by Edmund Burke
Is, then, no improvement to be brought into society? Undoubtedly; but not by compulsion, — but by encouragement, — but by countenance, favor, privileges, which are powerful, and are lawful instruments. The coercive authority of the state is limited to what is necessary for its existence. To this belongs the whole order of criminal law. It considers as crimes (that is, the object of punishment) trespasses against those rules for which society was instituted. The law punishes delinquents, not because they are not good men, but because they are intolerably wicked. It does bear, and must, with the vices and the follies of men, until they actually strike at the root of order. This it does in things actually moral. In all matters of speculative improvement the case is stronger, even where the matter is properly of human cognizance. But to consider an averseness to improvement, the not arriving at perfection, as a crime, is against all tolerably correct jurisprudence; for, if the resistance to improvement should be great and any way general, they would in effect give up the necessary and substantial part in favor of the perfection and the finishing.
But, say the abettors of our penal laws, this old possessed superstition is such in its principles, that society, on its general principles, cannot subsist along with it. Could a man think such an objection possible, if he had not actually heard it made, — an objection contradicted, not by hypothetical reasonings, but the clear evidence of the most decisive facts? Society not only exists, but flourishes at this hour, with this superstition, in many countries, under every form of government, — in some established, in some tolerated, in others upon an equal footing. And was there no civil society at all in these kingdoms before the Reformation? To say it was not as well constituted as it ought to be is saying nothing at all to the purpose; for that assertion evidently regards improvement, not existence. It certainly did then exist; and it as certainly then was at least as much to the advantage of a very great part of society as what we have brought in the place of it: which is, indeed, a great blessing to those who have profited of the change; but to all the rest, as we have wrought, that is, by blending general persecution with partial reformation, it is the very reverse. We found the people heretics and idolaters; we have, by way of improving their condition, rendered them slaves and beggars: they remain in all the misfortune of their old errors, and all the superadded misery of their recent punishment. They were happy enough, in their opinion at least, before the change; what benefits society then had, they partook of them all. They are now excluded from those benefits; and, so far as civil society comprehends them, and as we have managed the matter, our persecutions are so far from being necessary to its existence, that our very reformation is made in a degree noxious. If this be improvement, truly I know not what can be called a depravation of society.
But as those who argue in this manner are perpetually shifting the question, having begun with objecting, in order to give a fair and public color to their scheme, to a toleration of those opinions as subversive of society in general, they will surely end by abandoning the broad part of the argument, and attempting to show that a toleration of them is inconsistent with the established government among us. Now, though this position be in reality as untenable as the other, it is not altogether such an absurdity on the face of it. All I shall here observe is, that those who lay it down little consider what a wound they are giving to that establishment for which they pretend so much zeal. However, as this is a consideration, not of general justice, but of particular and national policy, and as I have reserved a place expressly, where it will undergo a thorough discussion, I shall not here embarrass myself with it, — being resolved to preserve all the order in my power, in the examination of this important, melancholy subject.
However, before we pass from this point concerning possession, it will be a relaxation of the mind, not wholly foreign to our purpose, to take a short review of the extraordinary policy which has been held with regard to religion in that kingdom, from the time our ancestors took possession of it. The most able antiquaries are of opinion, and Archbishop Usher, whom I reckon amongst the first of them, has, I think, shown, that a religion not very remote from the present Protestant persuasion was that of the Irish before the union of that kingdom to the crown of England. If this was not directly the fact, this at least seems very probable, that Papal authority was much lower in Ireland than in other countries. This union was made under the authority of an arbitrary grant of Pope Adrian, in order that the Church of Ireland should be reduced to the same servitude with those that were nearer to his see. It is not very wonderful that an ambitious monarch should make use of any pretence in his way to so considerable an object. What is extraordinary is, that for a very long time, even quite down to the Reformation, and in their most solemn acts, the kings of England founded their title wholly on this grant: they called for obedience from the people of Ireland, not on principles of subjection, but as vassals and mesne lords between them and the Popes; and they omitted no measure of force or policy to establish that Papal authority, with all the distinguishing articles of religion connected with it, and to make it take deep root in the minds of the people. Not to crowd instances unnecessary, I shall select two, one of which is in print, the other on record, — the one a treaty, the other an act of Parliament. The first is the submission of the Irish chiefs to Richard the Second, mentioned by Sir John Davies. In this pact they bind themselves for the future to preserve peace and allegiance to the kings of England, under certain pecuniary penalties. But what is remarkable, these fines were all covenanted to be paid into the Apostolical Chamber, supposing the Pope as the superior power, whose peace was broken and whose majesty was violated in disobeying his governor. By this time, so far as regarded England, the kings had extremely abridged the Papal power in many material particulars: they had passed the Statute of Provisors, the Statute of Præmunire, — and, indeed, struck out of the Papal authority all things, at least, that seemed to infringe on their temporal independence. In Ireland, however, their proceeding was directly the reverse: there they thought it expedient to exalt it at least as high as ever: for, so late as the reign of Edward the Fourth, the following short, but very explicit, act of Parliament was passed: —
IV. ED. Ca.
“An act, whereby letters patent of pardon from the king to those that sue to Rome for certain benefices is void. Rot. Parl.
