to be best: but because his habits and character render him dangerous to society, in the same sense as a -wolf or a blight woiUd 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 oatli of purgation, as to the man accused of disaffection to the esta- blished order of society. Tlie 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 neigh- bour 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 pre- varication, and menace him •svith a serious injury in return for his ingenuousness.
These reasonings being particularly applicable to a people in a state of revolution, like ttie French, it may perhaps be allowable to take, from their revolution an example of the injurious and ensnaring effects, wath which tests, and oaths of fidelity, are usually attended. K 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?
And this leads us, from the consideration of the supposed advantages of tests, religious and political, to their real disad- vantages. The first of these disadvantages consists in the im- possibility 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 objection. When the law was repealed, imposing, upon the dissenting clergy of England, a subscription, witii certain reservations, to the articles of the established church, an attempt was made to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 j" and it was supposed, that no Christian could scruple such a declaration. But is it impossible, that I should be a Christian, and yet doubt of the canonical authority of the amatory eco- • Book IV., Chap. Vlir.
124 OF TESTS.
logues of Solomon, or of certain other books, contained in a selection tliat 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, even if the Koran, the Talmud, and the sacred books of the Hindoos, were added to tlie 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 oppo- sition to each other, will appear at first sight to be no very rea- sonable engagement. The propriety of vowing fidelity to the king, has already been brought to the trial, and received its con- demnation.* Fidelity to the law, is an engagement of so com- plicated 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 imdertake 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 du- plicity which is thus read to mankind?
But, supposing there should be certain members of the com- munity, 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, • Book v., Chap. 11— VIII.
OP OATHS. 125 what is the lesson that would be read to such members? They would listen, with horror, to the man, who endeavoured to per- suade them, that they owed no fidelity to the nation, the law, and the king, 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 enquiries 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 vigour of their contemplations, and the elasticity of their minds?
We put a miserable deception upon ourselves, when we pro- mise ourselves the most favourable 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 govern- ment 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 necesssity of falsehood and disguise. Nor is it possible for any language to describe, the inexhaustible benefits, that would arise from tlie universal practice of sincerity.
CHAP. V.
OF OATHS.
Oaths of office and duty, — TTieir absurdity,— Their immoral conse- qxiences. — Oaths of evidence — less atrocious, — Opinion of the liberal and resolved respecting them. — Their essential features: contempt of veracity — false morality. — Their particular structure. — Abstract principles assumed by them to be true, — Their inconsistency with these principles.
The same arguments that prove the injustice of tests, may be applied universally to all oaths of duty and office. If I entered upon the office without an oath, what would be my duty? Caa 126 OP OATHS.
the oath that is imposed upon me make any alteration in my duty? If not, does not the very act of imposing it, by implica- tion assert a falsehood? Will this falsehood have no injurious effect upon a majority of the persons concerned? What is the true criterion that I shall faithfully discharge the office that is conferred upon me? Surely my past life, not any protestations I may be compelled to make. If my life have been unimpeach- able, this compulsion is an unmerited insult; if it have been otherwise, it is something ■worse.
It is with no common disapprobation, that a man of unde- bauched understanding will reflect upon the prostitution of oaths, which marks the history of modem European countries, and par- ticularly of our own. This is one of the means that government employs, to discharge itself of its proper functions, by making each man security for himself. It is one of the means that legis- lators have provided, to cover the inefficiency and absurdity of their regulations, by making individuals promise the execution of that which the police is not able to execute. It holds out, in one hand, the temptation to do wrong, and, in the other, the obligation imposed not to be influenced by that temptation. It compels a man to engage, not only for his own conduct, but for that of all his dependants. It obliges certain officers (church- wardens in particular), to promise an inspection beyond the limits of human faculties, and to engage for a proceeding, on the part of those under their jurisdiction, which they neither intend, nor are empowered to enforce. Will it be believed in after ages, that every considerable trader in exciseable articles in this coun- try, is induced, by the constitution of its government, to reconcile his mind to the guilt of prejury, as to the condition upon which he is allowed to exercise his profession?
