« PreviousContinue »
do so. The concessions, already made to the Catholics in Ireland, prove that the difficulties which have flowed from the oath are of modern date. But, even if the King had specifically promised Parliament at their request, not to make concessions to the Catholics, this promise would be absolved if Parliament themselves proposed the concessions for his Majesty's ratification. Thus, in whatever point of view this oath is contemplated, whether as affecting the prerogative of the King as independent of Parliament, or his prerogative as acting as a component part of the legislature; or whether, as having excited expectations of a particularly cogent description, it has the appearance of being of such a nature as not to form any reasonable impediment to the wished-sor and necessary measure of Catholic emancipation. It is so important a topic as standing in the way of those measures which alone are best calculated to conciliate the affection of so large a portion of his Majesty's subjects to the support of his Majesty's throne, and the connexion with Great Britain, that it becomes the duty of every one who can honestly construe the coronation oath in favour of the Catholics, to make public his opinion, and the reasons for it, in order that the repeated discussion of the subject may lead to such a final judgment upon it, that may either remove the difficulties by promoting a change of opi. nion, or by contributing to such legislative alterations in regard to it, as may prevent similar difficulties in future times. Z. Liverpool, Nov. 19, 1804.
REPEAL OF T H E COR PORATION
Stry——In pursuance of my promise, I now send you a few reflections, which have occurred to me, on the second objection, viz. The danger of violating one of the articles of the Union between England and Scotland, expressly declared to be “a sun“ damental and essential article, and so to “ be held in all time coming,” and the reasons for which I deem the repeal of the Corporation and Test Acts to be a constitutional measure.——Whatever advances the purposes for which Parliament assem. bles, and which are, as we learn from the antient writs of summons, “for the wel“ save of the King, the prosperity of the “ State, the defence of the Kingdom, and “ the ho...our of the Church, and for the “redress of divers grievances in general, “ and divers mischiefs in particular"—must
be allowed to be constitutional. Whatever
tends to strengthen the Etapire, and esta
blish the union of his Majesty's dominions, must be so advantageous as to require all matters of less importance to give way to the obtaining such a desideratum. It is generally known that grievances exist in Ireland, the redress of which it is as universaily believed, could be procured by the repeal of the Corporation and Test Acts. Such repeal would throw open the doors of the Cabinet and Senate to the Catholic subjects of eminence in Ireland 3 to many of those loyal and powerful individuals, who, by the removal of the present restrictions, might assist towards the welfare of the Sovereign and the security of the Constitution, and towards the accomplishment of the excellent purposes proposed by the Union of Ireland with Great Britain : and from these premises 1 conclude the repeal to be constitutional. But it is said, by such a measure the fundamental and essential article of the Union between England and Scotland would be violated, because the forms of Protestant and Presbyterian religion are established thereby. To this I answer, if an act should be enacted for the purpose of removing the difficulties of the Catholics, as far as those difficulties depend on the Corporation and Test Acts, might not such act consistently contain a clause, confirming the modes of religion established in the respective parts of the empire? Yet, should that fundamental and essential arti. cle be disturbed, convenience, policy, and justice requiring such disturbance, in order more fully to carry into execution, the in tent and design of the acts (which contain the article) namely, the security and hap: piness of the Incorporated Countries, and the improvement of their Constitution, where would be the violation any unore than that of every act imposing a tax * part of our property, which is to be paid for the security of the remainder ; 0, where would be the violation in sacrificio one section which appears inconsistent with the general view of the whole act of Pasliament? Why should the Legislature be denied the power of altering part of the Constitution, if even that were necessary,
since it has been allowed the competency
of altering the whole, and even of destro
ing itself? Such article, then, if it pre:
vents the redress of the grievances suffer"
in Ireland, and thereby retards the security
of the Empire, must be considered a mal.
