The system which we have just reviewed, and the manner in which
religious influence on the public is made to operate upon the laws
concerning property in Ireland, is in its nature very singular, and
differs, I apprehend, essentially, and perhaps to its disadvantage, from
any scheme of religious persecution now existing in any other country in
Europe, or which has prevailed in any time or nation with which history
has made us acquainted. I believe it will not be difficult to show that
it is unjust, impolitic, and inefficacious; that it has the most unhappy
influence on the prosperity, the morals, and the safety of that country;
that this influence is not accidental, but has flowed as the necessary
and direct consequence of the laws themselves, first on account of the
object which they affect, and next by the quality of the greatest part
of the instruments they employ. Upon all these points, first upon the
general, and then on the particular, this question will be considered
with as much order as can be followed in a matter of itself as involved
and intricate as it is important.
* * * * *
The first and most capital consideration with regard to this, as to
every object, is the extent of it. And here it is necessary to premise,
this system of penalty and incapacity has for its object no small sect
or obscure party, but a very numerous body of men,--a body which
comprehends at least two thirds of that whole nation: it amounts to
2,800,000 souls, a number sufficient for the materials constituent of a
great people. Now it is well worthy of a serious and dispassionate
examination, whether such a system, respecting such an object, be in
reality agreeable to any sound principles of legislation or any
authorized definition of law; for if our reasons or practices differ
from the general informed sense of mankind, it is very moderate to say
that they are at least suspicious.
This consideration of the magnitude of the object ought to attend us
through the whole inquiry: if it does not always affect the reason, it
is always decisive on the importance of the question. It not only makes
in itself a more leading point, but complicates itself with every other
part of the matter, giving every error, minute in itself, a character
and significance from its application. It is therefore not to be
wondered at, if we perpetually recur to it in the course of this essay.
In the making of a new law it is undoubtedly the duty of the legislator
to see that no injustice be done even to an individual: for there is
then nothing to be unsettled, and the matter is under his hands to mould
it as he pleases; and if he finds it untractable in the working, he may
abandon it without incurring any new inconvenience. But in the question
concerning the repeal of an old one, the work is of more difficulty;
because laws, like houses, lean on one another, and the operation is
delicate, and should be necessary: the objection, in such a case, ought
not to arise from the natural infirmity of human institutions, but from
substantial faults which contradict the nature and end of law
itself,--faults not arising from the imperfection, but from the
misapplication and abuse of our reason. As no legislators can regard the
_minima_ of equity, a law may in some instances be a just subject of
censure without being at all an object of repeal. But if its
transgressions against common right and, the ends of just government
should be considerable in their nature and spreading in their effects,
as this objection goes to the root and principle of the law, it renders
it void in its obligatory quality on the mind, and therefore determines
it as the proper object of abrogation and repeal, so far as regards its
civil existence. The objection here is, as we observed, by no means on
account of the imperfection of the law; it is on account of its
erroneous principle: for if this be fundamentally wrong, the more
perfect the law is made, the worse it becomes. It cannot be said to have
the properties of genuine law, even in its imperfections and defects.
The true weakness and opprobrium of our best general constitutions is,
that they cannot provide beneficially for every particular case, and
thus fill, adequately to their intentions, the circle of universal
justice. But where the principle is faulty, the erroneous part of the
law is the beneficial, and justice only finds refuge in those holes and
corners which had escaped the sagacity and inquisition of the
legislator. The happiness or misery of multitudes can never be a thing
indifferent. A law against the majority of the people is in substance a
law against the people itself; its extent determines its invalidity; it
even changes its character as it enlarges its operation: it is not
particular injustice, but general oppression; and can no longer be
considered as a private hardship, which might be borne, but spreads and
grows up into the unfortunate importance of a national calamity.
