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The Works of the Right Honourable Edmund Burke, Vol. VI. (of 12) by Edmund Burke

E >> Edmund Burke >> The Works of the Right Honourable Edmund Burke, Vol. VI. (of 12)




Our petition arose naturally from distresses which we _felt_; and the
requests which we made were in effect nothing more than that such things
should be done in Parliament as it was evidently the duty of Parliament
to do. But the affair which will be proposed to you by a person of rank
and ability is an alteration in the constitution of Parliament itself.
It is impossible for you to have a subject before you of more
importance, and that requires a more cool and more mature consideration,
both on its own account, and for the credit of our sobriety of mind, who
are to resolve upon it.

The county will in some way or other be called upon to declare it your
opinion, that the House of Commons is not sufficiently numerous, and
that the elections are not sufficiently frequent,--that an hundred new
knights of the shire ought to be added, and that we are to have a new
election once in three years for certain, and as much oftener as the
king pleases. Such will be the state of things, if the proposition made
shall take effect.

All this may be proper. But, as an honest man, I cannot possibly give my
rote for it, until I have considered it more fully. I will not deny that
our Constitution may have faults, and that those faults, when found,
ought to be corrected; but, on the whole, that Constitution has been our
own pride, and an object of admiration to all other nations. It is not
everything which appears at first view to be faulty, in such a
complicated plan, that is to be determined to be so in reality. To
enable us to correct the Constitution, the whole Constitution must be
viewed together; and it must be compared with the actual state of the
people, and the circumstances of the time. For that which taken singly
and by itself may appear to be wrong, when considered with relation to
other things, may be perfectly right,--or at least such as ought to be
patiently endured, as the means of preventing something that is worse.
So far with regard to what at first view may appear a _distemper_ in the
Constitution. As to the _remedy_ of that distemper an equal caution
ought to be used; because this latter consideration is not single and
separate, no more than the former. There are many things in reformation
which would be proper to be done, if other things can be done along with
them, but which, if they cannot be so accompanied, ought not to be done
at all. I therefore wish, when any new matter of this deep nature is
proposed to me, to have the whole scheme distinctly in my view, and full
time to consider of it. Please God, I will walk with caution, whenever I
am not able clearly to see my way before me.

I am now growing old. I have from my very early youth been conversant in
reading and thinking upon the subject of our laws and Constitution, as
well as upon those of other times and other countries; I have been for
fifteen years a very laborious member of Parliament, and in that time
have had great opportunities of seeing with my own eyes the working of
the machine of our government, and remarking where it went smoothly and
did its business, and where it checked in its movements, or where it
damaged its work; I have also had and used the opportunities of
conversing with men of the greatest wisdom and fullest experience in
those matters; and I do declare to you most solemnly and most truly,
that, on the result of all this reading, thinking, experience, and
communication, I am not able to come to an immediate resolution in favor
of a change of the groundwork of our Constitution, and in particular,
that, in the present state of the country, in the present state of our
representation, in the present state of our rights and modes of
electing, in the present state of the several prevalent interests, in
the present state of the affairs and manners of this country, the
addition of an hundred knights of the shire, and hurrying election on
election, will be things advantageous to liberty or good government.

This is the present condition of my mind; and this is my apology for not
going as fast as others may choose to go in this business. I do not by
any means reject the propositions; much less do I condemn the gentlemen
who, with equal good intentions, with much better abilities, and with
infinitely greater personal weight and consideration than mine, are of
opinion that this matter ought to be decided upon instantly.

I most heartily wish that the deliberate sense of the kingdom on this
great subject should be known. When it is known, it _must_ be prevalent.
It would be dreadful indeed, if there was any power in the nation
capable of resisting its unanimous desire, or even the desire of any
very great and decided majority of the people. The people may be
deceived in their choice of an object; but I can scarcely conceive any
choice they can make to be so very mischievous as the existence of any
human force capable of resisting it. It will certainly be the duty of
every man, in the situation to which God has called him, to give his
best opinion and advice upon the matter: it will _not_ be his duty, let
him think what he will, to use any violent or any fraudulent means of
counteracting the general wish, or even of employing the legal and
constructive organ of expressing the people's sense against the sense
which they do actually entertain.

