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, let us attend for a moment to an article which has had its advocates 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;Chapter he 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 detect 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 unfavourable 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. 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:Chapter ut because his habits and character render him dangerous to society, in the same sense as a wolf or a blight would be dangerous. 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 neighbour 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, favourable or unfavourable, must this precarious mutability in their solemn appeals to heaven have upon the minds of those by whom they are made?
