed
acres, he shall allot to the same a portion of
land not less than: and the said hut and land
shall remain and stand annexed to the said negro,
for his natural life, or during his bondage; but the
? ? ? ? SKETCH OF A NEGRO CODE. 287
same shall not be alienated without the consent of
the owners.
32. And be it enacted, that it shall not Property
of negroes
be lawful for the owner of any negro, by secured.
himself or any other, to take from him any land,
house, cattle, goods, or money, acquired by the said
negro, whether by purchase, donation, or testament,
whether the same has been derived from the owner
of the said negro, or any other.
33. And be it enacted, that, if the said negro shall
die possessed of any lands, goods, or chattels, and
dies without leaving a wife or issue, it shall be lawful for the said negro to devise or bequeath the same by his last will; but in case the said negro shall die
intestate, and leave a wife and children, the same
shall be distributed amongst them, according to the
usage under the statute, commonly called the Statute of Distributions; but if the said negro shall die intestate without wife or children, then, and in that
case, his estate shall go to the fund provided for the
better execution of this act.
34. And be it enacted, that no negro, who is married, and hath resided upon any plantation for twelve months, shall be sold, either privately or by the decree of any court, but along with the plantation on which lhe hath resided, unless he should himself request to be separated therefrom.
35. And be it enacted, that no blows or Of th
punishment
stripes exceeding thirteen shall be inflicted of egrres.
for one offence upon any negro, without the order
of one of his Majesty's justices of peace.
36. And it is enacted, that it shall be Of thesame.
lawful for the protector of negroes, as often as on
complaint and hearing he shall be of opinion that
? ? ? ? 288 SKETCH OF A NEGRO CODE.
any negro hath been cruelly and inhumanly treated,
or when it shall be made to appear to him that an
overseer hath any particular malice, to order, at the
desire of the suffering party, the said negro to be
sold to another master.
37. And be it enacted, that, in all cases of injury
to member or life, the offences against a negro shall
be deemed and taken to all intents and purposes
as if the same were perpetrated against any of his
Majesty's subjects; and the protector of negroes, on
complaint, or if he shall receive credible information thereof, shall cause an indictment to be presented for the same; and ill case of suspicion of any
murder of a negro, an inquest by the coroner, or
officer acting as such, shall, if practicable, be held
into the same.
Ofthe man- 38. And in order to a gradual malnumisUmission of
negroes. sion of slaves, as they shall seem fitted to
fill the offices of freemen, be it enacted, that every
negro slave, being thirty years of age and upwards,
and who has had three children born to him il lawful matrimony, and who hath received a certificate
from the minister of his district, or any other Christian teacher, of his regularity ill the duties of religion, and of his orderly and good behavior, may purchase, at rates to be fixed by two justices of peace, the freedom of himself, or his wife or children, or
of any of them separately, valuing the wife and clildren, if purchased into liberty by the father of tlle
family, at half only of their marketable values: provided that the said father shall bind himself in a
penalty of for the good behavior of his children.
Of the same. 39. And be it enacted, that it shall be
? ? ? ? SKETCH OF A NEGRO CODE. 289
lawful for the protector of negroes to purchase the
freedom of any negro who shall appear to him to
excel in any mechanical art, or other knowledge or
practice deemed liberal, and the value shall be settled by a jury.
40. And be it enacted, that the protector Free
negroes
of negroes shall be and is authorized and how tobe
punished
required to act as a magistrate for the coercion of all idle, disobedient, or disorderly free negroes, and he shall by office prosecute them for the offences of idleness, drunkenness, quarrelling, gailing, or vagrancy, in the supreme court, or cause
them to be prosecuted before one justice of peace,
as the case may require.
41. And' be it enacted, that, if any free Ofthe same.
negro hath been twice convicted for any of the said
misdemeanors, and is judged by the said protector'
of negroes, calling to his assistance two justices of
the peace, to be incorrigibly idle, dissolute, and vicious, it shall be lawful, by the order of the said
protector and two justices of peace, to sell the said
free negro into slavery: the purchase-money to be
paid to the person so remanded into servitude, or
kept in hand by the protector and governor for the
benefit of his family.
42. And be it enacted, that the gover- Governorto
receive andI
nor in each colony shall be assistant to the transmit annual reports.
execution of this act, and shall receive the
reports of the protector, and such other accounts as
he shall judge material, relative thereto, and shall
transmit the same annually to one of his Majesty's
principal secretaries of state.
VOL. VI. 19
? ? ? ? A
LETTER
TO
THE CHAIRMAN OF THE BUCKINGHAMSHIRE MEETING,
HELD AT AYLESBURY, APRIL 13, 1780,
ON THE SUBJECT OF
PARLIAMENTARY REFORM.
? ? ? ? NOTE.
THE meeting of the freeholders of the County of Buckingham, which occasioned the following Letter, was called for the purpose of taking into consideration a petition to Parliament for
shortening the duration of Parliaments, and for a more equal
representation of the people in the House of Commons.
? ? ? ? LETTER.
SIR, --Having heard yesterday, by mere accident,
that there is an intention of laying before the
county meeting new matter, which is not contained in
our petition, and the consideration of which had been
deferred to a fitter time by a majority of our committee in London, permit me to take this method of submitting to you my reasons for thinking, with our committee, that nothing ought to be hastily determined upon the subject.
Our petition arose naturally from distresses which
we felt; and the requests which we made were in
effect nothing more than that such things should be
done in Parliament as it was evidently the duty of
Parliament to do. But the affair which will be proposed to you by a person of rank and ability is an
alteration in the constitution of Parliament itself. It
is impossible for you to have a subject before you of
more importance, and that requires a more cool and
more mature consideration, both on its own account,
and for the credit of our sobriety of mind, who are
to resolve upon it.
The county will in some way or other be called
upon to declare it your opinion, that the House of
Commons is not sufficiently numerous, and that the
-elections are not sufficiently frequent, - that an hundred new knights of the shire ought to be added, and
that we are to have a new election once in three
? ? ? ? 294 LETTER TO THE BUCKINGHAMSHIRE MEETING
years for certain, and as much oftener as the king
pleases. Such will be the state of things, if the proposition made shall take effect.
All this may be proper. But, as an honest man, I
cannot possibly give my vote for it, until I have considered it more fully. I will not deny that our Constitution may have faults, and that those faults, when found, ought to be corrected; but, on the whole,
that Constitution has been our own pride, and an
object of admiration to all other nations. It is not
everything which appears at first view to be faulty,
in such a complicated plan, that is to be determined
to be so in reality. To enable us to correct the Constitution, the whole Constitution must be viewed together; and it must be compared with the actual state of the people, and the circumstances of the
time. For that which taken singly and by itself may
appear to be wrong, when considered with relation
to other things, may be perfectly right, - or at least
such as ought to be patiently endured, as the means
of preventing something that is worse. So far with
regard to what at first view may appear a distemper in
the Constitution. As to the remedy of that distemper
an equal caution ought to be used; because this latter consideration is not single and separate, no more
than the former. There are many things in reformation which would be proper to be done, if other things
can be done along with them, but which, if they
cannot be so accompanied, ought not to be done at
all. I therefore wish, when any new matter of this
deep nature is proposed to me, to have the whole
scheme distinctly in my view, and full time to consider of it. Please God, I will walk with caution, whenever I am not able clearly to see my way before me.
? ? ? ? ON PARLIAMENTARY REFORM. 295
I am now growing old. I have from my very early
youth been conversant in reading and thinking upon
the subject of our laws and Constitution, as well as
upon those of other times and other countries; I
have been for fifteen years a very laborious member
of Parliament, and in that time have had great opportunities of seeing with my own eyes the working of
the machine of our government, and remarking where
it went smoothly and did its business, and where it
checked in its movements, or where it damaged its
work; I have also had and used the opportunities of
conversing with men of the greatest wisdom and fullest experience in those matters; and I do declare to
you most solemnly and most truly, that, on the result
of all this reading, thinking, experience, and communication, I am not able to come to an immediate resolutibn in favor of a change of the groundwork of our Constitution, and in particular, that, in the present
state of the country, in the present state of our representation, in the present state of our rights and modes
of electing, in the present state of the several prevalent interests, in the present state of the affairs and
manners of this country, the addition of an hundred
knights of the shire, and hurrying election on election, will be things advantageous to liberty or good
government.
