by Edmund Burke
There is no doubt that the approaching executions will very much determine the future conduct of those people. They ought to be such as will humble, not irritate. Nothing will make government more awful to them than to see that it does not proceed by chance or under the influence of passion.
It is therefore proposed that no execution should be made until the number of persons which government thinks fit to try is completed. When the whole is at once under the eye, an examination ought to be made into the circumstances of every particular convict; and six, at the very utmost, of the fittest examples may then be selected for execution, who ought to be brought out and put to death on one and the same day, in six different places, and in the most solemn manner that can be devised. Afterwards great care should be taken that their bodies may not be delivered to their friends, or to others who may make them objects of compassion or even veneration: some instances of the kind have happened with regard to the bodies of those killed in the riots. The rest of the malefactors ought to be either condemned, for larger [longer?] or shorter terms, to the lighters, houses of correction, service in the navy, and the like, according to the case.
This small number of executions, and all at one time, though in different places, is seriously recommended; because it is certain that a great havoc among criminals hardens rather than subdues the minds of people inclined to the same crimes, and therefore fails of answering its purpose as an example. Men who see their lives respected and thought of value by others come to respect that gift of God themselves. To have compassion for oneself, or to care, more or less, for one’s own life, is a lesson to be learned just as every other; and I believe it will be found that conspiracies have been most common and most desperate where their punishment has been most extensive and most severe.
Besides, the least excess in this way excites a tenderness in the milder sort of people, which makes them consider government in an harsh and odious light. The sense of justice in men is overloaded and fatigued with a long series of executions, or with such a carnage at once as rather resembles a massacre than a sober execution of the laws. The laws thus lose their terror in the minds of the wicked, and their reverence in the minds of the virtuous.
I have ever observed that the execution of one man fixes the attention and excites awe; the execution of multitudes dissipates and weakens the effect: but men reason themselves into disapprobation and disgust; they compute more as they feel less; and every severe act which does not appear to be necessary is sure to be offensive.
In selecting the criminals, a very different line ought to be followed from that recommended by the champions of the Protestant Association. They recommend that the offenders for plunder ought to be punished, and the offenders from principle spared. But the contrary rule ought to be followed. The ordinary executions, of which there are enough in conscience, are for the former species of delinquents; but such common plunderers would furnish no example in the present case, where the false or pretended principle of religion, which leads to crimes, is the very thing to be discouraged.
But the reason which ought to make these people objects of selection for punishment confines the selection to very few. For we must consider that the whole nation has been for a long time guilty of their crime. Toleration is a new virtue in any country. It is a late ripe fruit in the best climates. We ought to recollect the poison which, under the name of antidotes against Popery, and such like mountebank titles, has been circulated from our pulpits and from our presses, from the heads of the Church of England and the heads of the Dissenters. These publications, by degrees, have tended to drive all religion from our own minds, and to fill them with nothing but a violent hatred of the religion of other people, and, of course, with a hatred of their persons; and so, by a very natural progression, they have led men to the destruction of their goods and houses, and to attempts upon their lives.
This delusion furnishes no reason for suffering that abominable spirit to be kept alive by inflammatory libels or seditious assemblies, or for government’s yielding to it, in the smallest degree, any point of justice, equity, or sound policy. The king certainly ought not to give up any part of his subjects to the prejudices of another. So far from it, I am clearly of opinion that on the late occasion the Catholics ought to have been taken, more avowedly than they were, under the protection of government, as the Dissenters had been on a similar occasion.
But though we ought to protect against violence the bigotry of others, and to correct our own too, if we have any left, we ought to reflect, that an offence which in its cause is national ought not in its effects to be vindicated on individuals, but with a very well-tempered severity.
For my own part, I think the fire is not extinguished, — on the contrary, it seems to require the attention of government more than ever; but, as a part of any methodical plan for extinguishing this flame, it really seems necessary that the execution of justice should be as steady and as cool as possible.
SOME ADDITIONAL REFLECTIONS ON THE EXECUTIONS.
The great number of sufferers seems to arise from the misfortune incident to the variety of judicatures which have tried the crimes. It were well, if the whole had been the business of one commission; for now every trial seems as if it were a separate business, and in that light each offence is not punished with greater severity than single offences of the kind are commonly marked: but in reality and fact, this unfortunate affair, though diversified in the multitude of overt acts, has been one and the same riot; and therefore the executions, so far as regards the general effect on the minds of men, will have a reference to the unity of the offence, and will appear to be much more severe than such a riot, atrocious as it was, can well justify in government. I pray that it may be recollected that the chief delinquents have hitherto escaped, and very many of those who are fallen into the hands of justice are a poor, thoughtless set of creatures, very little aware of the nature of their offence. None of the list-makers, the assemblers of the mob, the directors and arrangers, have been convicted. The preachers of mischief remain safe, and are wicked enough not to feel for their deluded disciples, — no, not at all.
I would not plead the ignorance of the law in any, even the most ignorant, as a justification; but I am sure, that, when the question is of mercy, it is a very great and powerful argument. I have all the reason in the world to believe that they did not know their offence was capital.
There is one argument, which I beg may not be considered as brought for any invidious purpose, or meant as imputing blame anywhere, but which, I think, with candid and considerate men, will have much weight. The unfortunate delinquents were perhaps much encouraged by some remissness on the part of government itself. The absolute and entire impunity attending the same offence in Edinburgh, which was over and over again urged as an example and encouragement to these unfortunate people, might be a means of deluding them. Perhaps, too, a languor in the beginning of the riots here (which suffered the leaders to proceed, until very many, as it were by the contagion of a sort of fashion, were carried to these excesses) might make these people think that there was something in the case which induced government to wink at the irregularity of the proceedings.
The conduct and condition of the Lord Mayor ought, in my opinion, to be considered. His answers to Lord Beauchamp, to Mr. Malo, and to Mr. Langdale make him appear rather an accomplice in the crimes than guilty of negligence as a magistrate. Such an example set to the mob by the first magistrate of the city tends greatly to palliate their offence.
The license, and complete impunity too, of the publications which from the beginning instigated the people to such actions, and in the midst of trials and executions still continues, does in a great degree render these creatures an object of compassion. In the Public Advertiser of this morning there are two or three paragraphs strongly recommending such outrages, and stimulating the people to violence against the houses and persons of Roman Catholics, and even against the chapels of the foreign ministers.
I would not go so
far as to adopt the maxim, Quicquid multis peccatur inultum; but certainly offences committed by vast multitudes are somewhat palliated in the individuals, who, when so many escape, are always looked upon rather as unlucky than criminal. All our loose ideas of justice, as it affects any individual, have in them something of comparison to the situation of others; and no systematic reasoning can wholly free us from such impressions.
Phil. de Comines says our English civil wars were less destructive than others, because the cry of the conqueror always was, “Spare the common people.” This principle of war should be at least as prevalent in the execution of justice. The appetite of justice is easily satisfied, and it is best nourished with the least possible blood. We may, too, recollect that between capital punishment and total impunity there are many stages.
On the whole, every circumstance of mercy, and of comparative justice, does, in my opinion, plead in favor of such low, untaught, or ill-taught wretches. But above all, the policy of government is deeply interested that the punishments should appear one, solemn, deliberate act, aimed not at random, and at particular offences, but done with a relation to the general spirit of the tumults; and they ought to be nothing more than what is sufficient to mark and discountenance that spirit.
CIRCUMSTANCES FOR MERCY.
Not being principal.
Probable want of early and deliberate purposes.
Youth where the highest malice does not appear.
Sex where the highest malice does not appear.
Intoxication and levity, or mere wantonness of any kind.
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 priv
ileges, 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.