Volume VI Part 19 (1/2)

All persons of that persuasion are disabled from taking or purchasing, directly or by a trust, any lands, any mortgage upon land, any rents or profits from land, any lease, interest, or term of any land, any annuity for life or lives or years, or any estate whatsoever, chargeable upon, or which may in any manner affect, any lands.

One exception, and one only, is admitted by the statutes to the universality of this exclusion, viz., a lease for a term not exceeding thirty-one years. But even this privilege is charged with a prior qualification. This remnant of a right is doubly curtailed: 1st, that on such a short lease a rent not less than two thirds of the full improved yearly value, at the time of the making it, shall be reserved during the whole continuance of the term; and, 2ndly, it does not extend to the whole kingdom. This lease must also be in possession, and not in reversion. If any lease is made, exceeding either in duration or value, and in the smallest degree, the above limits, the whole interest is forfeited, and vested _ipso facto_ in the first Protestant discoverer or informer. This discoverer, thus invested with the property, is enabled to sue for it as his own right. The courts of law are not alone open to him; he may (and this is the usual method) enter into either of the courts of equity, and call upon the parties, and those whom he suspects to be their trustees, upon oath, and under the penalties of perjury, to discover against themselves the exact nature and value of their estates in every particular, in order to induce their forfeiture on the discovery. In such suits the informer is not liable to those delays which the ordinary procedure of those courts throws into the way of the justest claimant; nor has the Papist the indulgence which he [it?]

allows to the most fraudulent defendant, that of plea and demurrer; but the defendant is obliged to answer the whole directly upon oath. The rule of _favores ampliandi,_ &c., is reversed by this act, lest any favor should be shown, or the force and operation of the law in any part of its progress be enervated. All issues to be tried on this act are to be tried by none but known Protestants.

It is here necessary to state as a part of this law what has been for some time generally understood as a certain consequence of it. The act had expressly provided that a Papist could possess no sort of estate which might affect land (except as before excepted). On this a difficulty did, not unnaturally, arise. It is generally known, a judgment being obtained or acknowledged for any debt, since the statute of Westm. 2, 13 Ed. I. c. 18, one half of the debtor's land is to be delivered unto the creditor until the obligation is satisfied, under a writ called _Elegit_, and this writ has been ever since the ordinary a.s.surance of the land, and the great foundation of general credit in the nation. Although the species of holding under this writ is not specified in the statute, the received opinion, though not juridically delivered, has been, that, if they attempt to avail themselves of that security, because it may create an estate, however precarious, in land, their whole debt or charge is forfeited, and becomes the property of the Protestant informer. Thus you observe, first, that by the express words of the law all possibility of acquiring any species of valuable property, in any sort connected with land, is taken away; and, secondly, by the construction all security for money is also cut off. No security is left, except what is merely personal, and which, therefore, most people who lend money would, I believe, consider as none at all.

Under this head of the acquisition of property, the law meets them in every road of industry, and in its direct and consequential provisions throws almost all sorts of obstacles in their way. For they are not only excluded from all offices in Church and State, which, though a just and necessary provision, is yet no small restraint in the acquisition, but they are interdicted from the army, and the law, in all its branches.

This point is carried to so scrupulous a severity, that chamber practice, and even private conveyancing, the most voluntary agency, are prohibited to them under the severest penalties and the most rigid modes of inquisition. They have gone beyond even this: for every barrister, six clerk, attorney, or solicitor, is obliged to take a solemn oath not to employ persons of that persuasion,--no, not as hackney clerks, at the miserable salary of seven s.h.i.+llings a week. No tradesman of that persuasion is capable by any service or settlement to obtain his freedom in any town corporate; so that they trade and work in their own native towns as aliens, paying, as such, quarterage, and other charges and impositions. They are expressly forbidden, in whatever employment, to take more than two apprentices, except in the linen manufacture only.

In every state, next to the care of the life and properties of the subject, the education of their youth has been a subject of attention.