This is the present condition of my mind; and
this is my apology for not going as fast as others may
choose to go in this business. I do not by any means
reject the propositions; much less do I condemn the
gentlemen who, with equal good intentions, with
much better abilities, and with infinitely greater personal weight and consideration than mine, are of
opinion that this matter ought to be decided upon
instantly.
? ? ? ? 296 LETTER TO THE BUCKINGHAMSHIRE MEETING
I most heartily wish that the deliberate sense of
the kingdom on this great subject should be known. When it is known, it must be prevalent. It would
be dreadful indeed, if there was any power in the
nation capable of resisting its unanimous desire, or
even the desire of any very great and decided majority of the people. The people may be deceived in their choice of an object; but I can scarcely conceive any
choice they can make to be so very mischievous as
the existence of any human force capable of resisting
it. It will certainly be the duty of every man, in the
situation to which God has called him, to give his
best opinion and advice upon the matter: it will not
be his duty, let him think what he will, to use allny
violent or any fraudulent means of counteracting the
general wish, or even of employing the legal and
constructive organ of expressing the people's sense
against the sense which they do actually entertain.
In order that the real sense of the people should be
known upon so great an affair as this, it is of absolute
necessity that timely notice should be given, - that
the matter should be prepared in open committees,
fromn a choice into which no class or description of
men is to be excluded, - and the subsequent county
meetings should be as full and as well attended as
possible. Without these precautions, the true sense
of the people will ever be uncertain. Sure I am,
that no precipitate resolution on a great change in
the fundamental constitution of any country can ever
be called the real sense of the people.
I trust it will not be taken amiss, if, as an inhabitant and fireeholder of this county, (one, indeed,
among the most inconsiderable,) I assert my right of
dissenting (as I do dissent fully and directly) from
? ? ? ? ON PARLIAMENTARY REFORM. 297
any resolution whatsoever on the subject of an alteration in the representation and election of the kingdom at this time.
By preserving this right, and exercising it with temper and moderation, I trust I cannot offend the noble proposer, for whom no man
professes or feels more respect and regard than I do.
A want of concurrence in everything which can be
proposed will in no sort weaken the energy or distract the efforts of men of upright intentions upon
those points in which they are agreed. Assemblies
that are met, and with a resolution to be all of a
mind, are assemblies that can have no opinion at all
of their own. The first proposer of any measure
must be their master. I do not know that an amicable variety of sentiment, conducted with mutual
good-will, has any sort of resemblance to discord, or
that it can give any advantage whatsoever to the enemies of our common cause. On the contrary, a
forced and fictitious agreement (which every universal agreement imust be) is not becoming the cause of
freedom. If, however, any evil should arise from it,
(which I confess I do not foresee,) I am happy that
those who have brought forward new and arduous
matter, when very great doubts and some diversity
of opinion must be foreknown, are of authority and
weight enough to stand against the consequences.
I humbly lay these my sentiments before the county. They are not taken up to serve any interests of
my own, or to be subservient to the interests of any
man or set of men under heaven. I could wish to
be able to attend our meeting, or that I had time to
reason this matter more fully by letter; but I am
detained here upon our business: what you have already put upon us is as much as we can do. If we
? ? ? ? 298 LETTER TO THE BUCKINGHAMSHIRE MEETING.
are prevented from going through it with any effect,
I fear it will be in part owing not more to the resistance of the enemies of our cause than to our imposing on ourselves such tasks as no human faculties, employed as we are, can be equal to. Our worthy
members have shown distinguished ability and zeal
in support of our petition. I am just going down to
a bill brought in to frustrate a capital part of your
desires. The minister is preparing to transfer the
cognizance of the public accounts from those whom
you and the Constitution have chosen to control them,
to unknown persons, creatures of his own. For so
much he annihilates Parliament.
I have the honor, &c.
EDMUND BURKE.
CHARLES STREET, 12th April, 1780.
? ? ? ? FRAGMENTS OF A TRACT RELATIVE TO
TIHE LAWS AGAINST POPERY IN IRELAND.
? ? ? ? NOTE.
rHE condition of the Roman Catholics in Ireland appears to
have engaged the attention of Mr. Burke at a very early period
of his political life. It was probably soon after the year 1765
that he formed the plan of a work upon that subject, the fragments of which are now given to the public. No title is prefixed to it in the original manuscript; and the Plan, which it has been thought proper to insert here, was evidently designed
merely for the convenience of the author. Of the first chapter
some unconnected fragments only, too imperfect for publication,
have been found. Of the second there is a considerable portion,
perhaps nearly the whole; but the copy from which it is printed
is evidently a first rough draught. The third chapter, as far as
it goes, is taken from a fair, corrected copy; but the end of the
second part of the first head is left unfinished, and the discussion
of the second and third heads was either never entered upon or
the manuscript containing it has unfortunately been lost. What
follows the third chapter appears to have been designed for the
beginning of the fourth, and is evidently the first rough draught;
and to this we have added a fragment which appears to have
been a part either of this or the first chapter.
In the volume with which it is intended to close this posthumous publication of Mr. Burke's Works, we shall have occasion
to enter into a more particular account of the part which he
took in the discussion of this great political question. At present
it may suffice to say, that the Letter to Mr. Smith, the Second
Letter to Sir Hercules Langrishe, and the Letter to his Son,
which here follow in order the Fragment on the Popery Laws,
are the only writings upon this subject found amongst his papers
in a state fit to appear in this stage of the publication. What
remain are some small fragments of the Tract, and a few letters
containing no new matter of importance.
? ? ? ? ON THE POPERY LAWS. RACT
ON THE POPERY LAWS.
THE PLAN.
PROPOSE, first, to make an Introduction, in order to show the propriety of a closer inspection into the affairs of Ireland; and this takes up the first
chapter, which is to be spent in this introductory matter, and in stating the Popery laws in general, as one leading cause of the imbecility of the country. CH. II. states particularly the laws themselves, in
a plain and popular manner.
CH. III. begins the remarks upon them, under the
heads of, 1st, The object, - which is a numerous people; 2ndly, Their means, - a restraint on property; 3rdly, Their instruments of execution, - corrupted
morals, which affect the national prosperity.
CH. IV. The impolicy of those laws, as they affect the national security.
CH. V. Reasons by which the laws are supported,
and answers to them.
CHAPTER II.
IN order to lay this matter with full satisfaction
before the reader, I shall collect into one point of
view, and state as shortly and as clearly as I am
able, the purport of these laws, according to the
? ? ? ? 302 TRACT ON THE POPERY LAWS.
objects which they affect, without making at present
any further observation upon them, but just what
shall be necessary to render the drift and intention of
the legislature and the tendency and operation of the
laws the more distinct and evident.
I shall begin with those which relate to the possession and inheritance of landed property in Popish
hands. The first operation of those acts upon this
object was wholly to change the course of descent by
the Common Law, to take away the right of primogeniture, and, in lieu thereof, to substitute and establish a new species of Statute Gavelkind. By this
law, on the death of a Papist possessed of an estate
in fee simple or in fee tail, the land is to be divided
by equal portions between all the male children; and
those portions are likewise to be parcelled out, share
and share alike, amongst the descendants of each son,
and so to proceed in a similar distribution ad infinitum. From this regulation it was proposed that some
important consequences should follow. First, by taking away the right of primogeniture, perhaps in the
very first generation, certainly in the second, the
families of Papists, however respectable, and their fortunes, however considerable, would be wholly dissipated, and reduced to obscurity and indigence, without any possibility that they should repair them by their
industry or abilities, -being, as we shall see anon,
disabled from every species of permanent acquisition.
Secondly, by this law the right of testamentation is
taken away, which the inferior tenures had always
enjoyed, and all tenures from the 27th HIen. VIII.
Thirdly, the right of settlement was taken away, that
no such persons should, from the moment the act
passed, be enabled to advance themselves in fortune
? ? ? ? TRACT ON THE POPERY LAWS. 303
or connection by marriage, being disabled from making any disposition, in consideration of such marriage, but what the law had previously regulated: the reputable establishment of the eldest son, as representative of the family, or to settle a jointure, being commonly
the great object in such settlements, which was the
very power which the law had absolutely taken away.
