The second head upon which I propose to consider those statutes with
regard to their object, and which is the next in importance to the
magnitude, and of almost equal concern in the inquiry into the justice
of these laws, is its possession. It is proper to recollect that this
religion, which is so persecuted in its members, is the old religion of
the country, and the once established religion of the state,--the very
same which had for centuries received the countenance and sanction of
the laws, and from which it would at one time have been highly penal to
have dissented. In proportion as mankind has become enlightened, the
idea of religious persecution, under any circumstances, has been almost
universally exploded by all good and thinking men. The only faint shadow
of difficulty which remains is concerning the introduction of new
opinions. Experience has shown, that, if it has been favorable to the
cause of truth, it has not been always conducive to the peace of
society. Though a new religious sect should even be totally free in
itself from any tumultuous and disorderly zeal, which, however, is
rarely the case, it has a tendency to create a resistance from the
establishment in possession, productive of great disorders, and thus
becomes, innocently indeed, but yet very certainly, the cause of the
bitterest dissensions in the commonwealth. To a mind not thoroughly
saturated with the tolerating maxims of the Gospel, a preventive
persecution, on such principles, might come recommended by strong, and,
apparently, no immoral motives of policy, whilst yet the contagion was
recent, and had laid hold but on a few persons. The truth is, these
politics are rotten and hollow at bottom, as all that are founded upon
any however minute a degree of positive injustice must ever be. But they
are specious, and sufficiently so to delude a man of sense and of
integrity. But it is quite otherwise with the attempt to eradicate by
violence a wide-spreading and established religious opinion. If the
people are in an error, to inform them is not only fair, but charitable;
to drive them is a strain of the most manifest injustice. If not the
right, the presumption, at least, is ever on the side of possession. Are
they mistaken? if it does not fully justify them, it is a great
alleviation of guilt, which may be mingled with their misfortune, that
the error is none of their forging,--that they received it on as good a
footing as they can receive your laws and your legislative authority,
because it was handed down to them from their ancestors. The opinion may
be erroneous, but the principle is undoubtedly right; and you punish
them for acting upon a principle which of all others is perhaps the most
necessary for preserving society, an implicit admiration and adherence
to the establishments of their forefathers.
If, indeed, the legislative authority was on all hands admitted to be
the ground of religious persuasion, I should readily allow that dissent
would be rebellion. In this case it would make no difference whether the
opinion was sucked in with the milk or imbibed yesterday; because the
same legislative authority which had settled could destroy it with all
the power of a creator over his creature. But this doctrine is
universally disowned, and for a very plain reason. Religion, to have
any force on men's understandings, indeed to exist at all, must be
supposed paramount to laws, and independent for its substance upon any
human institution,--else it would be the absurdest thing in the world,
an acknowledged cheat. Religion, therefore, is not believed because the
laws have established it, but it is established because the leading part
of the community have previously believed it to be true. As no water can
rise higher than its spring, no establishment can have more authority
than it derives from its principle; and the power of the government can
with no appearance of reason go further coercively than to bind and hold
down those who have once consented to their opinions. The consent is the
origin of the whole. If they attempt to proceed further, they disown the
foundation upon which their own establishment was built, and they claim
a religious assent upon mere human authority, which has been just now
shown to be absurd and preposterous, and which they in fact confess to
be so.
