Book 6, Chapter 04 : Of Tests
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Book 6, Chapter 04
Their supposed advantages are attended with iniustice - are nugatory. - Illustration. - Their disadvantages. - They ensnare. - Example. - Second example. - Influence of tests on the - latitudinarian - on the purist. - Conclusion.
THE majority of the arguments above employed, on the subject of penal laws in matters of opinion, are equally applicable to tests, religious and political. The distinction, between prizes and penalties, between greater and less, has little tendency to change the state of the question, if we have already proved that any discouragement extended to the curiosity of intellect, and any authoritative countenance afforded to one set of opinions in preference to another, is in its own nature unjust, and evidently hostile to the general welfare.
Leaving out of the consideration religious tests, as being fully comprehended in the preceding discussion, 1 let us attend for a moment to an article which has had its advoates among men of considerable liberality, the supposed propriety of political tests. 'Shall we have no federal oaths, no oaths of fidelity to the nation, the law and the republic? How in that case shall we distinguish between the enemies and the friends of freedom?'
Certainly there cannot be a method devised for this purpose at once more iniquitous and ineffectual than a federal oath. What is the language that, in strictness of interpretation, belongs to the act of the legislature imposing this oath? To one party it says, 'We know that you are our friends; the oath, as it relates to you, we acknowledge to be superfluous; nevertheless you must take it, as a cover to our indirect purposes, in imposing it upon persons whose views are less unequivocal than yours.' To the other party it says, 'It is vehemently suspected that you are hostile to the cause in which we are engaged: this suspicion is either true or false; if false, we ought not to suspect you, and much less ought we to put you to this corrupting and nugatory purgation; if true, you will either candidly confess your difference, or dishonestly prevaricate: be candid, and we will indignantly banish you; be dishonest, and we will receive you as bosom-friends.'
Those who say this, however, promise too much. Duty and common sense oblige us to watch the man we suspect, even though he should swear he is innocent. Would not the same precautions, which we are still obliged to employ, to secure us against his duplicity have sufficiently answered our purpose, without putting him to this purgation? Are there no methods by which we can find whether a man be the proper subject in whom to repose an important trust, without putting the question to himself? Will not he who is so dangerous an enemy that we cannot suffer him at large, discover his enmity by his conduct, without reducing us to the painful necessity of tempting him to an act of prevarication? If he be so subtle a hypocrite that all our vigilance cannot dectect him, will he scruple to add to his other crimes the guilt of perjury?
Whether the test we impose be merely intended to operate as an exclusion from office, or to any more considerable disadvantage, the disability it introduces is still in the nature of a punishment. It treats the individual in question as an unsound member of society, as distinguished, in an unfavorable sense, from the majority of his countrymen, and possessing certain attributes detrimental to the general interest. In the eye of reason, human nature is capable of no other guilt than this. 2 Society is authorized to animadvert upon a certain individual, in the case of murder, for example, not because he has done an action that he might have avoided, not because he was sufficiently informed of the better, and obstinately chose the worse; for this is impossible, every man necessarily does that which he at the time apprehends to be best: but because his habits and character render him dangerous to society, in the same sense as a wolf or a blight would be dangerous. 3 It must, no doubt, be an emergency of no common magnitude that can justify a people in putting a mark of displeasure upon a man for the opinions he entertains, be they what they may. But, taking for granted, for the present, the propriety of such a measure, it would certainly be just as equitable to administer, to the man accused for murder, an oath of purgation, as to the man accused of disaffection to the established order of society. The proof of this injustice is to be found in the nature of punishment. It would be well, in ordinary cases at least, that a man were allowed to propose to his neighbor what questions he pleased, and, in general, his duty would prompt him to give an explicit answer. But, when you punish a man, you suspend the treatment that is due to him as a rational being, and consequently your own claim to a reciprocation of that treatment. You demand from him an impartial confession at the same time that you employ a most powerful motive to prevarication, and menace him with a serious injury in return for his ingenuousness.
These reasonings being particularly applicable to a people in a state of revolution, like the French, it may perhaps be allowable to take, from their revolution, an example of the injurious and ensnaring effects with which tests, and oaths of fidelity, are usually attended. It was required of all men, in the year 1791, to swear, 'that they would be faithful to the nation, the law and the king'. In what sense can they be said to have adhered to their oath who, twelve months after their constitution had been established on its new basis, have taken a second oath declaratory of their everlasting abjuration of monarchy? What sort of effect, favorable or unfavorable, must this precarious mutability in their solemn appeals to heaven have upon the minds of those by whom they are made?