The operation of this law, however certain, might
be too slow. The present possessors might happen to
be long-lived. The legislature knew the natural impatience of expectants, and upon this principle they
gave encouragement to children to anticipate the
inheritance. For it is provided, that the eldest son
of any Papist shall, immediately on his conformity,
change entirely the nature and properties of his father's legal estate: if he before held in fee simple,
or, in other words, had the entire and absolute domillion over the land, he is reduced to an estate for
his life only, with all the consequences of the natural
debility of that estate, by which he becomes disqualified to sell, mortgage, charge, (except for his life,)
or in any wise to do any act by which he may raise
money for relief in his most urgent necessities. The
eldest son, so conforming, immediately acquires, and
in the lifetime of his father, the permanent part, what
our law calls the reversion and inheritance of the
estate; and he discharges it by retrospect, and annuls every sort of voluntary settlement made by the father ever so long before his conversion. This he
may sell or dispose of immediately, and alienate it
from the family forever.
Having thus reduced his father's estate, he may
also bring his father into the Court of Chancery,
where he may compel him to swear to the value of
? ? ? ? 304 TRACT ON THE POPERY LAWS.
his estate, and to allow him out of that possession
(which had been before reduced to an estate for life)
such an immediate annual allowance as the Lord
Chancellor or Lord Keeper shall judge suitable to his
age and quality.
This indulgence is not confined to the eldest son.
The other children likewise, by conformity, may acquire the same privileges, and in the same manner
force from their father an immediate and independent maintenance. It is very well worth remarking,
that the statutes liave avoided to fix any determinate
age for these emancipating conversions; so that the
children, at any age, however incapable of choice in
other respects, however immature or even infantile,
are yet considered sufficiently capable to disinherit
their parents, and totally to subtract themselves from
their direction and control, either at their own option,
or by the instigation of others. By this law the tenure and value of a Roman Catholic in his real property is not only rendered extremely limited and altogether precarious, but the paternal power is in all such families so enervated that it may well be considered as entirely taken away; even the principle upon
which it is founded seems to be directly reversed.
However, the legislature feared that enough was not
yet done upon this head. The Roman Catholic parent, by selling his real estate, might in some sort preserve the dominion over his substance and his family,
and thereby evade the operation of these laws, which
intended to take away -both. Besides, frequent revolutions and many conversions had so broken the
landed property of Papists in that kingdom, that it
was apprehended that this law could have in a short
time but a few objects upon which it would be capa.
ble of operating.
? ? ? ? TRACT ON THE POPERY LAWS. 305
To obviate these inconveniences another law was
made, by which the dominion of children over their
parents was extended universally throughout the
whole Popish part of the nation, and every child of
every Popish parent was encouraged to come into
what is called a court of equity, to prefer a bill
against his father, and compel him to confess, uponl
oath, the quantity and value of his substance, personal as well as real, of what nature soever, or howsoever it might be employed; upon which discovery, the court is empowered to seize upon and allocate, for
the immediate maintenance of such child or children,
any sum not exceeding a third of the whole fortune:
and as to their future establishment on the death of
the father, no limits are assigned; the Chancery may,
if it thinks fit, take the whole property, personal as
well as real, money, stock in trade, &c. , out of the
power of the possessor, and secure it in anly manner
they judge expedient for that purpose; for the act
has not assigned any sort of limit with regard to the
quantity which is to be charged, or given any direction concerning the means of charging and securing
it: a law which supersedes all observation.
But the law is still more extensive in its provision. Because there was a possibility that the parent,
though sworn, might by false representations evade
the discovery of the ultimate value of his estate, a
new bill may be at any time brought, by one, any, or
all of the children, for a further discovery; his effects
are to undergo a fresh scrutiny, and a new distribnution is to be made in consequence of it. So that the
parent has no security against perpetual inquietude,
and the reiteration of Chancery suits, but by (what
is somewhat difficult for human nature to coinply
VOL. VI. 20
? ? ? ? 306 TRACT ON THE POPERY LAWS.
with) fully, and without reserve, abandoning his
whole property to the discretion of the court, to be
disposed of in favor of such children.
But is this enough, and has the parent purchased
his repose by such a surrender? Very far from it.
The law expressly, and very carefully, provides that he
shall not: before he can be secure from the persecution of his children, it requires another and a much
more extraordinary condition: the children are authorized, if they can find that their parent has by
his industry, or otherwise, increased the value of his
property since their first bill, to bring another, compelling a new account of the value of his estate, in
order to a new distribution proportioned to the value
of the estate at the time of the new bill preferred.
They may bring such bills, toties quoties, upon every
improvement of his fortune, without any sort of limitation of time, or regard to the frequency of such
bills, or to the quantity of the increase of the estate,
which shall justify the bringing them. This act expressly provides that he shall have no respite from
the persecution of his children, but by totally aban-. doning all thoughts of improvement and acquisition.
This is going a great way, surely: but the laws in,question have gonle much further. Not satisfied with,callinlg upon children to revolt against their parents,. and to possess themselves of their substance, there:are cases where the withdrawing of the child from his father's obedience is not left to the optioni of the
child himself: for, if the wife of a Roman Catholic
should choose to change her religion, from that moment she deprives her husband of all management
and direction of his childrenl, and even of all the ten,der satisfaction which a parent Call feel in their so
? ? ? ? TRACT ON THE POPERY LAWS. 307
ciety, and which is the only indemnification he can
have for all his cares and sorrows; and they are to
be torn forever, at the earliest age, from his house
and family: for the Lord Chancellor is not only authorized, but he is strongly required, to take away
all his children from such Popish parent, to appoint
where, in what manner, and by whom they are to be
educated; and the father is compelled to pay, not for
the ransom, but for the deprivation of his children,
and to furnish such a sum as the Chancellor thinks
proper to appoint for their education to the age of
eighteen years. The case is the same, if the husband
should be the conformist; though how the law is to
operate in this case I do not see: for the act expressly says, that the child shall be taken from such Popish
parent; and whilst such husband and wife cohabit,
it will be impossible to put it into execution without
taking the child from one as well as from the other;
and then the effect of the law will be, that, if either
husband or wife becomes Protestant, both are to be
deprived of their children.
The paternal power thus being wholly abrogated, it
is evident that by the last regulation the power of an
husband over his wife is also considerably impaired;
because, if it be in her power, whenever she pleases,
to subtract the children from his protection'and obedience, she herself by that hold inevitably acquires a
power and superiority over her husbaind.
But she is not left dependent upon this oblique
influence: for, if in any marriage settlement the husballd has reserved to him a power of making a jointure, and he dies without settling ally, her conformity executes his powers, and executes them in as large
extent as the Chancellor thinks fit. The husband is
? ? ? ? 308 TRACT ON THE POPERY LAWS.
deprived of that coercive power over his wife which
he had in his hands by the use he might make of the
discretionary power reserved in the settlement.
But if no such power had been reserved, and no
such settlement existed, yet, if the husband dies, leav
ing his conforming wife without a fixed provision by
some settlement on his real estate, his wife may apply to Chancery, where she shall be allotted a portion from his leases, and other personal estate, not exceeding one third of his whole clear substance. The laws in this instance, as well as in the former, have presumed that the husband has omitted to make all the provision whlich he might have done, for no other
reason than that of her religion. If, therefore, she
chooses to balance any domestic misdemeanors to
her husband by the public merit of conformity to
the Protestant religion, the law will suffer no plea
of such misdemeanors to be urged on the husband's
part, nor proof of that kind to be entered into. She
acquires a provision totally independent of his favor,
and deprives him of that source of domestic authority
which the Common Law had left to him, that of rewarding or punishing, by a voluntary distribution of
his effects, what in his opinion was the good or ill
behavior of his wife.