Now as a law directed against the mass of the nation has not the nature
of a reasonable institution, so neither has it the authority: for in all
forms of government the people is the true legislator; and whether the
immediate and instrumental cause of the law be a single person or many,
the remote and efficient cause is the consent of the people, either
actual or implied; and such consent is absolutely essential to its
validity. To the solid establishment of every law two things are
essentially requisite: first, a proper and sufficient human power to
declare and modify the matter of the law; and next, such a fit and
equitable constitution as they have a right to declare and render
binding. With regard to the first requisite, the human authority, it is
their judgment they give up, not their right. The people, indeed, are
presumed to consent to whatever the legislature ordains for their
benefit; and they are to acquiesce in it, though they do not clearly see
into the propriety of the means by which they are conducted to that
desirable end. This they owe as an act of homage and just deference to a
reason which the necessity of government has made superior to their own.
But though the means, and indeed the nature, of a public advantage may
not always be evident to the understanding of the subject, no one is so
gross and stupid as not to distinguish between a benefit and an injury.
No one can imagine, then, an exclusion of a great body of men, not from
favors, privileges, and trusts, but from the common advantages of
society, can ever be a thing intended for their good, or can ever be
ratified by any implied consent of theirs. If, therefore, at least an
implied human consent is necessary to the existence of a law, such a
constitution cannot in propriety be a law at all.
But if we could suppose that such a ratification was made, not
virtually, but actually, by the people, not representatively, but even
collectively, still it would be null and void. They have no right to
make a law prejudicial to the whole community, even though the
delinquents in making such an act should be themselves the chief
sufferers by it; because it would be-made against the principle of a
superior law, which it is not in the power of any community, or of the
whole race of man, to alter,--I mean the will of Him who gave us our
nature, and in giving impressed an invariable law upon it. It would be
hard to point out any error more truly subversive of all the order and
beauty, of all the peace and happiness of human society, than the
position, that any body of men have a right to make what laws they
please,--or that laws can derive any authority from their institution
merely, and independent of the quality of the subject-matter. No
arguments of policy, reason of state, or preservation of the
constitution can be pleaded in favor of such a practice. They may,
indeed, impeach the frame of that constitution, but can never touch this
immovable principle. This seems to be, indeed, the doctrine which Hobbes
broached in the last century, and which was then so frequently and so
ably refuted. Cicero exclaims with the utmost indignation and contempt
against such a notion:[22] he considers it not only as unworthy of a
philosopher, but of an illiterate peasant; that of all things this was
the most truly absurd, to fancy that the rule of justice was to be taken
from the constitutions of commonwealths, or that laws derived their
authority from the statutes of the people, the edicts of princes, or
the decrees of judges. If it be admitted that it is not the black-letter
and the king's arms that makes the law, we are to look for it elsewhere.
In reality there are two, and only two, foundations of law; and they are
both of them conditions without which nothing can give it any force: I
mean equity and utility. With respect to the former, it grows out of the
great rule of equality, which is grounded upon our common nature, and
which Philo, with propriety and beauty, calls the mother of justice. All
human laws are, properly speaking, only declaratory; they may alter the
mode and application, but have no power over the substance of original
justice. The other foundation of law, which is utility, must be
understood, not of partial or limited, but of general and public
utility, connected in the same manner with, and derived directly from,
our rational nature: for any other utility may be the utility of a
robber, but cannot be that of a citizen,--the interest of the domestic
enemy, and not that of a member of the commonwealth. This present
equality can never be the foundation of statutes which create an
artificial difference between men, as the laws before us do, in order to
induce a consequential inequality in the distribution of justice. Law is
a mode of human action respecting society, and must be governed by the
same rules of equity which govern every private action; and so Tully
considers it in his Offices as the only utility agreeable to that
nature: "_Unum debet esse omnibus propositum, ut eadem sit utilitas
uniuscujusque et universorum; quam si ad se quisque rapiat, dissolvetur
omnis humana consortio_."
If any proposition can be clear in itself, it is this: that a law which
shuts out from all secure and valuable property the bulk of the people
cannot be made for the utility of the party so excluded. This,
therefore, is not the utility which Tully mentions. But if it were true
(as it is not) that the real interest of any part of the community could
be separated from the happiness of the rest, still it would afford no
just foundation for a statute providing exclusively for that interest at
the expense of the other; because it would be repugnant to the essence
of law, which requires that it be made as much as possible for the
benefit of the whole. If this principle be denied or evaded, what ground
have we left to reason on? We must at once make a total change in all
our ideas, and look for a new definition of law. Where to find it I
confess myself at a loss. If we resort to the fountains of
jurisprudence, they will not supply us with any that is for our purpose.