ter of smaller importance than, and should
give way to a measure of greater and to
beneficial extent, namely, the repeal of “
acts in question and the prosperity of the Constitution of the united dominions. Again, from the law of nations, and the justice of considering as most important a religion (not containing doctrines prejudicial to -Morality or the State) adopted by the inajority of a country under his Majesty's pro- tection, I might, argue, that the repeal —would be constitutional and advantageous, and, following my former mode of reasoning, I should conclude, there was no violation committed against, the fundamental and essential article before mentioned, by - such repeal. But I could add nothing to the Archdeacon Paley's excellent Chapter on Religious Establishments and Toleration (2d vol. of his Philosophy), which points out the necessity of exclusion in some cases, and the advantages of a compleat toleration in all.—With your permission, I will now advert to the third objection, namely, the fear of re-establishing Popery or Presbyterianism within his Majesty's dominious. The time in which the Corpora. tion and Test Acts were enacted, sufficiently declare the purposes of such laws, and there is no doubt that individuals were not then excludcd from offices of influence and trust, so much on account of their religious tenets as for their political opinions; but the enemies of the State being generally known by their dissent from the established church, all dissenters were for that reason excluded. Applying, therefore, the purposes of those laws to the present times, we should consider, whether by a repeal we should defeat them, and whether (in the words of the act of 1 3 Ch. II.) “ the succession of members in Corpora* tions will not probably be perpetuated in “ the hands of persons well affected to his “ Majesty and the Estáblished Govern. “, ment.” . As to Presbyterians, no thought of alarm is suggested from that quarter; and the Union of England and Scotland establishing their form of religion has not produced any formidable enemies from that sect. And as to the Catholics, all ground of apprehension must be considerably, if not entirely, removed by their declarations accurately transcribed in a letter of Z's which appeared in your Register of the 1oth of last month. However, much innovation must be dreaded in all matters of state, particularly in those which regard religion. Yet, from the expectation of fur. ther indulgence the Catholics have 1eason to entertain, from the present state of the Empire, from the great probability of animosities ceasing and the spirit of rebellion dying, if: the promised satisfaction be
granted to the Irish, there is so much to hope for and so little to fear, in the present case, that I must presume the repeal of the prohibitory acts will surmount all difficulties, will promote the happiness of his Majesty's people, and the prosperity of the empire, and advance the honour of God and his holy church.—With great respect, I remain, Sir, yours, &c.—BRIT ANN icus.
S I R J AM ES C R A UF U R D. Sir, However I may differ from you in opinion on the subject relating to which I am now about to address you, I can, but feel a degree of satisfaction in knowing, that that subject should have been admitted by you, to be of “ considerable public if not political importance." If, Sir, the escape of Sir James Craufurd had been a question, important in its result only to the welfare of the individuals who had abandoned their native country to find an abode in the bosom of the most inveterate of her enemies, you would not have been troubled with the perusal of these lines ; but viewing as I must that question extending itself in some degree over the honour of the country, and involving in its immediate, as well as in its remote consequences, the very existence of those laws and principles which by the common consent of nations in any degree advanced in civilization have for many ages been made the engines of mitigation to the ravages of war, I can but consider it as one which ought at least to be seriously and minutely investigated. The engagement of Sir James inserted in your Register, must as you say, while it
remains uncontradicted, be taken for grant
ed; and I fully agree with you, in the preliminary acknowledgment you have made, that “ as a gentleman and a servant of the “ King he must look strict justice in the face, “ and if she acquit him not, he must be con“ demned of a breach of parole," than which you have truly declared “ nothing could be “ more dishonourable ;" and you might have added, when protected and encouraged, more important at any period, but particularly at the eventful crisis in which we live, to the interests of humanity and the allevi. ation of the calamities of contending nations.——Before I proceed farther in my ininvestigation, I feel myself called upon to inquire what inference you would draw when you affirm, “ considering Sir James's “ conduct as a question of public law, em“ bracing his obligations towards the French “ and towards his own country, there would “ be great difficulty in coming to a decision “if his own government had not already