Thus the laws stand with regard to the property
already acquired, to its mode of descent, and to family powers. Now as to the new acquisition of real property, and both to the acquisition and security of
personal, the law stands thus:All persons of that persuasion are disabled from
taking or purchasing, directly or by a trust, any
lands, any mortgage upon land, any rents or profits
from land, any lease, interest, or term of any land,
? ? ? ? TRACT ON THE POPERY LAWS. 309
any annuity for life or lives or years, or any estate
whatsoever, chargeable upon, or which may in any
manner affect, any lands.
One exception, and one only, is admitted by the
statutes to the universality of this exclusion, viz. , a
lease for a term not exceeding thirty-one years. But
even this privilege is charged with a prior qualification. This remnant of a right is doubly curtailed:
1st, that on such a short lease a rent not less than
two thirds of the full improved yearly value, at the
time of the making it, shall be reserved during the
whole continuance of the term; and, 2ndly, it does
not extend to the whole kingdom. This lease must
also be in possession, and not in reversion. If any
lease is made, exceeding either in duration or value,
and in the smallest degree, the above limits, the whole
interest is forfeited, and vested ipsofacto in the first
Protestant discoverer or informer. This discoverer,
thus invested with the property, is enabled to sue for
it as his own right. The courts of law are not alone
open to him; he may (and this is the usual method)
enter into either of the courts of equity, and call upon
the parties, and those whom he suspects to be their
trustees, upon oath, and under the penalties of perjury, to discover against themselves the exact nature and value of their estates in every particular, in order
to induce their forfeiture on the discovery. In such
suits the informer is not liable to those delays which
the ordinary procedure of those courts throws into
the way of the justest claimant; nor has the Papist
the indulgence which he [it? ] allows to the most
fraudulent defendant, that of plea and demurrer; but
the defendant is obliged to answer the whole directly
upon oath. The rule offavores ampliandi, &c. , is re
? ? ? ? 810 TRACT ON THE POPERY LAWS.
versed by this act, lest any favor should be shown, or
the force and operation of the law in any part of its
progress be enervated. All issues to be tried on this
act are to be tried by none but known Protestants.
It is here necessary to state as a part of this law
what has been for some time generally understood as
a certain consequence of it. The act had expressly
provided that a Papist could possess no sort of estate
which might affect land (except as before excepted).
On this a difficulty did, not unnaturally, arise. It is
generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to
be delivered unto the creditor until the obligation is
satisfied, under a writ called Elegit, and this writ has
been ever since the ordinary assurance of the land,
and the great foundation of general credit in the
nation. Although the species of holding under this
writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security,
because it may create an estate, however precarious,
in land, their whole debt or charge is forfeited, and
becomes the property of the Protestant informer.
Thus you observe, first, that by the express words of
the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore,
most people who lend money would, I believe, consider as none at all.
Under this head of the acquisition of property, the
law meets them in every road of industry, and in its
? ? ? ? TRACT ON THE POPERY LAWS. 311
direct and consequential provisions throws almost all
sorts of obstacles in their way. For they are not only
excluded from all offices in Church and State, which,
though a just and necessary provision, is yet no small
restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches.
This point is carried to so scrupulous a severity,
that chamber practice, and even private conveyancing,
the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this:
for every barrister, six clerk, attorney, or solicitor, is
obliged to take a solemn oath not to employ persons
of that persuasion, -- no, not as hackney clerks, at
the miserable salary of seven shillings a week. No
tradesman of that persuasion is capable by any service or settlement to obtain his freedom in any town corporate; so that they trade and work in their own
native towns as aliens, paying, as such, quarterage.
and other charges and impositions. They are expressly forbidden, in whatever employment, to take more than two apprentices, except in the linen manufacture only.
In every state, next to the care of the life and
properties of the subject, the education of their youth
has been a subject of attention. Iln the Irish laws
this point has not been neglected. Those who are
acquainted with the constitution of our universities
need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in
them who do not previously take all the tests, oaths,
and declarations.
d(irect punishment for shall have power to punish any negro for
disorderly
conduct. disorderly conduct during divine service, by
a punishment not exceeding [ten] blows to be given
in one day and for one offence, which the overseer
or his under agent or agents is hereby directed, according to the orders of the said minister, effectually
to inflict, whenever the same shall be ordered.
Spirituous 12. And be it enacted, that no spirituous
liquors not to
be sold. liquors of any kind shall be sold, except in
? ? ? ? SKETCH OF A NEGRO CODE. 281
towns, within ~ miles distance of any church, nor
within any district durirg divine service, and all hour
preceding aind an hour following the same; and the
minister of each parish shall anld is hereby authorized to act as a justice of the peace in enforcing the
said regulation.
13. And be it enacted, that every minis- Regrister of
births, buriter shall keep a register of births, burials, als,and marriages.
and marriages of all negroes and mulattoes
in his district.
14. And be it enacted, that the mlinisters Synod toassemble anof the several districts shall meet annually, nually, and to form reguoll the day of-, in a synod of lations,
the islaiid to which they belong; and the said synod
shall have for its president such person as the Bishop
of London shall appoint for his commissary; and the
said synod or general assembly is hereby authorized,
by a majority of voices, to make regulations, which
regulations shall be transmitted by the said president
or commissary to the Bishop of London; and when
returned by the Bishop of LvTudon approved of, then,
and not before, the said regulations shall be held in
force to bind the said clergy, their assistants, clerks,
land schoolmasters only, and no other persons.
15. And be it enacted, that the said pres- and to report
to the Bishop
ident shall collect matter in the said assem- of London.
bly, and sha,ll make a report of the state of religion
and morals in the several parishes from whence the
synod is deputed, and shall transmit the same, once
in the year, in duplicate, tlhrough the governor and
protector of negroes, to the Bishop of London.
16. And be it enacted and declared, that Bishopof
London to be
the Bishop of London for the time being patron of the
shall be patron to all and every the said
? ? ? ? 282 SKETCH OF A NEGRO CODE.
cures in this act directed; and the said bishop is
hereby required to provide for the due filling thereof, and is to receive, from the fund in this act provided for the due execution of this act, a sum not exceeding. for each of the said ministers, for
his outfit and passage.
and to have 17. And be it enacted, that, on misbehapower of suspending and vior, and on complaint from the said synod,
removing
ministers. and on hearing the party accused in a plain
and summary manner, it shall and may be lawful for
the Bishop of London to suspend or to remove any
minister from his cure, as his said offences shall appear to merit.
Schools for 18. And be it enacted, that for every two
young negroes. ditsricts a school shall be established for
young negroes to be taught three days in the week,
and to be detained from their owner four hours in
each day, the number not to be more or fewer than
twenty males in each district, who shall be chosen,
and vacancies filled, by the minister of the district;
and the said minister shall pay to the owner of the
said boy, and shall be allowed the same in his accounts at the synod, to the age of twelve years old,
three-pence by the day, and for every boy from twelve
years old to fifteen, five-pence by the day.
19. And it is enacted, that, if the president of the
synod aforesaid shall certify to the protector of negroes, that any boys in the said schools (provided
that'the number in no one year shall exceed one in
the island of Jamaica, and one in two years in the
islands of Barbadoes, Antigua, and Grenada, and one
Extraordi- in four years in any of the other islands)
nary abilities
to be ecour- do show a remarkable aptitude for learning,
aged. and
the said protector is hereby authorized and
? ? ? ? SKETCH OF A NEGRO CODE. 283
airected to purchase the said boy at the best rate at
which boys of that age and strength have been sold
within the year; and the said negi'o so purchased
shall be under the entire guardianship of the said
protector of negroes, who shall send him to the
Bishop of London for his further education in England, and may charge in his accounts for the expense
of transporting him to England; and the Bishop of
London shall provide for the education of such of the
said negroes as he shall think proper subjects, until
the age of twenty-four years, and shall order those
who shall fall short of expectation after one year to
be bound apprentice to some handicraft trade; and
when his apprenticeship is finished, the Lord Mayor
of London is hereby authorized and directed to receive the said negro from his master, and to transmit
him to the island from which he came, in the West
Indies, to be there as a free negro, subject, however,
to the direction of the protector of negroes, relatively
to his behavior and employment.