"_Jus_" (says Paulus) "_pluribus modis dicitur: uno modo, cum id, quod
semper æquum et bonum est, jus dicitur, ut est jus naturale"_;--this
sense of the word will not be thought, I imagine, very applicable to our
penal laws;--"_altero modo, quod omnibus aut pluribus in unaquaque
civitate utile est, ut est jus civile_." Perhaps this latter will be as
insufficient, and would rather seem a censure and condemnation of the
Popery Acts than a definition that includes them; and there is no other
to be found in the whole Digest; neither are there any modern writers
whose ideas of law are at all narrower.
It would be far more easy to heap up authorities on this article than to
excuse the prolixity and tediousness of producing any at all in proof of
a point which, though too often practically denied, is in its theory
almost self-evident. For Suarez, handling this very question, _Utrum de
ratione et substantia legis esse ut propter commune bonum feratur_, does
not hesitate a moment, finding no ground in reason or authority to
render the affirmative in the least degree disputable: "_In quæstione
ergo proposita"_ (says he) "_nulla est inter authores controversia; sed
omnium commune est axioma de substantia et ratione legis esse, ut pro
communi bono feratur; ita ut propter illud præcipue tradatur_"; having
observed in another place, "_Contra omnem rectitudinem est bonum commune
ad privatum ordinare, seu totum ad partem propter ipsum referre_."
Partiality and law are contradictory terms. Neither the merits nor the
ill deserts, neither the wealth and importance nor the indigence and
obscurity, of the one part or of the other, can make any alteration in
this fundamental truth. On any other scheme, I defy any man living to
settle a correct standard which may discriminate between equitable rule
and the most direct tyranny. For if we can once prevail upon ourselves
to depart from the strictness and integrity of this principle in favor
even of a considerable party, the argument will hold for one that is
less so; and thus we shall go on, narrowing the bottom of public right,
until step by step we arrive, though after no very long or very forced
deduction, at what one of our poets calls the _enormous faith_,--the
faith of the many, created for the advantage of a single person. I
cannot see a glimmering of distinction to evade it; nor is it possible
to allege any reason for the proscription of so large a part of the
kingdom, which would not hold equally to support, under parallel
circumstances, the proscription of the whole.
I am sensible that these principles, in their abstract light, will not
be very strenuously opposed. Reason is never inconvenient, but when it
comes to be applied. Mere general truths interfere very little with the
passions. They can, until they are roused by a troublesome application,
rest in great tranquillity, side by side with tempers and proceedings
the most directly opposite to them. Men want to be reminded, who do not
want to be taught; because those original ideas of rectitude, to which
the mind is compelled to assent when they are proposed, are not always
as present to it as they ought to be. When people are gone, if not into
a denial, at least into a sort of oblivion of those ideas, when they
know them only as barren speculations, and not as practical motives for
conduct, it will be proper to press, as well as to offer them to the
understanding; and when one is attacked by prejudices which aim to
intrude themselves into the place of law, what is left for us but to
vouch and call to warranty those principles of original justice from
whence alone our title to everything valuable in society is derived? Can
it be thought to arise from a superfluous, vain parade of displaying
general and uncontroverted maxims, that we should revert at this time to
the first principles of law, when we have directly under our
consideration a whole body of statutes, which, I say, are so many
contradictions, which their advocates allow to be so many exceptions
from those very principles? Take them in the most favorable light, every
exception from the original and fixed rule of equality and justice ought
surely to be very well authorized in the reason of their deviation, and
very rare in their use. For, if they should grow to be frequent, in what
would they differ from an abrogation of the rule itself? By becoming
thus frequent, they might even go further, and, establishing themselves
into a principle, convert the rule into the exception. It cannot be
dissembled that this is not at all remote from the case before us, where
the great body of the people are excluded from all valuable
property,--where the greatest and most ordinary benefits of society are
conferred as privileges, and not enjoyed on the footing of common
rights.