In the Irish laws this point has not been neglected. Those who are acquainted with the const.i.tution of our universities need not be informed that none but those who conform to the Established Church can be at all admitted to study there, and that none can obtain degrees in them who do not previously take all the tests, oaths, and declarations.

Lest they should be enabled to supply this defect by private academies and schools of their own, the law has armed itself with all its terrors against such a practice. Popish schoolmasters of every species are proscribed by those acts, and it is made felony to teach even in a private family. So that Papists are entirely excluded from an education in any of our authorized establishments for learning at home. In order to shut up every avenue to instruction, the act of King William in Ireland has added to this restraint by precluding them from all foreign education.

This act is worthy of attention on account of the singularity of some of its provisions. Being sent for education to any Popish school or college abroad, upon conviction, incurs (if the party sent has any estate of inheritance) a kind of unalterable and perpetual outlawry. The tender and incapable age of such a person, his natural subjection to the will of others, his necessary, unavoidable ignorance of the laws, stands for nothing in his favor. He is disabled to sue in law or equity; to be guardian, executor, or administrator; he is rendered incapable of any legacy or deed of gift; he forfeits all his goods and chattels forever; and he forfeits for his life all his lands, hereditaments, offices, and estate of freehold, and all trusts, powers, or interests therein. All persons concerned in sending them or maintaining them abroad, by the least a.s.sistance of money or otherwise, are involved in the same disabilities, and subjected to the same penalties.

The mode of conviction is as extraordinary as the penal sanctions of this act. A justice of peace, upon information that any child is sent away, may require to be brought before him all persons charged or even suspected of sending or a.s.sisting, and examine them and other persons on oath concerning the fact. If on this examination he finds it _probable_ that the party was sent contrary to this act, he is then, to bind over the parties and witnesses in any sum he thinks fit, but not less than two hundred pounds, to appear and take their trial at the next quarter sessions. Here the justices are to reexamine evidence, until they arrive, as before, to what shall appear to them a probability. For the rest they resort to the accused: if they can prove that any person, or any money, or any bill of exchange, has been sent abroad by the party accused, they throw the proof upon him to show for what innocent purposes it was sent; and on failure of such proof, he is subjected to all the above-mentioned penalties. Half the forfeiture is given to the crown; the other half goes to the informer.

It ought here to be remarked, that this mode of conviction not only concludes the party has failed in his expurgatory proof, but it is sufficient also to subject to the penalties and incapacities of the law the infant upon whose account the person has been so convicted. It must be confessed that the law has not left him without some species of remedy in this case apparently of much hards.h.i.+p, where one man is convicted upon evidence given against another, if he has the good fortune to live; for, within a twelvemonth after his return, or his age of twenty-one, he has a, right to call for a new trial, in which he also is to undertake the negative proof, and to show by sufficient evidence that he has not been sent abroad against the intention of the act. If he succeeds in this difficult exculpation, and demonstrates his innocence to the satisfaction of the court, he forfeits all his goods and chattels, and all the profits of his lands incurred and received before such acquittal; but he is freed from all other forfeitures, and from all subsequent incapacities. There is also another method allowed by the law in favor of persons under such unfortunate circ.u.mstances, as in the former case for their innocence, in this upon account of their expiation: if within six months after their return, with the punctilious observation of many ceremonies, they conform to the Established Church, and take all the oaths and subscriptions, the legislature, in consideration of the incapable age in which they were sent abroad, of the merit of their early conformity, and to encourage conversions, only confiscates, as in the former case, the whole personal estate, and the profits of the real; in all other respects, restoring and rehabilitating the party.

So far as to property and education. There remain some other heads upon which the acts have changed the course of the Common Law; and first, with regard to the right of self-defence, which consists in the use of arms. This, though one of the rights by the law of Nature, yet is so capable of abuses that it may not be unwise to make some regulations concerning them; and many wise nations have thought proper to set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on occasion of some imminent danger to the public from foreign invasion or domestic commotions.