20. And it is hereby enacted and pro- Negroesof
Dissenters;
vided, that any planter, or owner of negroes,
not being of the Church of England, and not choosing to send his negroes to attend divine service in
manner by this act directed, shall give, jointly or severally, as the case shall require, security to the protector of negroes that a competent minister of some Christian church or congregation shall be provided
for the due instruction of the negroes, and for their
performing divine service according to the description
of the religion of the master or masters, in some
church or house thereto allotted, in the manner and
with the regulations in this act prescribed with regard t, the exercise of religion according to the
? ? ? ? 284 SKETCH OF A NEGRO CODE.
their mar- Church of England: provided always, that
riages, &c. ,
to be regis- the marriages of the said negroes belonging
tered.
to Dissenters shall be celebrated only in the
church of the said district, and that a register of the
births shall be transmitted to the minister of the said
district.
Regulations 21. And whereas a state of matrimony,
concernlling
marriage. and the government of a family, is a principal means of forming men to a fitness for freedom, and to become good citizens: Be it enacted, that all
negro men and women, above eighteen years of age
for the man and sixteen for the woman, who have
cohabited together for twelve months or upwards, or
shall cohabit for the same time, and have a child or
children, shall be deemed to all intents and purposes
to be married, and either of the parties is authorized
to require of the ministers of the district to be married in the face of the church.
Concerning 22. And be it enacted, that, from and afthe same.
ter the of, all negro men in
an healthy condition, and so reported to be, in case
the same is denied, by a surgeon and by an inspector
of negroes, and being twenty-one years old, or upwards, until fifty, and not being before married, shall, on requisition of the inspectors, be provided by their
masters or overseers with a woman not having children living, and not exceeding the age of the man, nor, in any case, exceeding the age of twenty-five
years; and such persons shall be married publicly in
the face of the church.
Concerning 23. And be it enacted, that, if any negro
the same.
shall refuse a competent marriage tendered
to him, and shall not demand another specifically,
such as it may be in his master's power to provide,
? ? ? ? SKETCH OF A NEGRO CODE. 285
the master or overseer shall be authorized to constrain
him by an increase of work or a lessening of allowance.
24. And be it enacted, that the minister Adultery,
&c. , how
in each district shall have, with the assent to be punof the inspector, full power and authority
to punish all acts of adultery, unlawful concubinage,
and fornication, amongst negroes, on hearing and a
summary process, by ordering a number of blows,
not exceeding, for each offence; and if any
white person shall be proved, on information in the
supreme court, to be exhibited by the protector of
negroes, to have committed adultery with any negro
woman, or to have corrupted any negro woman under
sixteen years of ago, he shall be fined in the sum of, and shall be forever disabled from serving the office of overseer of negroes, or being attorney to
any plantation.
25. And be it enacted, that no slaves Concerning
shall be compelled to do any work for their
masters for' [three] days after their marriage.
26. And be it enacted, that no woman Concerning
pregnant
shall be obliged to field-work, or any other women.
laborious work, for one month before her delivery, or
for six weeks afterwards.
27. And be it enacted, that no husband Separation
of husband
and wife shall be sold separately, if original- and wife,
and chilly belonging to the same master; nor shall dren, to be
avoided.
any children under sixteen be sold separately from their parents, or one parent, if one be
living.
28. And be it enacted, that, if an husband Concerning
the same.
and wife, which before their intermarriage
belonged to different owners, shall be sold, they shall
? ? ? ? 286 SKETCH OF A NEGRO CODE.
not be sold at such a distance as to prevent mutual
help and cohabitation; and of this distance the minister shall judge, and his certificate of the inconvenient distance shall be valid, so as to make such sale unlawful, and to render the same null and void.
Negroes not 29. And be it enacted, that no negro
to work on
Saturday shall be compelled to work for his owner at
Sunday. field-work, or any service relative to a plantation, or to work at any handicraft trade, from eleven o'clock on Saturday forenoon until the usual working
hour on Monday morning.
Other cases 30. And whereas habits of industry and
of exemption
from labor. sobriety, and the means of acquiring and
preserving property, are proper and reasonable preparatives to freedom, and will secure against an
abuse of the same: Be it enacted, that every negro
man, who shall have served ten years, and is thirty
years of age, and is married, and has had two children born of any marriage, shall obtain the whole of Saturday for himself and his wife, and for his own
benefit, and after thirty-seven years of age, the whole
of Friday for himself and his wife: provided that in
both cases the minister of the district and the inspector of negroes shall certify that they know nothing against his peaceable, orderly, and industrious behavior.
Huts and 31. And be it enacted, that the master
land to be
armpopri- of every plantation shall provide the materials of a good and substantial hut for each
married field negro; and if his plantation shall exceed
acres, he shall allot to the same a portion of
land not less than: and the said hut and land
shall remain and stand annexed to the said negro,
for his natural life, or during his bondage; but the
? ? ? ? SKETCH OF A NEGRO CODE. 287
same shall not be alienated without the consent of
the owners.
32. And be it enacted, that it shall not Property
of negroes
be lawful for the owner of any negro, by secured.
himself or any other, to take from him any land,
house, cattle, goods, or money, acquired by the said
negro, whether by purchase, donation, or testament,
whether the same has been derived from the owner
of the said negro, or any other.
33. And be it enacted, that, if the said negro shall
die possessed of any lands, goods, or chattels, and
dies without leaving a wife or issue, it shall be lawful for the said negro to devise or bequeath the same by his last will; but in case the said negro shall die
intestate, and leave a wife and children, the same
shall be distributed amongst them, according to the
usage under the statute, commonly called the Statute of Distributions; but if the said negro shall die intestate without wife or children, then, and in that
case, his estate shall go to the fund provided for the
better execution of this act.
34. And be it enacted, that no negro, who is married, and hath resided upon any plantation for twelve months, shall be sold, either privately or by the decree of any court, but along with the plantation on which lhe hath resided, unless he should himself request to be separated therefrom.
35. And be it enacted, that no blows or Of th
punishment
stripes exceeding thirteen shall be inflicted of egrres.
for one offence upon any negro, without the order
of one of his Majesty's justices of peace.
36. And it is enacted, that it shall be Of thesame.
lawful for the protector of negroes, as often as on
complaint and hearing he shall be of opinion that
? ? ? ? 288 SKETCH OF A NEGRO CODE.
any negro hath been cruelly and inhumanly treated,
or when it shall be made to appear to him that an
overseer hath any particular malice, to order, at the
desire of the suffering party, the said negro to be
sold to another master.
37. And be it enacted, that, in all cases of injury
to member or life, the offences against a negro shall
be deemed and taken to all intents and purposes
as if the same were perpetrated against any of his
Majesty's subjects; and the protector of negroes, on
complaint, or if he shall receive credible information thereof, shall cause an indictment to be presented for the same; and ill case of suspicion of any
murder of a negro, an inquest by the coroner, or
officer acting as such, shall, if practicable, be held
into the same.
Ofthe man- 38. And in order to a gradual malnumisUmission of
negroes. sion of slaves, as they shall seem fitted to
fill the offices of freemen, be it enacted, that every
negro slave, being thirty years of age and upwards,
and who has had three children born to him il lawful matrimony, and who hath received a certificate
from the minister of his district, or any other Christian teacher, of his regularity ill the duties of religion, and of his orderly and good behavior, may purchase, at rates to be fixed by two justices of peace, the freedom of himself, or his wife or children, or
of any of them separately, valuing the wife and clildren, if purchased into liberty by the father of tlle
family, at half only of their marketable values: provided that the said father shall bind himself in a
penalty of for the good behavior of his children.
Of the same. 39. And be it enacted, that it shall be
? ? ? ? SKETCH OF A NEGRO CODE. 289
lawful for the protector of negroes to purchase the
freedom of any negro who shall appear to him to
excel in any mechanical art, or other knowledge or
practice deemed liberal, and the value shall be settled by a jury.
40. And be it enacted, that the protector Free
negroes
of negroes shall be and is authorized and how tobe
punished
required to act as a magistrate for the coercion of all idle, disobedient, or disorderly free negroes, and he shall by office prosecute them for the offences of idleness, drunkenness, quarrelling, gailing, or vagrancy, in the supreme court, or cause
them to be prosecuted before one justice of peace,
as the case may require.
