Volume VI Part 19 (2/2)

Now as a law directed against the ma.s.s of the nation has not the nature of a reasonable inst.i.tution, 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 const.i.tution 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 const.i.tution 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 inst.i.tution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the const.i.tution can be pleaded in favor of such a practice. They may, indeed, impeach the frame of that const.i.tution, 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 const.i.tutions 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, c.u.m 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 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 quaestione ergo proposita”_ (says he) ”_nulla est inter auth.o.r.es controversia; sed omnium commune est axioma de substantia et ratione legis esse, ut pro communi bono feratur; ita ut propter illud praecipue tradatur_”; having observed in another place, ”_Contra omnem rect.i.tudinem 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 circ.u.mstances, 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 pa.s.sions. 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 rect.i.tude, to which the mind is compelled to a.s.sent 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 t.i.tle 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, establis.h.i.+ng 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 t.i.tle 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 circ.u.mstances 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 a.s.serted, 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 ill.u.s.trious 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 compa.s.sion 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 circ.u.mstance, 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 const.i.tution 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 hards.h.i.+p, 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 _pet.i.tio 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 princ.i.p.al 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, quae scita sint in populorum inst.i.tutis aut legibus,” etc. ”Quod si populorum jussis, si principum decretis, si sententiis judic.u.m jura const.i.tuerentur, jus esset latrocinari, jus adulterare, jus testamenta falsa supponere, si haec suffragiis aut scitis mult.i.tudinis probarentur.”

CHAPTER III.

PART II.

<script>