“ settled the point." The natural supposition certainly is, that you would allude to the circumstances of the detention : but, laying aside the declarations of Lord Hawkesbury, I really confess myself unable to discover what reference can therefrom be brought to bear upon the subject before us The English residents were detained not individually as men, but collectively as subjects of Great-Britain ; and if this nation had not declared their detention to be contrary to the law of nations, its silence must have been considered as a tacit admission that they were in every sense of the word prisoners of war. Public ministers are, Sir, as you have yourself asserted, the only channels through which nations can either speak or be addressed therefore their individual complaints could have availed them nothing. The government of their own country had admitted them to be prisoners, and as such they must have been bound to regard themselves. It may however be, that you would refer this “ difficulty of coming to a de“cision” to the situation of prisoners of war in general, but after having explicitly declared that nothing can be more dishonourable than a breach of partle, I can scarcely bring myself to believe, that such can be the basis ou which you would rest your argument; and as the limits even of this particular case may extend to some length of discussion, I will not at present enter upon that subject. The hinge of the argument turns, Sir, upon this question; whether the official assertion of a public minister of one belligerent nation, that its subjects are unjustly detained prisoners of war by another, is a sufficient justification for a breach of parole; that is, in this case, upon the influence to be attached to the bare ipse dixit of Lord Hawkesbury; you exclaim, God forbid, you should take upon you to decide between his lordship and the French government; but so seem to have forgotten, that when you
ave become the advocate of those who have previously made that decision, and acted upon it as the rule of their conduct, you have already laid low your former animosities, and enlisted yourself the volunteer under the triumphant banner of your hero of Amiens. The following is the substance of the argument you have advanced ; “ that “ the minister for foreign affairs in England “ having declared the government of France “ did not act according to the law of na“ttous, that government, and, as a neces* surv conclusion, the whole French nation, “ are in this particular instance to be re“ garded as nothing better than banditti.” Having, as you conceive, established this the
major of your proposition, you proceed for a minor to affirm, “ that there are few persons “ who, if seized by banditti, would scruple “ to tender them a promise of any sort to get “ out of their power;" thereby, and from the context, I apprehend meaning that pro
mises made to banditti are not to be con
sidered as binding; and from these two syllogisms, (having however previously pro** tat, vellet res servare, sub conditione si ** naufragium non imminere!, at absolute ** vult res perdere, spectata scilicet temporis ** ac loci circumstantiá." He proceeds, in the next paragraph, to state that the promissee is morally bound to release the prornissor from his obligation : “ Non quod ** ineficax fuerit promissis, sed ob damnum ** injuria datum.” This does not, however, apply, to the present case; neither the robber has released the object of his injustice, nor the French government their declared to be lawful captive; the obligation, there. fore, as well to the one as to the other, remains in fall force. Grotius, in the following section, adds: “ Materiam promissi “ quod attinel, eam oportet esse, ant esse “ posse in iure promittentis, ut promissum ** sit efficax. Quare primum non valent “ promissa facti per se illiciti; quia ad illa “, beino jus habet, nec potest habere. At “ promissio, ut supra diximus, viru accipit * ex jure promittentis, nec ultra exten“ ditur. Agesilaus de promisso interpel“ latus respondit rai bota, śā' ori 3.Masov, ** it to un as:2 gey, ouxáynaz 33 c5. "– The offences of banditti are criminal, not as they concern the individuals attacked, but as they are injurious to the community at large; as they militate against the primary object of the existence of civil society, protection from violence; against the bond which cements the society together, property; and thereby against the sovereign power of the state, which either has or must be supposed to have been established by the common consent at some remote period; in England, as the words are, in contempt of our Lord the King, and his laws, and against the peace of our said Lord the King, his crown and dignity. Here, then, it is a direct interference with the first of all moral duties, the duty to the state; for no man, taking such a view of the case, can make a promise or other compact with a robber, or any other public offender; because he cannot enter into a state of peace with a man, with whom, without violating the greatest of all human duties, he can, as a member of the community, never put himself out of a state of war. On the principle, therefore, that a posterior cannot controvert a prior obligation, but upon that only, I agree with you, that promises made to banditti are not to be considered as binding. But, without the prior obligation to the state, such a promise must be valid; because, as Grotius argues, it is agreed to, not conditionally, but absolutely ; and the banditti have a confidence in the obligation, or they would not be at the trouble to exact it. But where is
