Volume VI Part 18 (2/2)
TRACT
ON THE POPERY LAWS
THE PLAN.
I 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 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 subst.i.tute 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 Hen. VIII; Thirdly, the right of settlement was taken away, that no such persons should, from the moment the act pa.s.sed, be enabled to advance themselves in fortune 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 antic.i.p.ate 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 dominion 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 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 ago 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 have avoided to fix any determinate age for these emanc.i.p.ating 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 capable of operating.
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, upon oath, the quant.i.ty 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 a.s.signed; 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 any manner they judge expedient for that purpose; for the act has not a.s.signed any sort of limit with regard to the quant.i.ty 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 now distribution 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 comply 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 quant.i.ty 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 abandoning all thoughts of improvement and acquisition.
This is going a great way, surely: but the laws in question have gone much further. Not satisfied with calling 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 option 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 children, and even of all the tender satisfaction which a parent can feel in their society, 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 husband.
But she is not left dependent upon this oblique influence: for, if in any marriage settlement the husband has reserved to him a power of making a jointure, and he dies without settling any, her conformity executes his powers, and executes them in as large extent as the Chancellor thinks fit. The husband is 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, leaving his conforming wife without a filed 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 which 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 punis.h.i.+ng, 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:--
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