But provisions in time of trouble proper, and perhaps necessary, may become in time of profound peace a scheme of tyranny. The method which the statute law of Ireland has taken upon this delicate article is, to get rid of all difficulties at once by an universal prohibition to all persons, at all times, and under all circ.u.mstances, who are not Protestants, of using or keeping any kind of weapons whatsoever. In order to enforce this regulation, the whole spirit of the Common Law is changed, very severe penalties are enjoined, the largest powers are vested in the lowest magistrates. Any two justices of peace, or magistrates of a town, with or without information, at their pleasure, by themselves or their warrant, are empowered to enter and search the house of any Papist, or even of any other person, whom they suspect to keep such arms in trust for them. The only limitation to the extent of this power is, that the search is to be made between the rising and setting of the sun: but even this qualification extends no further than to the execution of the act in the open country; for in all cities and their suburbs, in towns corporate and market-towns, they may at their discretion, and without information, break open houses and inst.i.tute such search at any hour of the day or night. This, I say, they may do at their discretion; and it seems a pretty ample power in the hands of such magistrates. However, the matter does by no means totally rest on their discretion. Besides the discretionary and occasional search, the statute has prescribed one that is general and periodical. It is to be made annually, by the warrant of the justices at their midsummer quarter sessions, by the high and petty constables, or any others whom they may authorize, and by all corporate magistrates, in all houses of Papists, and every other where they suspect arms for the use of such persons to be concealed, with the same powers, in all respects, which attend the occasional search. The whole of this regulation, concerning both the general and particular search, seems to have been made by a legislature which was not at all extravagantly jealous of personal liberty. Not trusting, however, to the activity of the magistrate acting officially, the law has invited all voluntary informers by considerable rewards, and even pressed involuntary informers into this service by the dread of heavy penalties. With regard to the latter method, two justices of peace, or the magistrate of any corporation, are empowered to summon before them any persons whatsoever, to tender them an oath by which they oblige them to discover all persons who have any arms concealed contrary to law. Their refusal or declining to appear, or, appearing, their refusal to inform, subjects them to the severest penalties. If peers or peeresses are summoned (for they may be summoned by the bailiff of a corporation of six cottages) to perform this honorable service, and refuse to inform, the first offence is three hundred pounds penalty; the second is _praemunire_,--that is to say, imprisonment for life, and forfeiture of all their goods. Persons of an inferior order are, for the first offence, fined thirty pounds; for the second, they, too, are subjected to _praemunire_. So far as to involuntary;--now as to voluntary informers: the law ent.i.tles them to half the penalty incurred by carrying or keeping arms; for, on conviction of this offence, the penalty upon persons, of whatever substance, is the sum of fifty pounds and a year's imprisonment, which cannot be remitted even by the crown.

The only exception to this law is a license from the Lord Lieutenant and Council to carry arms, which, by its nature, is extremely limited, and I do not suppose that there are six persons now in the kingdom who have been fortunate enough to obtain it.

There remains, after this system concerning property and defence, to say something concerning the exercise of religion, winch is carried on in all persuasions, but especially in the Romish, by persons appointed for that purpose. The law of King William and Queen Anne ordered all Popish parsons exercising ecclesiastical jurisdiction, all orders of monks and friars, and all priests, not then actually in parishes, and to be registered, to be banished the kingdom; and if they should return from exile, to be hanged, drawn, and quartered. Twenty pounds reward is given for apprehending them. Penalty on harboring and concealing.

As all the priests then in being and registered are long since dead, and as these laws are made perpetual, every Popish priest is liable to the law.

The reader has now before him a tolerably complete view of the Popery laws relative to property by descent or acquisition, to education, to defence, and to the free exercise of religion, which may be necessary to enable him to form some judgment of the spirit of the whole system, and of the subsequent reflections that are to be made upon it.

CHAPTER III.

PART I.

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 const.i.tuent of a great people. Now it is well worthy of a serious and dispa.s.sionate 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 inst.i.tutions, 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 const.i.tutions 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 mult.i.tudes 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 hards.h.i.+p, which might be borne, but spreads and grows up into the unfortunate importance of a national calamity.