oved that the duties of a husband and a
father to his family in England were, upon a question of feeling, to be regarded as infinitely preferable to any obligation that could arise from the situation of his sellow prisoners in France,) you cerne to your conclusion, namely, that the conduct of Sir James Craufurd, supposing the engagements to exist, is justifiable.—As to.the minor of your proposition, that promises made to banditti are not to be considered as binding, I readily admit the conclusion ; and though the paths by which we arrive at this same point do most essentially differ, I certainly should not trouble you with a more metaphysical deduction, if that deduction did not enable me to shew the fallacy of the assertions upon which you have grounded the major of your proposition, viz. that the French government ought, in this particular instance, to be considered as nothing better than banditti; and, of course, inasmuch as we are able to be treated as such. I will premise with an author", who e sentiments are sometimes consonant to your own, that promises are to be interpreted in the sense in which they are received by the promisee; that the obligation to perform them arises from the confidence mankind repose in them ; and that that obligation is taken away when the performance is illegal, or when qmtradicted by a prior promise. The sentiments of this writer upon our present subject are, however, so vague and indeterminate, that it is impossible to come to any decision from them. But, Sir, a better ore may be extracted from the rich though ill digested mine of Grotiust, illumined as are the words of that discerning writer by the reflexions of the father of ethical and political science. “Ego om“ nino illorum accedo sententiae, qui exist“ mant, se posità lege civili, quae obliga. “ tionem potest tollere aut minuere, eum “ qui metu promisit aliquid obligari : quia consensus hic adfuit, nec conditionalis, “ ut modo in errante dicebaunus, sed abso“ lutus. Nam, ut recte ab Aristotele tra“ ditum est, quinaufragii metu res soas jac
* Dr. Paley.—f Lib. ii. Tit, vii. § 3 and 3. . . . * ... -- *
the violation of the municipal laws of one nation by another, that can place the latter in the situation of banditti? and where, then, the prinr obligation that can arise to the parole of a declared prisoner of war. Are the edicts of the government of his own country or the assertions of that to which he is a captive, be they ever so unjust, (if the interpretations of the law of nations wils allow me the use of that expression), to determiue his conduct. An eminent *writer on public law, and whom you have introduced among us in the garb of your native language, has, with every other author on the same subject who has gone before him, been obliged to bring his proof of the existence of a positive law of nations to this point, that “ in general all nations give a “ certain degree of attention to the customs “ admitted by others." But supposing one nation to withdraw this consent, who is to determine the injury, and what possible remedy can be had but retaliation as far as that is in your power. The complaints of Lord Hawkesbury cannot, but as they may intiuence other nations to make a common cause in the war, and the extent of that influence I should be sorry to presume to trace, be even of the value of the paper upon which they are written. To what tribunal does he appeal Nations, Sir, you well know admit of but one, and that is the tribunal of the strongest sword. It must therefore be the assertions of the government to which he is a captive that are to determine the conduct of a prisoner of war. He holds his life but conditionally, and to every thing but his honour, his integrity, and those duties of allegiance which can on earth never be lost or abandoned he must consider himself as dead. The short but beautifully expressive sentinent of the captive monarch f of France to his mother the Queen Regent, after the battle of Pavia, you no doubt remember : “Madame, tout “est perdu, hormis l'honneur.” And, Sir, the prisoner of war who, dreading the shipwreck of captivity, throws overboard and abandons to the fury of the waves his cargo of honour and integrity would, I doubt not, be willing to preserve it, si naufragium non immineret, an absoluté vult res perdere, spectati s-cilicet temporis ac locis circumstantiá. I might, Sir, enter farther into the monstrous idea of considering thirty millions of open as banditti, but what I have already said is sufficient for my purpose. I have proved they could not be treated as such in this particular case, and of course that your
* Martens. Francis I.
