by Edmund Burke
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.
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 assurance 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 prope
rty 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 shillings 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 constitution 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 assistance 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 assisting, 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 hardship, 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 circumstances, 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 circumstances, 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 institute 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 præmunire, — 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 præmunire. So far as to involuntary; — now as to voluntary informers: the law entitles 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.