In order that the real sense of the people should be known upon so great
an affair as this, it is of absolute necessity that timely notice should
be given,--that the matter should be prepared in open committees, from a
choice into which no class or description of men is to be excluded,--and
the subsequent county meetings should be as full and as well attended as
possible. Without these precautions, the true sense of the people will
ever be uncertain. Sure I am, that no precipitate resolution on a great
change in the fundamental constitution of any country can ever be called
the real sense of the people.

I trust it will not be taken amiss, if, as an inhabitant and freeholder
of this county, (one, indeed, among the most inconsiderable,) I assert
my right of dissenting (as I do dissent fully and directly) from any
resolution whatsoever on the subject of an alteration in the
representation and election of the kingdom _at this time_. By preserving
this light, and exercising it with temper and moderation, I trust I
cannot offend the noble proposer, for whom no man professes or feels
more respect and regard than I do. A want of concurrence in _everything_
which _can_ be proposed will in no sort weaken the energy or distract
the efforts of men of upright intentions upon those points in which they
are agreed. Assemblies that are met, and with a resolution to be all of
a mind, are assemblies that can have no opinion at all of their own. The
first proposer of any measure must be their master. I do not know that
an amicable variety of sentiment, conducted with mutual good-will, has
any sort of resemblance to discord, or that it can give any advantage
whatsoever to the enemies of our common cause. On the contrary, a forced
and fictitious agreement (which every universal agreement must be) is
not becoming the cause of freedom. If, however, any evil should arise
from it, (which I confess I do not foresee,) I am happy that those who
have brought forward new and arduous matter, when very great doubts and
some diversity of opinion must be foreknown, are of authority and weight
enough to stand against the consequences.

I humbly lay these my sentiments before the county. They are not taken
up to serve any interests of my own, or to be subservient to the
interests of any man or set of men under heaven. I could wish to be able
to attend our meeting, or that I had time to reason this matter more
fully by letter; but I am detained here upon our business: what you have
already put upon us is as much as we can do. If we are prevented from
going through it with any effect, I fear it will be in part owing not
more to the resistance of the enemies of our cause than to our imposing
on ourselves such tasks as no human faculties, employed as we are, can
be equal to. Our worthy members have shown distinguished ability and
zeal in support of our petition. I am just going down to a bill brought
in to frustrate a capital part of your desires. The minister is
preparing to transfer the cognizance of the public accounts from those
whom you and the Constitution have chosen to control them, to unknown
persons, creatures of his own. For so much he annihilates Parliament.

I have the honor, &c.

EDMUND BURKE.

CHARLES STREET, 12th April, 1780.




FRAGMENTS OF A TRACT

RELATIVE TO

THE LAWS AGAINST POPERY

IN IRELAND.


NOTE.

The condition of the Roman Catholics in Ireland appears to
lave engaged the attention of Mr. Burke at a very early
period of his political life. It was probably soon after the
year 1765 that he formed the plan of a work upon that
subject, the fragments of which are now given to the public.
No title is prefixed to it in the original manuscript; and
the _Plan_, which it has been thought proper to insert here,
was evidently designed merely for the convenience of the
author. Of the first chapter some unconnected fragments only,
too imperfect for publication, have been found. Of the second
there is a considerable portion, perhaps nearly the whole;
but the copy from which it is printed is evidently a first
rough draught. The third chapter, as far as it goes, is taken
from a fair, corrected copy; but the end of the second part
of the first head is left unfinished, and the discussion of
the second and third heads was either never entered upon or
the manuscript containing it has unfortunately been lost.
What follows the third chapter appears to have been designed
for the beginning of the fourth, and is evidently the first
rough draught; and to this we have added a fragment which
appears to have been a part either of this or the first
chapter.

In the volume with which it is intended to close this
posthumous publication of Mr. Burke's Works, we shall have
occasion to enter into a more particular account of the part
which he took in the discussion of this great political
question. At present it may suffice to say, that the Letter
to Mr. Smith, the Second Letter to Sir Hercules Langrishe,
and the Letter to his Son, which here follow in order the
Fragment on the Popery Laws, are the only writings upon this
subject found amongst his papers in a state fit to appear in
this stage of the publication. What remain are some small
fragments of the Tract, and a few letters containing no new
matter of importance.




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 substitute 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 passed,
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 anticipate 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 emancipating 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 quantity 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 assigned; 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 assigned any sort of limit with regard to
the quantity 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 quantity 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 punishing, 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:--

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.

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