The clandestine manner in which those in power carry on such designs is
a sufficient argument of the sense they inwardly entertain of the true
nature of their proceedings. Seldom is the title or preamble of the law
of the same import with the body and enacting part; but they generally
place some other color uppermost, which differs from that which is
afterwards to appear, or at least one that is several shades fainter.
Thus, the penal laws in question are not called laws to oblige men
baptized and educated in Popery to renounce their religion or their
property, but are called laws to prevent the growth of Popery; as if
their purpose was only to prevent conversions to that sect, and not to
persecute a million of people already engaged in it. But of all the
instances of this sort of legislative artifice, and of the principles
that produced it, I never met with any which made a stronger impression
on me than that of Louis the Fourteenth, in the revocation of the Edict
of Nantes. That monarch had, when he made that revocation, as few
measures to keep with public opinion as any man. In the exercise of the
most unresisted authority at home, in a career of uninterrupted victory
abroad, and in a course of flattery equal to the circumstances of his
greatness in both these particulars, he might be supposed to have as
little need as disposition to render any sort of account to the world of
his procedure towards his subjects. But the persecution of so vast a
body of men as the Huguenots was too strong a measure even for the law
of pride and power. It was too glaring a contradiction even to those
principles upon which persecution itself is supported. Shocked at the
naked attempt, he had recourse, for a palliation of his conduct, to an
unkingly denial of the fact which made against him. In the preamble,
therefore, to his Act of Revocation, he sets forth that the Edict of
Nantes was no longer necessary, as the object of it (the Protestants of
his kingdom) were then reduced to a very small number. The refugees in
Holland cried out against this misrepresentation. They asserted, I
believe with truth, that this revocation had driven two hundred thousand
of them out of their country, and that they could readily demonstrate
there still remained six hundred thousand Protestants in France. If this
were the fact, (as it was undoubtedly,) no argument of policy could have
been strong enough to excuse a measure by which eight hundred thousand
men were despoiled, at one stroke, of so many of their rights and
privileges. Louis the Fourteenth confessed, by this sort of apology,
that, if the number had been large, the revocation had been unjust. But,
after all, is it not most evident that this act of injustice, which let
loose on that monarch such a torrent of invective and reproach, and
which threw so dark a cloud over all the splendor of a most illustrious
reign, falls far short of the case in Ireland? The privileges which the
Protestants of that kingdom enjoyed antecedent to this revocation were
far greater than the Roman Catholics of Ireland ever aspired to under a
contrary establishment. The number of their sufferers, if considered
absolutely, is not half of ours; if considered relatively to the body of
each community, it is not perhaps a twentieth part. And then the
penalties and incapacities which grew from that revocation are not so
grievous in their nature, nor so certain in their execution, nor so
ruinous by a great deal to the civil prosperity of the state, as those
which we have established for a perpetual law in our unhappy country. It
cannot be thought to arise from affectation, that I call it so. What
other name can be given to a country which contains so many hundred
thousands of human creatures reduced to a state of the most abject
servitude?