“Item, At the request of the commons, it is ordeyned and established, by authority of the said Parliament, that all maner letters patents of the king, of pardons or pardon granted by the king, or hereafter to be granted, to any provisor that claim any title by the bulls of the Pope to any maner benefices, where, at the time of the impetrating of the said bulls of provision, the benefice is full of an incumbent, that then the said letters patents of pardon or pardons be void in law and of none effect.”
When, by every expedient of force and policy, by a war of some centuries, by extirpating a number of the old, and by bringing in a number of new people full of those opinions and intending to propagate them, they had fully compassed their object, they suddenly took another turn, — commenced an opposite persecution, made heavy laws, carried on mighty wars, inflicted and suffered the worst evils, extirpated the mass of the old, brought in new inhabitants; and they continue at this day an oppressive system, and may for four hundred years to come, to eradicate opinions which by the same violent means they had been four hundred years endeavoring by every means to establish. They compelled the people to submit, by the forfeiture of all their civil rights, to the Pope’s authority, in its most extravagant and unbounded sense, as a giver of kingdoms; and now they refuse even to tolerate them in the most moderate and chastised sentiments concerning it. No country, I believe, since the world began, has suffered so much on account of religion, or has been so variously harassed both for Popery and for Protestantism.
It will now be seen, that, even if these laws could be supposed agreeable to those of Nature in these particulars, on another and almost as strong a principle they are yet unjust, as being
contrary to positive compact, and the public faith most solemnly plighted. On the surrender of Limerick, and some other Irish garrisons, in the war of the Revolution, the Lords Justices of Ireland and the commander-in-chief of the king’s forces signed a capitulation with the Irish, which was afterwards ratified by the king himself by inspeximus under the great seal of England. It contains some public articles relative to the whole body of the Roman Catholics in that kingdom, and some with regard to the security of the greater part of the inhabitants of five counties. What the latter were, or in what manner they were observed, is at this day of much less public concern. The former are two, — the first and the ninth. The first is of this tenor:— “The Roman Catholics of this kingdom [Ireland] shall enjoy such privileges in the exercise of their religion as are consistent with the laws of Ireland, or as they did enjoy in the reign of King Charles the Second. And their Majesties, as soon as affairs will permit them to summon a Parliament in this kingdom, will endeavor to procure the said Roman Catholics such farther security in that particular as may preserve them from any disturbance upon the account of their said religion.” The ninth article is to this effect:— “The oath to be administered to such Roman Catholics as submit to their Majesties’ government shall be the oath abovesaid, and no other,” — viz., the oath of allegiance, made by act of Parliament in England, in the first year of their then Majesties; as required by the second of the Articles of Limerick. Compare this latter article with the penal laws, as they are stated in the Second Chapter, and judge whether they seem to be the public acts of the same power, and observe whether other oaths are tendered to them, and under what penalties. Compare the former with the same laws, from the beginning to the end, and judge whether the Roman Catholics have been preserved, agreeably to the sense of the article, from any disturbance upon account of their religion, — or rather, whether on that account there is a single right of Nature or benefit of society which has not been either totally taken away or considerably impaired.
But it is said, that the legislature was not bound by this article, as it has never been ratified in Parliament. I do admit that it never had that sanction, and that the Parliament was under no obligation to ratify these articles by any express act of theirs But still I am at a loss how they came to be the less valid, on the principles of our Constitution, by being without that sanction. They certainly bound the king and his successors. The words of the article do this, or they do nothing; and so far as the crown had a share in passing those acts, the public faith was unquestionably broken. In Ireland such a breach on the part of the crown was much more unpardonable in administration than it would have been here. They have in Ireland a way of preventing any bill even from approaching the royal presence, in matters of far less importance than the honor and faith of the crown and the well-being of a great body of the people. For, besides that they might have opposed the very first suggestion of it in the House of Commons, it could not be framed into a bill without the approbation of the Council in Ireland. It could not be returned to them again without the approbation of the King and Council here. They might have met it again in its second passage through that House of Parliament in which it was originally suggested, as well as in the other. If it had escaped them through all these mazes, it was again to come before the Lord Lieutenant, who might have sunk it by a refusal of the royal assent. The Constitution of Ireland has interposed all those checks to the passing of any constitutional act, however insignificant in its own nature. But did the administration in that reign avail themselves of any one of those opportunities? They never gave the act of the eleventh of Queen Anne the least degree of opposition in any one stage of its progress. What is rather the fact, many of the queen’s servants encouraged it, recommended it, were in reality the true authors of its passing in Parliament, instead of recommending and using their utmost endeavor to establish a law directly opposite in its tendency, as they were bound to do by the express letter of the very first article of the Treaty of Limerick. To say nothing further of the ministry, who in this instance most shamefully betrayed the faith of government, may it not be a matter of some degree of doubt, whether the Parliament, who do not claim a right of dissolving the force of moral obligation, did not make themselves a party in this breach of contract, by presenting a bill to the crown in direct violation of those articles so solemnly and so recently executed, which by the Constitution they had full authority to execute?