However, we are warranted to go thus far. The people often actually do
(and perhaps they cannot in general do better) take their religion, not
on the coercive, which is impossible, but on the influencing authority
of their governors, as wise and informed men. But if they once take a
religion on the word of the state, they cannot in common sense do so a
second time, unless they have some concurrent reason for it. The
prejudice in favor of your wisdom is shook by your change. You confess
that you have been wrong, and yet you would pretend to dictate by your
sole authority; whereas you disengage the mind by embarrassing it. For
why should I prefer your opinion of to-day to your persuasion of
yesterday? If we must resort to prepossessions for the ground of
opinion, it is in the nature of man rather to defer to the wisdom of
times past, whose weakness is not before his eyes, than to the present,
of whose imbecility he has daily experience. Veneration of antiquity is
congenial to the human, mind. When, therefore, an establishment would
persecute an opinion in possession, it sets against it all the powerful
prejudices of human nature. It even sets its own authority, when it is
of most weight, against itself in that very circumstance in which it
must necessarily have the least; and it opposes the stable prejudice of
time against a new opinion founded on mutability: a consideration that
must render compulsion in such a case the more grievous, as there is no
security, that, when the mind is settled in the new opinion, it may not
be obliged to give place to one that is still newer, or even, to a
return of the old. But when an ancient establishment begins early to
persecute an innovation, it stands upon quite other grounds, and it has
all the prejudices and presumptions on its side. It puts its own
authority, not only of compulsion, but prepossession, the veneration of
past age, as well as the activity of the present time, against the
opinion only of a private man or set of men. If there be no reason,
there is at least some consistency in its proceedings. Commanding to
constancy, it does nothing but that of which it sets an example itself.
But an opinion at once new and persecuting is a monster; because, in the
very instant in which it takes a liberty of change, it does not leave to
you even a liberty of perseverance.
Is, then, no improvement to be brought into society? Undoubtedly; but
not by compulsion,--but by encouragement,--but by countenance, favor,
privileges, which are powerful, and are lawful instruments. The coercive
authority of the state is limited to what is necessary for its
existence. To this belongs the whole order of criminal law. It considers
as crimes (that is, the object of punishment) trespasses against those
rules for which society was instituted. The law punishes delinquents,
not because they are not good men, but because they are intolerably
wicked. It does bear, and must, with the vices and the follies of men,
until they actually strike at the root of order. This it does in things
actually moral. In all matters of speculative improvement the case is
stronger, even where the matter is properly of human cognizance. But to
consider an averseness to improvement, the not arriving at perfection,
as a crime, is against all tolerably correct jurisprudence; for, if the
resistance to improvement should be great and any way general, they
would in effect give up the necessary and substantial part in favor of
the perfection and the finishing.
But, say the abettors of our penal laws, this old possessed superstition
is such in its principles, that society, on its general principles,
cannot subsist along with it. Could a man think such an objection
possible, if he had not actually heard it made,--an objection
contradicted, not by hypothetical reasonings, but the clear evidence of
the most decisive facts? Society not only exists, but flourishes at this
hour, with this superstition, in many countries, under every form of
government,--in some established, in some tolerated, in others upon an
equal footing. And was there no civil society at all in these kingdoms
before the Reformation? To say it was not as well constituted as it
ought to be is saying nothing at all to the purpose; for that assertion
evidently regards improvement, not existence. It certainly did then
exist; and it as certainly then was at least as much to the advantage of
a very great part of society as what we have brought in the place of it:
which is, indeed, a great blessing to those who have profited of the
change; but to all the rest, as we have wrought, that is, by blending
general persecution with partial reformation, it is the very reverse. We
found the people heretics and idolaters; we have, by way of improving
their condition, rendered them slaves and beggars: they remain in all
the misfortune of their old errors, and all the superadded misery of
their recent punishment. They were happy enough, in their opinion at
least, before the change; what benefits society then had, they partook
of them all. They are now excluded from those benefits; and, so far as
civil society comprehends them, and as we have managed the matter, our
persecutions are so far from being necessary to its existence, that our
very reformation is made in a degree noxious. If this be improvement,
truly I know not what can be called a depravation of society.
But as those who argue in this manner are perpetually shifting the
question, having begun with objecting, in order to give a fair and
public color to their scheme, to a toleration of those opinions as
subversive of society in general, they will surely end by abandoning the
broad part of the argument, and attempting to show that a toleration of
them is inconsistent with the established government among us. Now,
though this position be in reality as untenable as the other, it is not
altogether such an absurdity on the face of it. All I shall here observe
is, that those who lay it down little consider what a wound they are
giving to that establishment for which they pretend so much zeal.