41. And' be it enacted, that, if any free Ofthe same.
negro hath been twice convicted for any of the said
misdemeanors, and is judged by the said protector'
of negroes, calling to his assistance two justices of
the peace, to be incorrigibly idle, dissolute, and vicious, it shall be lawful, by the order of the said
protector and two justices of peace, to sell the said
free negro into slavery: the purchase-money to be
paid to the person so remanded into servitude, or
kept in hand by the protector and governor for the
benefit of his family.
42. And be it enacted, that the gover- Governorto
receive andI
nor in each colony shall be assistant to the transmit annual reports.
execution of this act, and shall receive the
reports of the protector, and such other accounts as
he shall judge material, relative thereto, and shall
transmit the same annually to one of his Majesty's
principal secretaries of state.
VOL. VI. 19
? ? ? ? A
LETTER
TO
THE CHAIRMAN OF THE BUCKINGHAMSHIRE MEETING,
HELD AT AYLESBURY, APRIL 13, 1780,
ON THE SUBJECT OF
PARLIAMENTARY REFORM.
? ? ? ? NOTE.
THE meeting of the freeholders of the County of Buckingham, which occasioned the following Letter, was called for the purpose of taking into consideration a petition to Parliament for
shortening the duration of Parliaments, and for a more equal
representation of the people in the House of Commons.
? ? ? ? LETTER.
SIR, --Having heard yesterday, by mere accident,
that there is an intention of laying before the
county meeting new matter, which is not contained in
our petition, and the consideration of which had been
deferred to a fitter time by a majority of our committee in London, permit me to take this method of submitting to you my reasons for thinking, with our committee, that nothing ought to be hastily determined upon the subject.
Our petition arose naturally from distresses which
we felt; and the requests which we made were in
effect nothing more than that such things should be
done in Parliament as it was evidently the duty of
Parliament to do. But the affair which will be proposed to you by a person of rank and ability is an
alteration in the constitution of Parliament itself. It
is impossible for you to have a subject before you of
more importance, and that requires a more cool and
more mature consideration, both on its own account,
and for the credit of our sobriety of mind, who are
to resolve upon it.
The county will in some way or other be called
upon to declare it your opinion, that the House of
Commons is not sufficiently numerous, and that the
-elections are not sufficiently frequent, - that an hundred new knights of the shire ought to be added, and
that we are to have a new election once in three
? ? ? ? 294 LETTER TO THE BUCKINGHAMSHIRE MEETING
years for certain, and as much oftener as the king
pleases. Such will be the state of things, if the proposition made shall take effect.
All this may be proper. But, as an honest man, I
cannot possibly give my vote for it, until I have considered it more fully. I will not deny that our Constitution may have faults, and that those faults, when found, ought to be corrected; but, on the whole,
that Constitution has been our own pride, and an
object of admiration to all other nations. It is not
everything which appears at first view to be faulty,
in such a complicated plan, that is to be determined
to be so in reality. To enable us to correct the Constitution, the whole Constitution must be viewed together; and it must be compared with the actual state of the people, and the circumstances of the
time. For that which taken singly and by itself may
appear to be wrong, when considered with relation
to other things, may be perfectly right, - or at least
such as ought to be patiently endured, as the means
of preventing something that is worse. So far with
regard to what at first view may appear a distemper in
the Constitution. As to the remedy of that distemper
an equal caution ought to be used; because this latter consideration is not single and separate, no more
than the former. There are many things in reformation which would be proper to be done, if other things
can be done along with them, but which, if they
cannot be so accompanied, ought not to be done at
all. I therefore wish, when any new matter of this
deep nature is proposed to me, to have the whole
scheme distinctly in my view, and full time to consider of it. Please God, I will walk with caution, whenever I am not able clearly to see my way before me.
? ? ? ? ON PARLIAMENTARY REFORM. 295
I am now growing old. I have from my very early
youth been conversant in reading and thinking upon
the subject of our laws and Constitution, as well as
upon those of other times and other countries; I
have been for fifteen years a very laborious member
of Parliament, and in that time have had great opportunities of seeing with my own eyes the working of
the machine of our government, and remarking where
it went smoothly and did its business, and where it
checked in its movements, or where it damaged its
work; I have also had and used the opportunities of
conversing with men of the greatest wisdom and fullest experience in those matters; and I do declare to
you most solemnly and most truly, that, on the result
of all this reading, thinking, experience, and communication, I am not able to come to an immediate resolutibn in favor of a change of the groundwork of our Constitution, and in particular, that, in the present
state of the country, in the present state of our representation, in the present state of our rights and modes
of electing, in the present state of the several prevalent interests, in the present state of the affairs and
manners of this country, the addition of an hundred
knights of the shire, and hurrying election on election, will be things advantageous to liberty or good
government.
This is the present condition of my mind; and
this is my apology for not going as fast as others may
choose to go in this business. I do not by any means
reject the propositions; much less do I condemn the
gentlemen who, with equal good intentions, with
much better abilities, and with infinitely greater personal weight and consideration than mine, are of
opinion that this matter ought to be decided upon
instantly.
? ? ? ? 296 LETTER TO THE BUCKINGHAMSHIRE MEETING
I most heartily wish that the deliberate sense of
the kingdom on this great subject should be known. When it is known, it must be prevalent. It would
be dreadful indeed, if there was any power in the
nation capable of resisting its unanimous desire, or
even the desire of any very great and decided majority of the people. The people may be deceived in their choice of an object; but I can scarcely conceive any
choice they can make to be so very mischievous as
the existence of any human force capable of resisting
it. It will certainly be the duty of every man, in the
situation to which God has called him, to give his
best opinion and advice upon the matter: it will not
be his duty, let him think what he will, to use allny
violent or any fraudulent means of counteracting the
general wish, or even of employing the legal and
constructive organ of expressing the people's sense
against the sense which they do actually entertain.
In order that the real sense of the people should be
known upon so great an affair as this, it is of absolute
necessity that timely notice should be given, - that
the matter should be prepared in open committees,
fromn a choice into which no class or description of
men is to be excluded, - and the subsequent county
meetings should be as full and as well attended as
possible. Without these precautions, the true sense
of the people will ever be uncertain. Sure I am,
that no precipitate resolution on a great change in
the fundamental constitution of any country can ever
be called the real sense of the people.
I trust it will not be taken amiss, if, as an inhabitant and fireeholder of this county, (one, indeed,
among the most inconsiderable,) I assert my right of
dissenting (as I do dissent fully and directly) from
? ? ? ? ON PARLIAMENTARY REFORM. 297
any resolution whatsoever on the subject of an alteration in the representation and election of the kingdom at this time.
By preserving this right, and exercising it with temper and moderation, I trust I cannot offend the noble proposer, for whom no man
professes or feels more respect and regard than I do.
A want of concurrence in everything which can be
proposed will in no sort weaken the energy or distract the efforts of men of upright intentions upon
those points in which they are agreed. Assemblies
that are met, and with a resolution to be all of a
mind, are assemblies that can have no opinion at all
of their own. The first proposer of any measure
must be their master. I do not know that an amicable variety of sentiment, conducted with mutual
good-will, has any sort of resemblance to discord, or
that it can give any advantage whatsoever to the enemies of our common cause. On the contrary, a
forced and fictitious agreement (which every universal agreement imust be) is not becoming the cause of
freedom. If, however, any evil should arise from it,
(which I confess I do not foresee,) I am happy that
those who have brought forward new and arduous
matter, when very great doubts and some diversity
of opinion must be foreknown, are of authority and
weight enough to stand against the consequences.
I humbly lay these my sentiments before the county. They are not taken up to serve any interests of
my own, or to be subservient to the interests of any
man or set of men under heaven. I could wish to
be able to attend our meeting, or that I had time to
reason this matter more fully by letter; but I am
detained here upon our business: what you have already put upon us is as much as we can do. If we
? ? ? ? 298 LETTER TO THE BUCKINGHAMSHIRE MEETING.
are prevented from going through it with any effect,
I fear it will be in part owing not more to the resistance of the enemies of our cause than to our imposing on ourselves such tasks as no human faculties, employed as we are, can be equal to. Our worthy
members have shown distinguished ability and zeal
in support of our petition. I am just going down to
a bill brought in to frustrate a capital part of your
desires. The minister is preparing to transfer the
cognizance of the public accounts from those whom
you and the Constitution have chosen to control them,
to unknown persons, creatures of his own. For so
much he annihilates Parliament.