conclusion falls to the ground. But, Sir, though upon every principle of argument I am obliged to consider the engagement in your Register to be in existence; yet, look
ing back to the station this gentleman once held, even degraded as that sacred character has publicly been at Munich, I will not allow myself to believe it can ever personally fall so low. It must, Sir, be a forgery of the French government to answer its own detestable purposes, to degrade and vilify the British character, and to enable it to invade still farther the rights and privileges of neutral nations. To contradict it is a duty Sir James Craufurd owes to his own reputation, and to the honour of his insulted coun. try; and a duty in which that country hopes' and trusts she will not be disappointed. I remain, Sir, yours, &c.— Reg ULUs.
London, 20th Nov. 1804.
- - LETTER II, (See the 1st in p. 545 ct seq.) Ey + ECTS OF PA : E R-M O N E Y IN T.M. ES OF S C A R CITY.
SIR.—Various avocations have prevented me from answering you so soon as I intended. I have now read very attentively your remarks upon the letter which I sent you, and, as I do not think that the truth of the train position, for which I contend, is af. fected by the arguments which you urge against it; I shall, with your indulgence, submit to you a few observations on the topics which have been incidentally involved in the discussion, and I shall then state to you my reasons for still differing with you in opinion.——I observe, that I have mistaken Mr. Howison's meaning; which, I assure you is not owing to any carelessness of mine, nor to the defect of incorrect punctuation which you point out, but is entirely imputable to the inaccuracy and obscurity of his expressions, and to the insidious construction of the sentence. When commercial confidence is high, and when credit can be obtained by men possessed of no capital, then, it seems the paper inoney is in a fictitious state, and the depreciation of money means in the new nomenclature of political economy, a currency constantly depreciating. To me the expressions conveyed a meaning totally different; and, I still think, that the fictitious state of paper money, though in any sense not very intelligible, is more applicable to a depreciated state of the currency, than to the imprudent investiture of loans, or to the creation of fictitious capital. Other instances of faulty expression might be pointed out, but as it is a matter of small importance, whether Mr. Howison's stile be
perspicuous or obscure, I decline pursuing the subject farther. You observe, that in commenting upon the extracts from Mr. Howison's work. I do not seem to have perceived, that in passing through your hands, the positions of that gentleman received, as to the detail, some degree of qualification ; and afterwards, in p. 556, you say, that it is evident that the article of the Register, when fairly considered as a whole, did not tend to encourage the notion of anything more than a transitory influence on the price of corn. I certainly did not perceive, that Mr. Howison's positions received any qualifications in passing through your hands, for you said that the principle was laid down in a manper so satisfactory to your mind, that you was induced to believe that those who had not perused the pamphlet, would thank you for the extract you was about to make from it. Several of your remarks did seem indeed, at variance with Mr. Howison's opinions; but there was no direct qualification even of the most intemperate of his expressions, and although in your reply to my letter, you complain that it is rather cruel in me to pour argument upon argument upon you, to prove that it is impossible for the corn dealers to raise the price of corn as high as they please by the assistance of discounts; yet, in the passage you quote from Mr. Howison, it is affirmed in the most unqualified manner, that “any means which enable the posses“sors of such commodities (articles of ne“ cessity) in times of scarcity, to with hold “ the articles from market, enable him to “ raise the price just as high as he may “ choose, or as the last shilling of the user “ can reach." You object to the expression, “unfair means,” as applied to the operation of a paper currency on the price of provisions, and refer me to page 309 and 310 of your Register, where I find many judicious observations; but, after reading that passage in which you observe of the paper-money system, that it has set the staff of life upon the cast of the dye, I did not think that you would object to the term, unfair means, by which, however, I meant no more than that the price was raised above its natural level by the influence of capital. After reviewing the whole of your observations and considering them as they are explained in your reply to my letter, I cannot help thinking, that the quotation from Mr. Howison, not only tends to give a false impression of your opinions, but leads to consequences which had at first escaped your observation, and, I have no doubt that the subject would have been much better elucidated, had you exPressed your thoughts in your own vigorous