However, as this is a consideration, not of general justice, but of
particular and national policy, and as I have reserved a place
expressly, where it will undergo a thorough discussion, I shall not here
embarrass myself with it,--being resolved to preserve all the order in
my power, in the examination of this important, melancholy subject.
However, before we pass from this point concerning possession, it will
be a relaxation of the mind, not wholly foreign to our purpose, to take
a short review of the extraordinary policy which has been held with
regard to religion in that kingdom, from the time our ancestors took
possession of it. The most able antiquaries are of opinion, and
Archbishop Usher, whom I reckon amongst the first of them, has, I think,
shown, that a religion not very remote from the present Protestant
persuasion was that of the Irish before the union of that kingdom to the
crown of England. If this was not directly the fact, this at least seems
very probable, that Papal authority was much lower in Ireland than in
other countries. This union was made under the authority of an arbitrary
grant of Pope Adrian, in order that the Church of Ireland should be
reduced to the same servitude with those that were nearer to his see. It
is not very wonderful that an ambitious monarch should make use of any
pretence in his way to so considerable an object. What is extraordinary
is, that for a very long time, even quite down to the Reformation, and
in their most solemn acts, the kings of England founded their title
wholly on this grant: they called for obedience from the people of
Ireland, not on principles of subjection, but as vassals and mesne lords
between them and the Popes; and they omitted no measure of force or
policy to establish that Papal authority, with all the distinguishing
articles of religion connected with it, and to make it take deep root in
the minds of the people. Not to crowd instances unnecessary, I shall
select two, one of which is in print, the other on record,--the one a
treaty, the other an act of Parliament. The first is the submission of
the Irish chiefs to Richard the Second, mentioned by Sir John Davies. In
this pact they bind themselves for the future to preserve peace and
allegiance to the kings of England, under certain pecuniary penalties.
But what is remarkable, these fines were all covenanted to be paid into
the Apostolical Chamber, supposing the Pope as the superior power, whose
peace was broken and whose majesty was violated in disobeying his
governor. By this time, so far as regarded England, the kings had
extremely abridged the Papal power in many material particulars: they
had passed the Statute of Provisors, the Statute of _Præmunire_,--and,
indeed, struck out of the Papal authority all things, at least, that
seemed to infringe on their temporal independence. In Ireland, however,
their proceeding was directly the reverse: there they thought it
expedient to exalt it at least as high as ever: for, so late as the
reign of Edward the Fourth, the following short, but very explicit, act
of Parliament was passed:--
IV. ED. Cap. 3.
"An act, whereby letters patent of pardon from the king to
those that sue to Rome for certain benefices is void. Rot.
Parl.
"Item, At the request of the commons, it is ordeyned and
established, by authority of the said Parliament, that all
maner letters patents of the king, of pardons or pardon
granted by the king, or hereafter to be granted, to any
provisor that claim any title by the bulls of the Pope to any
maner benefices, where, at the time of the impetrating of the
said bulls of provision, the benefice is full of an
incumbent, that then the said letters patents of pardon or
pardons be void in law and of none effect."
When, by every expedient of force and policy, by a war of some
centuries, by extirpating a number of the old, and by bringing in a
number of new people full of those opinions and intending to propagate
them, they had fully compassed their object, they suddenly took another
turn,--commenced an opposite persecution, made heavy laws, carried on
mighty wars, inflicted and suffered the worst evils, extirpated the mass
of the old, brought in new inhabitants; and they continue at this day an
oppressive system, and may for four hundred years to come, to eradicate
opinions which by the same violent means they had been four hundred
years endeavoring by every means to establish. They compelled the people
to submit, by the forfeiture of all their civil rights, to the Pope's
authority, in its most extravagant and unbounded sense, as a giver of
kingdoms; and now they refuse even to tolerate them in the most moderate
and chastised sentiments concerning it. No country, I believe, since
the world began, has suffered so much on account of religion, or has
been so variously harassed both for Popery and for Protestantism.