I have the honor, &c.
EDMUND BURKE.
CHARLES STREET, 12th April, 1780.
? ? ? ? FRAGMENTS OF A TRACT RELATIVE TO
TIHE LAWS AGAINST POPERY IN IRELAND.
? ? ? ? NOTE.
rHE condition of the Roman Catholics in Ireland appears to
have engaged the attention of Mr. Burke at a very early period
of his political life. It was probably soon after the year 1765
that he formed the plan of a work upon that subject, the fragments of which are now given to the public. No title is prefixed to it in the original manuscript; and the Plan, which it has been thought proper to insert here, was evidently designed
merely for the convenience of the author. Of the first chapter
some unconnected fragments only, too imperfect for publication,
have been found. Of the second there is a considerable portion,
perhaps nearly the whole; but the copy from which it is printed
is evidently a first rough draught. The third chapter, as far as
it goes, is taken from a fair, corrected copy; but the end of the
second part of the first head is left unfinished, and the discussion
of the second and third heads was either never entered upon or
the manuscript containing it has unfortunately been lost. What
follows the third chapter appears to have been designed for the
beginning of the fourth, and is evidently the first rough draught;
and to this we have added a fragment which appears to have
been a part either of this or the first chapter.
In the volume with which it is intended to close this posthumous publication of Mr. Burke's Works, we shall have occasion
to enter into a more particular account of the part which he
took in the discussion of this great political question. At present
it may suffice to say, that the Letter to Mr. Smith, the Second
Letter to Sir Hercules Langrishe, and the Letter to his Son,
which here follow in order the Fragment on the Popery Laws,
are the only writings upon this subject found amongst his papers
in a state fit to appear in this stage of the publication. What
remain are some small fragments of the Tract, and a few letters
containing no new matter of importance.
? ? ? ? ON THE POPERY LAWS. RACT
ON THE POPERY LAWS.
THE PLAN.
PROPOSE, first, to make an Introduction, in order to show the propriety of a closer inspection into the affairs of Ireland; and this takes up the first
chapter, which is to be spent in this introductory matter, and in stating the Popery laws in general, as one leading cause of the imbecility of the country. CH. II. states particularly the laws themselves, in
a plain and popular manner.
CH. III. begins the remarks upon them, under the
heads of, 1st, The object, - which is a numerous people; 2ndly, Their means, - a restraint on property; 3rdly, Their instruments of execution, - corrupted
morals, which affect the national prosperity.
CH. IV. The impolicy of those laws, as they affect the national security.
CH. V. Reasons by which the laws are supported,
and answers to them.
CHAPTER II.
IN order to lay this matter with full satisfaction
before the reader, I shall collect into one point of
view, and state as shortly and as clearly as I am
able, the purport of these laws, according to the
? ? ? ? 302 TRACT ON THE POPERY LAWS.
objects which they affect, without making at present
any further observation upon them, but just what
shall be necessary to render the drift and intention of
the legislature and the tendency and operation of the
laws the more distinct and evident.
I shall begin with those which relate to the possession and inheritance of landed property in Popish
hands. The first operation of those acts upon this
object was wholly to change the course of descent by
the Common Law, to take away the right of primogeniture, and, in lieu thereof, to substitute and establish a new species of Statute Gavelkind. By this
law, on the death of a Papist possessed of an estate
in fee simple or in fee tail, the land is to be divided
by equal portions between all the male children; and
those portions are likewise to be parcelled out, share
and share alike, amongst the descendants of each son,
and so to proceed in a similar distribution ad infinitum. From this regulation it was proposed that some
important consequences should follow. First, by taking away the right of primogeniture, perhaps in the
very first generation, certainly in the second, the
families of Papists, however respectable, and their fortunes, however considerable, would be wholly dissipated, and reduced to obscurity and indigence, without any possibility that they should repair them by their
industry or abilities, -being, as we shall see anon,
disabled from every species of permanent acquisition.
Secondly, by this law the right of testamentation is
taken away, which the inferior tenures had always
enjoyed, and all tenures from the 27th HIen. VIII.
Thirdly, the right of settlement was taken away, that
no such persons should, from the moment the act
passed, be enabled to advance themselves in fortune
? ? ? ? TRACT ON THE POPERY LAWS. 303
or connection by marriage, being disabled from making any disposition, in consideration of such marriage, but what the law had previously regulated: the reputable establishment of the eldest son, as representative of the family, or to settle a jointure, being commonly
the great object in such settlements, which was the
very power which the law had absolutely taken away.
The operation of this law, however certain, might
be too slow. The present possessors might happen to
be long-lived. The legislature knew the natural impatience of expectants, and upon this principle they
gave encouragement to children to anticipate the
inheritance. For it is provided, that the eldest son
of any Papist shall, immediately on his conformity,
change entirely the nature and properties of his father's legal estate: if he before held in fee simple,
or, in other words, had the entire and absolute domillion over the land, he is reduced to an estate for
his life only, with all the consequences of the natural
debility of that estate, by which he becomes disqualified to sell, mortgage, charge, (except for his life,)
or in any wise to do any act by which he may raise
money for relief in his most urgent necessities. The
eldest son, so conforming, immediately acquires, and
in the lifetime of his father, the permanent part, what
our law calls the reversion and inheritance of the
estate; and he discharges it by retrospect, and annuls every sort of voluntary settlement made by the father ever so long before his conversion. This he
may sell or dispose of immediately, and alienate it
from the family forever.
Having thus reduced his father's estate, he may
also bring his father into the Court of Chancery,
where he may compel him to swear to the value of
? ? ? ? 304 TRACT ON THE POPERY LAWS.
his estate, and to allow him out of that possession
(which had been before reduced to an estate for life)
such an immediate annual allowance as the Lord
Chancellor or Lord Keeper shall judge suitable to his
age and quality.
This indulgence is not confined to the eldest son.
The other children likewise, by conformity, may acquire the same privileges, and in the same manner
force from their father an immediate and independent maintenance. It is very well worth remarking,
that the statutes liave avoided to fix any determinate
age for these emancipating conversions; so that the
children, at any age, however incapable of choice in
other respects, however immature or even infantile,
are yet considered sufficiently capable to disinherit
their parents, and totally to subtract themselves from
their direction and control, either at their own option,
or by the instigation of others. By this law the tenure and value of a Roman Catholic in his real property is not only rendered extremely limited and altogether precarious, but the paternal power is in all such families so enervated that it may well be considered as entirely taken away; even the principle upon
which it is founded seems to be directly reversed.
However, the legislature feared that enough was not
yet done upon this head. The Roman Catholic parent, by selling his real estate, might in some sort preserve the dominion over his substance and his family,
and thereby evade the operation of these laws, which
intended to take away -both. Besides, frequent revolutions and many conversions had so broken the
landed property of Papists in that kingdom, that it
was apprehended that this law could have in a short
time but a few objects upon which it would be capa.
ble of operating.
? ? ? ? TRACT ON THE POPERY LAWS. 305
To obviate these inconveniences another law was
made, by which the dominion of children over their
parents was extended universally throughout the
whole Popish part of the nation, and every child of
every Popish parent was encouraged to come into
what is called a court of equity, to prefer a bill
against his father, and compel him to confess, uponl
oath, the quantity and value of his substance, personal as well as real, of what nature soever, or howsoever it might be employed; upon which discovery, the court is empowered to seize upon and allocate, for
the immediate maintenance of such child or children,
any sum not exceeding a third of the whole fortune:
and as to their future establishment on the death of
the father, no limits are assigned; the Chancery may,
if it thinks fit, take the whole property, personal as
well as real, money, stock in trade, &c. , out of the
power of the possessor, and secure it in anly manner
they judge expedient for that purpose; for the act
has not assigned any sort of limit with regard to the
quantity which is to be charged, or given any direction concerning the means of charging and securing
it: a law which supersedes all observation.
