R. B. McDowell and William B. Todd (eds), The Writings and Speeches of Edmund Burke, Vol. 9: I: The Revolutionary War, 1794-1797; II: Ireland
Chapter III.Part I.
The system which we have just reviewed, and the manner in which religious influence on the Publick 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 shew that it is unjust, impolitick, 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 pg 453object 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.1 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 enquiry; 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 misapplica-tion and abuse of our reason. As no Legislators can regard the minima of pg 454Equity, 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 pg 455owe 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 publick 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 favours, 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 favour of such a practice. They may indeed impeach the frame of that Constitution; but can never touch this immoveable principle. This seems to be indeed the doctrine which Hobbs1 broached in the last century, and which was then so frequently and so ably refuted.2 Cicero exclaims with the utmost indignation and contempt against such a notion;* he considers it not pg 456only 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 Arms1 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.2 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 publick 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 domestick 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 unius cujusq; et universorum, quam si ad se quisq; rapiat, dissolvetur omnis humana consortio.3
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 pg 457not 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 expence 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)1 pluribus modis dicitur; unum est, cum id, quod semper aequum 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 moda, quod omnibus aut pluribus in unaquaq; civitate utile est ut est Jus civile.2 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,3 handling this very question, utrum de ratione et substantia Legis esse ut propter commune bonum feratur,4 does not hesitate a moment, finding no ground, in reason or authority, to render the affirmative in the last decree disputable: In questione ergo proposita (says he) nulla est inter authores controversia; sed omnium commune est axioma de substantia et ratione Legis esse ut pro communi bona feratur ita ut propter illud precipue tradatur,5 having observed, in another place, contra omnem rectitudinem est bonum commune ad privatum ordinare, seu totum ad partem pg 458propter ipsum referre.1 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 favour 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 publick 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;2 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 every thing 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 pg 459principles 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 favourable 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 colour 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 XIVth,1 in the revocation of the Edict of Nantz.2 That monarch had, when he made that revocation, as few measures to keep with publick 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 flatten? 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 Hugonots, was too strong a measure even for the law of pride pg 460and 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 Nantz was no longer necessary, as the object of it (the Protestants of his kingdom) were then reduced to a very small number.1 The refugees in Holland cried out against this misrepresentation. They asserted, I believe with truth, that this revocation had driven 200,000 of them out of their country; and that they could readily demonstrate, there still remained 600,000 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 800,000 men were despoiled, at one stroke, of so many of their rights and privileges. Louis XIVth 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 splendour of a most illustrious reign, falls far short of the case in Ireland? The privileges which the Protestants of that kingdom enjoyed precedent to this revocation, were far greater than the Roman Catholicks 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 pg 461subject 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, of the benefit of whose cares and labours 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 can 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 impropriety of this extraordinary scene, accusing, and practising injustice. For my part, there is no circumstance, in all the contradictions of our most mysterious pg 462nature, 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.1 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 shewn, I hope with sufficient evidence, that a Constitution against the interest of the many, is rather of the nature of a grievance than 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 incapac-ities 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 pg 463pleases; 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 sit injuria.1
I shall be very short, without being, I think, the less satisfactory, in my answer to these topicks, 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 blameable sense of the word, nor never 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 persecu-tion, Mr. Bayle well observes, is grounded upon a miserable petitio principii.2 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 colour 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. Every body 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 pg 464establishment 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 for ever, 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 effects: 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 risque is of too much consequence to society. If no other Country furnished examples of this risque, yet our Laws and our Country is 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 they proposed to arise from them, and as to that liberty which, by their 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 characteristick, 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, pg 465it 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 favour of those prescriptive Statutes, except those which have just been mentioned.
* Cicero de Legibus, lib. prim. 15 et 16. O rem dignam, in quâ non modo docti, verum etiam agrestes erubescant! Jam vero illud stultissimum existimare omnia justa esse, quae scita sunt in populorum institutis aut legibus, et c. Quod si populorum jussis, si principum decretis, si sententiis judicum jura constituerentur, jus esset latrocinari, jus adulterare, jus testamenta falsa supponere, si haec suffragiis aut scitis multitudinis probarentur.3