It may be further objected, that, when the Irish requested the ratification of Parliament to those articles, they did, in effect, themselves entertain a doubt concerning their validity without such a ratification. To this I answer, that the collateral security was meant to bind the crown, and to hold it firm to its engagements. They did not, therefore, call it a perfecting of the security, but an additional security, which it could not have been, if the first had been void; for the Parliament could not bind itself more than the crown had bound itself. And if all had made but one security, neither of them could be called additional with propriety or common sense. But let us suppose that they did apprehend there might have been something wanting in this security without the sanction of Parliament. They were, however, evidently mistaken; and this surplusage of theirs did not weaken the validity of the single contract, upon the known principle of law, Non solent, quæ abundant, vitiare scripturas. For nothing is more evident than that the crown was bound, and that no act can be made without the royal assent. But the Constitution will warrant us in going a great deal further, and in affirming, that a treaty executed by the crown, and contradictory of no preceding law, is full as binding on the whole body of the nation as if it had twenty times received the sanction of Parliament; because the very same Constitution which has given to the Houses of Parliament their definite authority has also left in the crown the trust of making peace, as a consequence, and much the best consequence, of the prerogative of making war. If the peace was ill made, my Lord Galmoy, Coningsby, and Porter, who signed it, were responsible; because they were subject to the community. But its own contracts are not subject to it: it is subject to them; and the compact of the king acting constitutionally was the compact of the nation.
Observe what monstrous consequences would result from a contrary position. A foreign enemy has entered, or a strong domestic one has arisen in the nation. In such events the circumstances may be, and often have been, such that a Parliament cannot sit. This was precisely the case in that rebellion in Ireland. It will be admitted also, that their power may be so great as to make it very prudent to treat with them, in order to save effusion of blood, perhaps to save the nation. Now could such a treaty be at all made, if your enemies, or rebels, were fully persuaded, that, in these times of confusion, there was no authority in the state which could hold out to them an inviolable pledge for their future security, but that there lurked in the Constitution a dormant, but irresistible power, who would not think itself bound by the ordinary subsisting and contracting authority, but might rescind its acts and obligations at pleasure? This would be a doctrine made to perpetuate and exasperate war; and on that principle it directly impugns the law of nations, which is built upon this principle, that war should be softened as much as possible, and that it should cease as soon as possible, between contending parties and communities. The king has a power to pardon individuals. If the king holds out his faith to a robber, to come in on a promise of pardon, of life and estate, and, in all respects, of a full indemnity, shall the Parliament say that he must nevertheless be executed, that his estate must be forfeited, or that he shall be abridged of any of the privileges which he before held as a subject? Nobody will affirm it. In such a case, the breach of faith would not only be on the part of the king who assented to such an act, but on the part of the Parliament who made it. As the king represents the whole contracting capacity of the nation, so far as his prerogative (unlimited, as I said before, by any precedent law) can extend, he acts as the national procurator on all such occasions. What is true of a robber is true of a rebel; and what
is true of one robber or rebel is as true, and it is a much more important truth, of one hundred thousand.
To urge this part of the argument further is, indeed, I fear, not necessary, for two reasons: first, that it seems tolerably evident in itself; and next, that there is but too much ground to apprehend that the actual ratification of Parliament would, in the then temper of parties, have proved but a very slight and trivial security. Of this there is a very strong example in the history of those very articles: for, though the Parliament omitted in the reign of King William to ratify the first and most general of them, they did actually confirm the second and more limited, that which related to the security of the inhabitants of those five counties which were in arms when the treaty was made.
CHAPTER IV.
In the foregoing book we considered these laws in a very simple point of view, and in a very general one, — merely as a system of hardship imposed on the body of the community; and from thence, and from some other arguments, inferred the general injustice of such a procedure. In this we shall be obliged to be more minute; and the matter will become more complex as we undertake to demonstrate the mischievous and impolitic consequences which the particular mode of this oppressive system, and the instruments which it employs, operating, as we said, on this extensive object, produce on the national prosperity, quiet, and security.
The stock of materials by which any nation is rendered flourishing and prosperous are its industry, its knowledge or skill, its morals, its execution of justice, its courage, and the national union in directing these powers to one point, and making them all centre in the public benefit. Other than these, I do not know and scarcely can conceive any means by which a community may flourish.