In putting this parallel, I take it for granted that we can stand for
this short time very clear of our party distinctions. If it were enough,
by the use of an odious and unpopular word, to determine the question,
it would be no longer a subject of rational disquisition; since that
very prejudice which gives these odious names, and which is the party
charged for doing so, and for the consequences of it, would then become
the judge also. But I flatter myself that not a few will be found who do
not think that the names of Protestant and Papist can make any change in
the nature of essential justice. Such men will not allow that to be
proper treatment to the one of these denominations which would be
cruelty to the other, and which converts its very crime into the
instrument of its defence: they will hardly persuade themselves that
what was bad policy in France can be good in Ireland, or that what was
intolerable injustice in an arbitrary monarch becomes, only by being
more extended and more violent, an equitable procedure in a country
professing to be governed by law. It is, however, impossible not to
observe with some concern, that there are many also of a different
disposition,--a number of persons whose minds are so formed that they
find the communion of religion to be a close and an endearing tie, and
their country to be no bond at all,--to whom common altars are a better
relation than common habitations and a common civil interest,--whose
hearts are touched with the distresses of foreigners, and are abundantly
awake to all the tenderness of human feeling on such an occasion, even
at the moment that they are inflicting the very same distresses, or
worse, on their fellow-citizens, without the least sting of compassion
or remorse. To commiserate the distresses of all men suffering
innocently, perhaps meritoriously, is generous, and very agreeable to
the better part of our nature,--a disposition that ought by all means to
be cherished. But to transfer humanity from its natural basis, our
legitimate and home-bred connections,--to lose all feeling for those who
have grown up by our sides, in our eyes, the benefit of whose cares and
labors we have partaken from our birth, and meretriciously to hunt
abroad after foreign affections, is such a disarrangement of the whole
system of our duties, that I do not know whether benevolence so
displaced is not almost the same thing as destroyed, or what effect
bigotry could have produced that is more fatal to society. This no one
could help observing, who has seen our doors kindly and bountifully
thrown open to foreign sufferers for conscience, whilst through the same
ports were issuing fugitives of our own, driven from their country for a
cause which to an indifferent person would seem to be exactly similar,
whilst we stood by, without any sense of the impropriety of this
extraordinary scene, accusing and practising injustice. For my part,
there is no circumstance, in all the contradictions of our most
mysterious nature, that appears to be more humiliating than the use we
are disposed to make of those sad examples which seem purposely marked
for our correction and improvement. Every instance of fury and bigotry
in other men, one should think, would naturally fill us with an horror
of that disposition. The effect, however, is directly contrary. We are
inspired, it is true, with a very sufficient hatred for the party, but
with no detestation at all of the proceeding. Nay, we are apt to urge
our dislike of such measures as a reason for imitating them,--and, by an
almost incredible absurdity, because some powers have destroyed their
country by their persecuting spirit, to argue, that we ought to
retaliate on them by destroying our own. Such are the effects, and such,
I fear, has been the intention, of those numberless books which are
daily printed and industriously spread, of the persecutions in other
countries and other religious persuasions.--These observations, which
are a digression, but hardly, I think, can be considered as a departure
from the subject, have detained us some time: we will now come more
directly to our purpose.
It has been shown, I hope with sufficient evidence, that a constitution
against the interest of the many is rather of the nature of a grievance
than of a law; that of all grievances it is the most weighty and
important; that it is made without due authority, against all the
acknowledged principles of jurisprudence, against the opinions of all
the great lights in that science; and that such is the tacit sense even
of those who act in the most contrary manner. These points are, indeed,
so evident, that I apprehend the abettors of the penal system will
ground their defence on an admission, and not on a denial of them. They
will lay it down as a principle, that the Protestant religion is a thing
beneficial for the whole community, as well in its civil interests as in
those of a superior order. From thence they will argue, that, the end
being essentially beneficial, the means become instrumentally so; that
these penalties and incapacities are not final causes of the law, but
only a discipline to bring over a deluded people to their real interest,
and therefore, though they may be harsh in their operation, they will be
pleasant in their effects; and be they what they will, they cannot be
considered as a very extraordinary hardship, as it is in the power of
the sufferer to free himself when he pleases, and that only by
converting to a better religion, which it is his duty to embrace, even
though it were attended with all those penalties from whence in reality
it delivers him: if he suffers, it is his own fault; _volenti non fit
injuria_.
I shall be very short, without being, I think, the less satisfactory, in
my answer to these topics, because they never can be urged from a
conviction of their validity, and are, indeed, only the usual and
impotent struggles of those who are unwilling to abandon a practice
which they are unable to defend. First, then, I observe, that, if the
principle of their final and beneficial intention be admitted as a just
ground for such proceedings, there never was, in the blamable sense of
the word, nor ever can be, such a thing as a religious persecution in
the world. Such an intention is pretended by all men,--who all not only
insist that their religion has the sanction of Heaven, but is likewise,
and for that reason, the best and most convenient to human society. All
religious persecution, Mr. Bayle well observes, is grounded upon a
miserable _petitio principii_. You are wrong, I am right; you must come
over to me, or you must suffer. Let me add, that the great inlet by
which a color for oppression has entered into the world is by one man's
pretending to determine concerning the happiness of another, and by
claiming a right to use what means he thinks proper in order to bring
him to a sense of it. It is the ordinary and trite sophism of
oppression. But there is not yet such a convenient ductility in the
human understanding as to make us capable of being persuaded that men
can possibly mean the ultimate good of the whole society by rendering
miserable for a century together the greater part of it,--or that any
one has such a reversionary benevolence as seriously to intend the
remote good of a late posterity, who can give up the present enjoyment
which every honest man must have in the happiness of his contemporaries.