And this leads us, from the consideration of the supposed advantages of tests, religious and political, to their disadvantages. The first of these disadvantages consists in the impossibility of constructing a test in such a manner as to suit the various opinions of those upon whom it is imposed, and not to be liable to reasonable objections When the law was repealed imposing upon the dissenting clergy of England a subscription, with certain reservations, to the articles of the established church, an attempt was made to invent an unexceptionable test that might be substituted in its room. This test simply affirmed 'that the books of the Old and New Testament, in the opinion of the person who took it, contained a revelation from God'; and it was supposed that no Christian could scruple s uch a declaration. But is it impossible that I should be a Christian, and yet doubt of the canonical authority of the amatory edogues of Solomon, or of certain other books, contained in a selection that was originally made in a very arbitrary manner? 'Still however I may take the test, with a persuasion that the books of the Old and New Testament contain a revelation from God, and something more.' In the same sense I might take it, and if the Koran, the Talmud, and the sacred books of he Hindoos, were added to the list. What sort of influence will be produced upon the mind that is accustomed to this looseness of construction in its most solemn engagements?
Let us examine, with the same view, the federal oath of the French, proclaiming the determination of the swearer, 'to be faithful to the nation, the law and the king'. Fidelity to three several interests, which may, in various cases, be placed in opposition to each other, will appear at first sight to be no very reasonable engagement. The propriety of vowing fidelity to the king has already been brought to the trial, and received its condemnation. 4 Fidelity to the law is an engagement of so complicated a nature as to strike terror into every mind of serious reflection. It is impossible that a system of law, the composition of men, should ever be presented to such a mind, that shall appear faultless. But, with respect to laws that appear to me to be unjust, I am bound to every kind of hostility short of open violence; I am bound to exert myself incessantly, in proportion to the magnitude of the injustice, for their abolition. Fidelity to the nation is an engagement scarcely less equivocal. I have a paramount engagement to the cause of justice, and the benefit of the human race. If the nation undertake what is unjust, fidelity in that undertaking is a crime. If it undertake what is just, it is my duty to promote its success, not because I was born one of its citizens, but because such is the command of justice.
It may be alleged with respect to the French federal oath, as well as with respect to the religious test before cited, that it may be taken with a certain laxity of interpretation. When I swear fidelity to the law, I may mean only that there are certain parts of it that I approve. When I swear fidelity to the nation, the law and the king, I may mean, so far only as these three authorities shall agree with each other, and all of them agree with the general welfare of mankind. In a word, the final result of this laxity of interpretation explains the oath to mean, 'I swear that I believe it is my duty to do everything that appears to me to be just'. Who can look without indignation and regret at this prostitution of language? Who can think, without horror, of the consequences of the public and perpetual lesson of duplicity which is thus read to mankind?
But, supposing there should be certain members of the community, simple and uninstructed enough to conceive that an oath contained some real obligation, and did not leave the duty of the person to whom it was administered precisely where it found it, what is the lesson that would be read to such members? They would listen, with horror, to the man who endeavored to persuade them that they owed no fidelity to the nation, the law and the kin , as to one who was instigating them to sacrilege. They would tell him that it was too late, and that they must not allow themselves to hear his arguments. They would perhaps have heard enough, before their alarm commenced, to, make them look with envy on the happy state of this man. who was free to listen to the communications of others without terror, who could give a loose to his thoughts, and intrepidly follow the course of his inquiries wherever they led him. For themselves they had promised to think no more. for the rest of their lives. Compliance indeed in this case is impossible; but will a vow of inviolable adherence to a certain constitution have no effect in checking the vigor of their contemplations, and the elasticity of their minds?
We put a miserable deception upon ourselves when we promise ourselves the most favorable effects from the abolition of monarchy and aristocracy, and retain this wretched system of tests, overturning, in the apprehensions of mankind at large the fundamental distinctions of justice and injustice. Sincerity is not less essential than equality to the well-being of mankind. A government that is perpetually furnishing motives to jesuitism and hypocrisy is not less in hostility with reason than a government of orders and hereditary distinction. It is not easy to imagine how soon men would become frank explicit in their declarations, and unreserved in their manners, were there no positive institutions inculcating upon them the necessity of falsehood and disguise. Nor is it possible for any language to describe the inexhaustible benefits that would arise from the universal practice of sincerity.
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