Oak Street UNCLASSIFIED THE TWO LETTERS UPON THE SUBJECT OF By DAVID LEAHY, Esq., BARRISTER-AT-LAW. LONDON : J. RIDGWAY AND SON, PICCADILLY. MDCCCXXXVIII. V, i.onpon : BRADBURY AND EVANS, PRINTERS, WIUTEFRI AUS. \ 1 i TWO LETTERS TO THE BISHOP OF EXETER, The following* letters have lately appeared in the Morning Chronicle , and are published in the present form at the request of some parties who are interested in the subject. LETTER I. To the Right Reverend the Lord Bishop of Exeter . My Lord, As your Lordship has repeatedly imputed to the Roman Catholic Members of the Legislature, that by their conduct in that character, upon the subject of the Irish Church Estab- lishment, they had violated what is called the Roman Catholic Oath, and thereby committed the offence of perjury; as you are the most considerable of the persons who have made the j imputation, and as I believe that the whole matter in contro- 4 versy can be very briefly disposed of, by a reference to certain general principles which to me appear to be entirely uncontro- < vertible, I take the liberty, for these reasons, of requesting your ^Lordship’s attention to the following questions. 4 Is not the legislative power identical with the supreme sovereignty in every state ? and has not this power been conferred upon the legislative body, solely in order that it may, from time to time, enact such general regulations as may appear, to the Legislature itself, to be most conducive to the universal happiness of the whole community, in the actual circumstances of each particular contingency ? Is it not, therefore, the transcendental duty of every Legis- lature to discharge the functions for the performance of which it has been exclusively called into existence ? and does not this paramount obligation to exercise the supreme power, according to its original destination, constitute the indestructible essence of the Legislative character ? Is it possible to discharge this duty without the most unlimited freedom of deliberation ? and is not, therefore, an unbounded and sovereign discretion an essential property in the comprehension of every Legislature ? Must not the same obligation to legislative action, which irresistibly coerces the whole body of the Legislature, be also compulsory upon each individual member ? and must not each member be therefore indefeasibly entitled to an unlimited freedom of deliberation, as long as he exercises his functions in conformity with whatever may be the actual distribution of the legislative power among the several portions of the Legislature itself? Is it not, therefore, the first and greatest of the obligations imposed upon every member of the Legislature to contribute, by all the means in his power, to the enactment of every law which, upon the fullest consideration, he believes to be calcu- lated to advance the happiness of the community ; and to con- tribute with equal activity to the rejection or the repeal of every other ? Is not every promise, which cannot be carried into effect without violating an existing obligation of a higher character, utterly null and void in the first moment of its creation ? Is not, therefore, every undertaking which professes to 5 restrain the freedom of legislative action essentially immoral and absurd, inasmuch as it cannot be effectuated, except by the violation of a higher obligation than that which is attempted to be imposed by the restriction ; or by the destruction of the character in which alone the restriction pretends to be imposed ? Is not the impropriety of entering into such an engagement (whatever the amount of that impropriety may be) exceeded by that of observing it; and is it not, therefore, the evident duty of the Legislature to abolish the necessity for contracting an obligation which, perhaps, cannot be assumed without some violation of propriety, but which certainly cannot be effectuated without a greater ? I have the honour to remain, Your Lordship’s obedient servant, DAVID LEAHY. Devercux- chambers, Temple. LETTER II. To the Right Reverend the Lord Bishop of Exeter. My Lord, As I took the liberty, a few days back, of addressing some observations to your Lordship in reference to the Roman Catholic oath, I shall venture to trespass a little further upon your time, by once more calling your attention, very briefly, to the same subject. You have asserted of the Roman Catholic members of Parliament that their conduct upon this matter has rendered them liable to the imputation of perjury. This offence may, I think, with sufficient accuracy be defined as consisting in a deliberate violation of an obligatory oath ; and the first ques- 6 tion, therefore, to be decided in the controversy is the validity of the obligation itself. As it is contended upon the part of your Lordship that the oath in question was intended as a restraint upon the Roman