Everybody is satisfied that a conservation and secure enjoyment of our
natural rights is the great and ultimate purpose of civil society, and
that therefore all forms whatsoever of government are only good as they
are subservient to that purpose to which they are entirely subordinate.
Now to aim at the establishment of any form of government by sacrificing
what is the substance of it, to take away or at least to suspend the
rights of Nature in order to an approved system for the protection of
them, and for the sake of that about which men must dispute forever to
postpone those things about which they have no controversy at all, and
this not in minute and subordinate, but large and principal objects, is
a procedure as preposterous and absurd in argument as it is oppressive
and cruel in its effect. For the Protestant religion, nor (I speak it
with reverence, I am sure) the truth of our common Christianity, is not
so clear as this proposition,--that all men, at least the majority of
men in the society, ought to enjoy the common advantages of it. You
fall, therefore, into a double error: first, you incur a certain
mischief for an advantage which is comparatively problematical, even
though you were sure of obtaining it; secondly, whatever the proposed
advantage may be, were it of a certain nature, the attainment of it is
by no means certain; and such deep gaming for stakes so valuable ought
not to be admitted: the risk is of too much consequence to society. If
no other country furnished examples of this risk, yet our laws and our
country are enough fully to demonstrate the fact: Ireland, after almost
a century of persecution, is at this hour full of penalties and full of
Papists. This is a point which would lead us a great way; but it is only
just touched here, having much to say upon it in its proper place. So
that you have incurred a certain and an immediate inconvenience for a
remote and for a doubly uncertain benefit.--Thus far as to the argument
which would sanctify the injustice of these laws by the benefits which
are proposed to arise from them, and as to that liberty which, by a new
political chemistry, was to be extracted out of a system of oppression.
Now as to the other point, that the objects of these laws suffer
voluntarily: this seems to me to be an insult rather than an argument.
For, besides that it totally annihilates every characteristic and
therefore every faulty idea of persecution, just as the former does, it
supposes, what is false in fact, that it is in a man's moral power to
change his religion whenever his convenience requires it. If he be
beforehand satisfied that your opinion is better than his, he will
voluntarily come over to you, and without compulsion, and then your law
would be unnecessary; but if he is not so convinced, he must know that
it is his duty in this point to sacrifice his interest here to his
opinion of his eternal happiness, else he could have in reality no
religion at all. In the former case, therefore, as your law would be
unnecessary, in the latter it would be persecuting: that is, it would
put your penalty and his ideas of duty in the opposite scales; which is,
or I know not what is, the precise idea of persecution. If, then, you
require a renunciation of his conscience, as a preliminary to his
admission to the rights of society, you annex, morally speaking, an
impossible condition to it. In this case, in the language of reason and
jurisprudence, the condition would be void, and the gift absolute; as
the practice runs, it is to establish the condition, and to withhold the
benefit. The suffering is, then, not voluntary. And I never heard any
other argument, drawn from the nature of laws and the good of human
society, urged in favor of those proscriptive statutes, except those
which have just been mentioned.
FOOTNOTES:
[22] Cicero _de Legibus_, Lib. L 14,15 et 16.--"O rem dignam, in qua non
modo docti, verum etiam agrestes erubescant! Jam vero illud stultissimum
existimare omnia justa esse, quæ scita sint in populorum institutis aut
legibus," etc. "Quod si populorum jussis, si principum decretis, si
sententiis judicum jura constituerentur, jus esset latrocinari, jus
adulterare, jus testamenta falsa supponere, si hæc suffragiis aut scitis
multitudinis probarentur."