It will now be seen, that, even if these laws could be supposed
agreeable to those of Nature in these particulars, on another and almost
as strong a principle they are yet unjust, as being contrary to positive
compact, and the public faith most solemnly plighted. On the surrender
of Limerick, and some other Irish garrisons, in the war of the
Revolution, the Lords Justices of Ireland and the commander-in-chief of
the king's forces signed a capitulation with the Irish, which was
afterwards ratified by the king himself by _inspeximus_ under the great
seal of England. It contains some public articles relative to the whole
body of the Roman Catholics in that kingdom, and some with regard to the
security of the greater part of the inhabitants of five counties. What
the latter were, or in what manner they were observed, is at this day of
much less public concern. The former are two,--the first and the ninth.
The first is of this tenor:--"The Roman Catholics of this kingdom
[Ireland] shall enjoy such privileges in the exercise of their religion
as are consistent with the laws of Ireland, or as they did enjoy in the
reign of King Charles the Second. And their Majesties, as soon as
affairs will permit them to summon a Parliament in this kingdom, will
endeavor to procure the said Roman Catholics such farther security in
that particular as may preserve them from any disturbance upon the
account of their said religion." The ninth article is to this
effect:--"The oath to be administered to such Roman Catholics as submit
to their Majesties' government shall be the oath abovesaid, and no
other,"--viz., the oath of allegiance, made by act of Parliament in
England, in the first year of their then Majesties; as required by the
second of the Articles of Limerick. Compare this latter article with the
penal laws, as they are stated in the Second Chapter, and judge whether
they seem to be the public acts of the same power, and observe whether
other oaths are tendered to them, and under what penalties. Compare the
former with the same laws, from the beginning to the end, and judge
whether the Roman Catholics have been preserved, agreeably to the sense
of the article, from any disturbance upon account of their religion,--or
rather, whether on that account there is a single right of Nature or
benefit of society which has not been either totally taken away or
considerably impaired.
But it is said, that the legislature was not bound by this article, as
it has never been ratified in Parliament. I do admit that it never had
that sanction, and that the Parliament was under no obligation to ratify
these articles by any express act of theirs But still I am at a loss how
they came to be the less valid, on the principles of our Constitution,
by being without that sanction. They certainly bound the king and his
successors. The words of the article do this, or they do nothing; and so
far as the crown had a share in passing those acts, the public faith was
unquestionably broken. In Ireland such a breach on the part of the crown
was much more unpardonable in administration than it would have been
here. They have in Ireland a way of preventing any bill even from
approaching the royal presence, in matters of far less importance than
the honor and faith of the crown and the well-being of a great body of
the people. For, besides that they might have opposed the very first
suggestion of it in the House of Commons, it could not be framed into a
bill without the approbation of the Council in Ireland. It could not be
returned to them again without the approbation of the King and Council
here. They might have met it again in its second passage through that
House of Parliament in which it was originally suggested, as well as in
the other. If it had escaped them through all these mazes, it was again
to come before the Lord Lieutenant, who might have sunk it by a refusal
of the royal assent. The Constitution of Ireland has interposed all
those checks to the passing of any constitutional act, however
insignificant in its own nature. But did the administration in that
reign avail themselves of any one of those opportunities? They never
gave the act of the eleventh of Queen Anne the least degree of
opposition in any one stage of its progress. What is rather the fact,
many of the queen's servants encouraged it, recommended it, were in
reality the true authors of its passing in Parliament, instead of
recommending and using their utmost endeavor to establish a law directly
opposite in its tendency, as they were bound to do by the express letter
of the very first article of the Treaty of Limerick. To say nothing
further of the ministry, who in this instance most shamefully betrayed
the faith of government, may it not be a matter of some degree of doubt,
whether the Parliament, who do not claim a right of dissolving the force
of moral obligation, did not make themselves a party in this breach of
contract, by presenting a bill to the crown in direct violation of those
articles so solemnly and so recently executed, which by the
Constitution they had full authority to execute?