But the law is still more extensive in its provision. Because there was a possibility that the parent,
though sworn, might by false representations evade
the discovery of the ultimate value of his estate, a
new bill may be at any time brought, by one, any, or
all of the children, for a further discovery; his effects
are to undergo a fresh scrutiny, and a new distribnution is to be made in consequence of it. So that the
parent has no security against perpetual inquietude,
and the reiteration of Chancery suits, but by (what
is somewhat difficult for human nature to coinply
VOL. VI. 20
? ? ? ? 306 TRACT ON THE POPERY LAWS.
with) fully, and without reserve, abandoning his
whole property to the discretion of the court, to be
disposed of in favor of such children.
But is this enough, and has the parent purchased
his repose by such a surrender? Very far from it.
The law expressly, and very carefully, provides that he
shall not: before he can be secure from the persecution of his children, it requires another and a much
more extraordinary condition: the children are authorized, if they can find that their parent has by
his industry, or otherwise, increased the value of his
property since their first bill, to bring another, compelling a new account of the value of his estate, in
order to a new distribution proportioned to the value
of the estate at the time of the new bill preferred.
They may bring such bills, toties quoties, upon every
improvement of his fortune, without any sort of limitation of time, or regard to the frequency of such
bills, or to the quantity of the increase of the estate,
which shall justify the bringing them. This act expressly provides that he shall have no respite from
the persecution of his children, but by totally aban-. doning all thoughts of improvement and acquisition.
This is going a great way, surely: but the laws in,question have gonle much further. Not satisfied with,callinlg upon children to revolt against their parents,. and to possess themselves of their substance, there:are cases where the withdrawing of the child from his father's obedience is not left to the optioni of the
child himself: for, if the wife of a Roman Catholic
should choose to change her religion, from that moment she deprives her husband of all management
and direction of his childrenl, and even of all the ten,der satisfaction which a parent Call feel in their so
? ? ? ? TRACT ON THE POPERY LAWS. 307
ciety, and which is the only indemnification he can
have for all his cares and sorrows; and they are to
be torn forever, at the earliest age, from his house
and family: for the Lord Chancellor is not only authorized, but he is strongly required, to take away
all his children from such Popish parent, to appoint
where, in what manner, and by whom they are to be
educated; and the father is compelled to pay, not for
the ransom, but for the deprivation of his children,
and to furnish such a sum as the Chancellor thinks
proper to appoint for their education to the age of
eighteen years. The case is the same, if the husband
should be the conformist; though how the law is to
operate in this case I do not see: for the act expressly says, that the child shall be taken from such Popish
parent; and whilst such husband and wife cohabit,
it will be impossible to put it into execution without
taking the child from one as well as from the other;
and then the effect of the law will be, that, if either
husband or wife becomes Protestant, both are to be
deprived of their children.
The paternal power thus being wholly abrogated, it
is evident that by the last regulation the power of an
husband over his wife is also considerably impaired;
because, if it be in her power, whenever she pleases,
to subtract the children from his protection'and obedience, she herself by that hold inevitably acquires a
power and superiority over her husbaind.
But she is not left dependent upon this oblique
influence: for, if in any marriage settlement the husballd has reserved to him a power of making a jointure, and he dies without settling ally, her conformity executes his powers, and executes them in as large
extent as the Chancellor thinks fit. The husband is
? ? ? ? 308 TRACT ON THE POPERY LAWS.
deprived of that coercive power over his wife which
he had in his hands by the use he might make of the
discretionary power reserved in the settlement.
But if no such power had been reserved, and no
such settlement existed, yet, if the husband dies, leav
ing his conforming wife without a fixed provision by
some settlement on his real estate, his wife may apply to Chancery, where she shall be allotted a portion from his leases, and other personal estate, not exceeding one third of his whole clear substance. The laws in this instance, as well as in the former, have presumed that the husband has omitted to make all the provision whlich he might have done, for no other
reason than that of her religion. If, therefore, she
chooses to balance any domestic misdemeanors to
her husband by the public merit of conformity to
the Protestant religion, the law will suffer no plea
of such misdemeanors to be urged on the husband's
part, nor proof of that kind to be entered into. She
acquires a provision totally independent of his favor,
and deprives him of that source of domestic authority
which the Common Law had left to him, that of rewarding or punishing, by a voluntary distribution of
his effects, what in his opinion was the good or ill
behavior of his wife.
Thus the laws stand with regard to the property
already acquired, to its mode of descent, and to family powers. Now as to the new acquisition of real property, and both to the acquisition and security of
personal, the law stands thus:All persons of that persuasion are disabled from
taking or purchasing, directly or by a trust, any
lands, any mortgage upon land, any rents or profits
from land, any lease, interest, or term of any land,
? ? ? ? TRACT ON THE POPERY LAWS. 309
any annuity for life or lives or years, or any estate
whatsoever, chargeable upon, or which may in any
manner affect, any lands.
One exception, and one only, is admitted by the
statutes to the universality of this exclusion, viz. , a
lease for a term not exceeding thirty-one years. But
even this privilege is charged with a prior qualification. This remnant of a right is doubly curtailed:
1st, that on such a short lease a rent not less than
two thirds of the full improved yearly value, at the
time of the making it, shall be reserved during the
whole continuance of the term; and, 2ndly, it does
not extend to the whole kingdom. This lease must
also be in possession, and not in reversion. If any
lease is made, exceeding either in duration or value,
and in the smallest degree, the above limits, the whole
interest is forfeited, and vested ipsofacto in the first
Protestant discoverer or informer. This discoverer,
thus invested with the property, is enabled to sue for
it as his own right. The courts of law are not alone
open to him; he may (and this is the usual method)
enter into either of the courts of equity, and call upon
the parties, and those whom he suspects to be their
trustees, upon oath, and under the penalties of perjury, to discover against themselves the exact nature and value of their estates in every particular, in order
to induce their forfeiture on the discovery. In such
suits the informer is not liable to those delays which
the ordinary procedure of those courts throws into
the way of the justest claimant; nor has the Papist
the indulgence which he [it? ] allows to the most
fraudulent defendant, that of plea and demurrer; but
the defendant is obliged to answer the whole directly
upon oath. The rule offavores ampliandi, &c. , is re
? ? ? ? 810 TRACT ON THE POPERY LAWS.
versed by this act, lest any favor should be shown, or
the force and operation of the law in any part of its
progress be enervated. All issues to be tried on this
act are to be tried by none but known Protestants.
It is here necessary to state as a part of this law
what has been for some time generally understood as
a certain consequence of it. The act had expressly
provided that a Papist could possess no sort of estate
which might affect land (except as before excepted).
On this a difficulty did, not unnaturally, arise. It is
generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to
be delivered unto the creditor until the obligation is
satisfied, under a writ called Elegit, and this writ has
been ever since the ordinary assurance of the land,
and the great foundation of general credit in the
nation. Although the species of holding under this
writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security,
because it may create an estate, however precarious,
in land, their whole debt or charge is forfeited, and
becomes the property of the Protestant informer.
Thus you observe, first, that by the express words of
the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore,
most people who lend money would, I believe, consider as none at all.
Under this head of the acquisition of property, the
law meets them in every road of industry, and in its
? ? ? ? TRACT ON THE POPERY LAWS. 311
direct and consequential provisions throws almost all
sorts of obstacles in their way. For they are not only
excluded from all offices in Church and State, which,
though a just and necessary provision, is yet no small
restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches.
This point is carried to so scrupulous a severity,
that chamber practice, and even private conveyancing,
the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this:
for every barrister, six clerk, attorney, or solicitor, is
obliged to take a solemn oath not to employ persons
of that persuasion, -- no, not as hackney clerks, at
the miserable salary of seven shillings a week. No
tradesman of that persuasion is capable by any service or settlement to obtain his freedom in any town corporate; so that they trade and work in their own
native towns as aliens, paying, as such, quarterage.
and other charges and impositions. They are expressly forbidden, in whatever employment, to take more than two apprentices, except in the linen manufacture only.
In every state, next to the care of the life and
properties of the subject, the education of their youth
has been a subject of attention. Iln the Irish laws
this point has not been neglected. Those who are
acquainted with the constitution of our universities
need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in
them who do not previously take all the tests, oaths,
and declarations.
