CHAPTER III.
PART I.
The system which we have just reviewed, and the manner in which religious influence on the public is made to operate upon the laws concerning property in Ireland, is in its nature very singular, and differs, I apprehend, essentially, and perhaps to its disadvantage, from any scheme of religious persecution now existing in any other country in Europe, or which has prevailed in any time or nation with which history has made us acquainted. I believe it will not be difficult to show that it is unjust, impolitic, and inefficacious; that it has the most unhappy influence on the prosperity, the morals, and the safety of that country; that this influence is not accidental, but has flowed as the necessary and direct consequence of the laws themselves, first on account of the object which they affect, and next by the quality of the greatest part of the instruments they employ. Upon all these points, first upon the general, and then on the particular, this question will be considered with as much order as can be followed in a matter of itself as involved and intricate as it is important.
The first and most capital consideration with regard to this, as to every object, is the extent of it. And here it is necessary to premise, this system of penalty and incapacity has for its object no small sect or obscure party, but a very numerous body of men,—a body which comprehends at least two thirds of that whole nation: it amounts to 2,800,000 souls, a number sufficient for the materials constituent of a great people. Now it is well worthy of a serious and dispassionate examination, whether such a system, respecting such an object, be in reality agreeable to any sound principles of legislation or any authorized definition of law; for if our reasons or practices differ from the general informed sense of mankind, it is very moderate to say that they are at least suspicious.
This consideration of the magnitude of the object ought to attend us through the whole inquiry: if it does not always affect the reason, it is always decisive on the importance of the question. It not only makes in itself a more leading point, but complicates itself with every other part of the matter, giving every error, minute in itself, a character and significance from its application. It is therefore not to be wondered at, if we perpetually recur to it in the course of this essay.
In the making of a new law it is undoubtedly the duty of the legislator to see that no injustice be done even to an individual: for there is then nothing to be unsettled, and the matter is under his hands to mould it as he pleases; and if he finds it untractable in the working, he may abandon it without incurring any new inconvenience. But in the question concerning the repeal of an old one, the work is of more difficulty; because laws, like houses, lean on one another, and the operation is delicate, and should be necessary: the objection, in such a case, ought not to arise from the natural infirmity of human institutions, but from substantial faults which contradict the nature and end of law itself,—faults not arising from the imperfection, but from the misapplication and abuse of our reason. As no legislators can regard the minima of equity, a law may in some instances be a just subject of censure without being at all an object of repeal. But if its transgressions against common right and, the ends of just government should be considerable in their nature and spreading in their effects, as this objection goes to the root and principle of the law, it renders it void in its obligatory quality on the mind, and therefore determines it as the proper object of abrogation and repeal, so far as regards its civil existence. The objection here is, as we observed, by no means on account of the imperfection of the law; it is on account of its erroneous principle: for if this be fundamentally wrong, the more perfect the law is made, the worse it becomes. It cannot be said to have the properties of genuine law, even in its imperfections and defects. The true weakness and opprobrium of our best general constitutions is, that they cannot provide beneficially for every particular case, and thus fill, adequately to their intentions, the circle of universal justice. But where the principle is faulty, the erroneous part of the law is the beneficial, and justice only finds refuge in those holes and corners which had escaped the sagacity and inquisition of the legislator. The happiness or misery of multitudes can never be a thing indifferent. A law against the majority of the people is in substance a law against the people itself; its extent determines its invalidity; it even changes its character as it enlarges its operation: it is not particular injustice, but general oppression; and can no longer be considered as a private hardship, which might be borne, but spreads and grows up into the unfortunate importance of a national calamity.
Now as a law directed against the mass of the nation has not the nature of a reasonable institution, 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 constitution 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 constitution 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 institution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the constitution can be pleaded in favor of such a practice. They may, indeed, impeach the frame of that constitution, 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 constitutions 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, cum id, quod semper æquum 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.