It may be further objected, that, when the Irish requested the
ratification of Parliament to those articles, they did, in effect,
themselves entertain a doubt concerning their validity without such a
ratification. To this I answer, that the collateral security was meant
to bind the crown, and to hold it firm to its engagements. They did not,
therefore, call it a _perfecting_ of the security, but an _additional_
security, which it could not have been, if the first had been void; for
the Parliament could not bind itself more than the crown had bound
itself. And if all had made but _one_ security, neither of them could be
called _additional_ with propriety or common sense. But let us suppose
that they did apprehend there might have been something wanting in this
security without the sanction of Parliament. They were, however,
evidently mistaken; and this surplusage of theirs did not weaken the
validity of the single contract, upon the known principle of law, _Non
solent, quæ abundant, vitiare scripturas_. For nothing is more evident
than that the crown was bound, and that no act can be made without the
royal assent. But the Constitution will warrant us in going a great deal
further, and in affirming, that a treaty executed by the crown, and
contradictory of no preceding law, is full as binding on the whole body
of the nation as if it had twenty times received the sanction of
Parliament; because the very same Constitution which has given to the
Houses of Parliament their definite authority has also left in the crown
the trust of making peace, as a consequence, and much the best
consequence, of the prerogative of making war. If the peace was ill
made, my Lord Galmoy, Coningsby, and Porter, who signed it, were
responsible; because they were subject to the community. But its own
contracts are not subject to it: it is subject to them; and the compact
of the king acting constitutionally was the compact of the nation.
Observe what monstrous consequences would result from a contrary
position. A foreign enemy has entered, or a strong domestic one has
arisen in the nation. In such events the circumstances may be, and often
have been, such that a Parliament cannot sit. This was precisely the
case in that rebellion in Ireland. It will be admitted also, that their
power may be so great as to make it very prudent to treat with them, in
order to save effusion of blood, perhaps to save the nation. Now could
such a treaty be at all made, if your enemies, or rebels, were fully
persuaded, that, in these times of confusion, there was no authority in
the state which could hold out to them an inviolable pledge for their
future security, but that there lurked in the Constitution a dormant,
but irresistible power, who would not think itself bound by the ordinary
subsisting and contracting authority, but might rescind its acts and
obligations at pleasure? This would be a doctrine made to perpetuate and
exasperate war; and on that principle it directly impugns the law of
nations, which is built upon this principle, that war should be softened
as much as possible, and that it should cease as soon as possible,
between contending parties and communities. The king has a power to
pardon individuals. If the king holds out his faith to a robber, to come
in on a promise of pardon, of life and estate, and, in all respects, of
a full indemnity, shall the Parliament say that he must nevertheless be
executed, that his estate must be forfeited, or that he shall be
abridged of any of the privileges which he before held as a subject?
Nobody will affirm it. In such a case, the breach of faith would not
only be on the part of the king who assented to such an act, but on the
part of the Parliament who made it. As the king represents the whole
contracting capacity of the nation, so far as his prerogative
(unlimited, as I said before, by any precedent law) can extend, he acts
as the national procurator on all such occasions. What is true of a
robber is true of a rebel; and what is true of one robber or rebel is as
true, and it is a much more important truth, of one hundred thousand.
To urge this part of the argument further is, indeed, I fear, not
necessary, for two reasons: first, that it seems tolerably evident in
itself; and next, that there is but too much ground to apprehend that
the actual ratification of Parliament would, in the then temper of
parties, have proved but a very slight and trivial security. Of this
there is a very strong example in the history of those very articles:
for, though the Parliament omitted in the reign of King William to
ratify the first and most general of them, they did actually confirm the
second and more limited, that which related to the security of the
inhabitants of those five counties which were in arms when the treaty
was made.