Catholic members in their parliamentary capacity, I shall for the present admit that position to be correct; and I shall further, for the purposes of the argument, acknowledge that the degree and nature of the restraint which the oath was intended to impose are exactly whatever your Lordship may have represented them to be. The question, then, which arises upon this condition of the facts is, whether the Legislature has the power in rerum natura to create an obligation of that sort ; and upon this question I profess to sustain the negative. The question itself I take to be exactly scientific — I do not of course mean to say that it belongs to the department of what is called exact science — but that it is scientific in its general nature, and exact in its individual character. I assert, then, that the obligation intended to be created by this oath is a nonentity; because an utter incapability of self-restraint is a quality which evi- dently flows out of the very definition of a Legislature, and because, from the fact of the Legislature being unable to restrain itself, it must inevitably follow that it cannot put any restraint upon any of its members in their legislative capacity. The assumption of the affirmative of this latter proposition must of course constitute the sole foundation of your Lord- ship’s reasoning. Let us therefore take that assumption to be correct, and endeavour to ascertain what consequences must follow from its correctness. The results which must be gene- rated by your lordship’s propositions will, I think, inevitably, though indirectly, establish the correctness of mine. If the Legislature has the power to restrain the legislative action of one of its members upon any one subject, it must have the power to restrain the legislative action of two — of twenty — of all its members, upon the same subject. That is to say, it must have the power of enacting that, upon the sub- 7 ject in question, the Legislature itself should have no legis- lative authority whatsoever. The value of this reduction is expressed by Sir William Blackstone in the following words : — “ The hare idea of a state without a power somewhere vested to alter every PART of its laws, is the height of political absurdity # But this is not all. If the Legislature can restrain itself from legislating upon any given subject, it must, of course, have the power to restrain itself from legislating upon any other, and upon every other subject whatsoever; from which it must follow, that it would be competent for the Legislature to provide, that whilst it continued to be a Legislature, it should be no Legislature at all : so that, in the former case, we should arrive at the brilliant conception of a Legislature, secundum quid ; and in the second, at that of a Legislature, the subject-matter of whose legislative authority should be gradually evanescent, until its remaining value came to be exactly equal to nothing. A real exhaustion of all the sub- jects of legislation cannot of course be considered as probable in fact. But such an exhaustion is very possible in concep- tion, and serves for the purpose of illustration as effectually and properly as if it actually existed at the present moment, -f* If the preceding observations, and those which I have already had the honour of addressing to your Lordship, are correct, does it not unquestionably follow that every provision of the kind which we have been considering, must, if it effect anything, be a step towards effecting the destruction of the Legislature by itself ; and that from the assertion of the validity of the * Bl. Com., Book I., page 07, note e. t An argument of this nature, a sort of horse-tail sorites (see Horace’s Epistle to Augustus,) was lately used by Dr. Chalmers in his second lecture at the Hanover-square Rooms, to prove the utility of an established church in America. In that instance the process appears to have been reversed, as the individual cases were not excluded but accumulated . 0SOTHS.TV 01 F L18RARY 8 obligation in question, your Lordship will be irresistibly pro- pelled along the whole line of the argumentation, until you arrive at the legality of establishing anarchy by law ? Upon the whole of this question, I am humbly of opinion, that the assumption of a power in the Legislature to restrain itself or any of its members in their legislative capacity, conducts in every direction to a wilderness of absurdities. But it is unnecessary to develop the subject any further at present. The whole of your Lordship's arguments and impu- tations must be founded upon the validity of the obligation in question, and the removal of the foundation must of course produce the demolition of the superstructure. I have the honour to remain, Your lordship’s servant, DAVID LEAHY. Devereux- chambers , Temple. LONDON BRADBURY AND EVANS, PRINTERS, WHITEFRIARS.