There remains only one species of oaths to be considered, which have found their advocates among persons sufficiently speculative to reject every other species of oath, I mean, oaths administered to a witaess in a court of justice. " These are cer- tainly free from many of the objections, that apply to oaths of fidelity, duty, or office. They do not call upon a man, to declare his assent to a certain proposition, which the legislator has pre- pared for his acceptance; they only require him, solemnly to pledge himself to the truth of assertions, dictated by his own ap- prehension of things, and expressed in his own words. They do not require him, to engage for something future, and, of conse- quence, to shut up his mind against further information, as to what his conduct in that future ought to be; but merely to pledge his veracity to the apprehended order of things past."
These considerations palliate the evil, but do not convert it into good. Wherever, in any quarter of the globe, men of peculiar energy and dignity of mind have existed, they have felt the degradation of binding their assertions with an oath. The English constitution recognises, in a partial and imperfect manner, the force of this principle, and therefore provides tliat, while the OF OATHS. 127 common herd of mankind shall be obliged to confirm their de- clarations with an oath, nothing more shall be required from the order of nobles, in the very function which, in all other cases, lias emphatically received the appellation of juror, than a declar- ation upon honour. Will reason justify this distinction?
Can there be a practice more pregnant with false morality, than that of administering oaths in a court of justice? The lan- guage it expressly holds is, "You are not to be believed upon your mere word;" and there are few men, firm enough, reso- lutely to preserve themselves from contamination, when they are accustomed, upon the most solemn occasions, to be treated with contempt. To the unthinking it comes like a plenary indulgence to the occasional tampering with veracity in afiairs of daily occurrence, that they are not upon their oath; and we may affirm, without risk of error, that there is no cause of insincerity, grevarication, and falsehood more powerful, than that we are ere considering. It treats veracity, in the scenes of ordinary life, as a thing not to be looked for. It takes for granted that no man, at least of plebeian rank, is to be credited upon his bare affirmation; and what it thus takes for granted, it has an irre- sistible tendency to produce.
Add to this, a feature that nms through all the abuses of political institution, it saps the very foundations of moral princi- ple. Why is it that I am boimd to be more especially careful of what I afiGirm in a court of justice? Because the subsistence, the honest reputation, or the life of a fellow man, is there peculiarly at issue. All these genuine motives are, by the contrivance of human institution, thrown into shade, and we are expected to speak the truth, only because government demands it of us upon oath, and at the times in which government has thought proper, or recollected, to administer this oath. All attempts to strengthen the obligations of morality by fictitious and spurious motives, will, in the sequel, be found to have no tendency, but to relax them.
Men will never act with that liberal justice and conscious in- tegrity, which are their highest ornament, till they come to under- stand what men are. He that contaminates his lips with an oath, must have been thoroughly fortified with previous moral in- struction, if he be able afterwards to understand the beauty of an unconstrained and simple integrity. If our political institutors had been but half as judicious, in perceiving the manner in which excellence and worth were to be generated, as they have been ingenious and indefatigable in the means of depraving man- kind, the world, instead of a slaughter-house, would have been a. paradise.
Let us leave, for a moment, the general consideration of the principle of oaths, to reflect upon their particular structiire, and the precise meaning of the term. They take for granted, in the first place, the existence of an invisible governor of the worlds and the propriety of our addresssing petitions to him, both which a man may deny, and yet continue a good member of soci«ty.
128 OF LIBELS.
128 OF LIBELS.
What is the situation, in which the institution of which we treat, places this man? But we must not suffer ourselves to be stopped by trivial considerations. — Oaths are also so constructed, as to take for granted the religious system of the country, whatever it may happen to be.
Now what are the words with which we are taught, in this in- stance, to address the creator, whose existence Ave have thus re- cognised? " So help me God, and the contents of his holy word." It is the language of imprecation. I pray him to pour down his everlasting wrath and curse upon me, if I utter a lie. — It were to be wished that the name of that man had been re- corded, who tirst invented this mode of binding men to veracity. He had surely himself very slight and contemptuous notions of the Supreme Being, who could thus tempt men to insult him, by braving his displeasure. If it be thought to be our duty to invoke his blessing, yet surely it must be a most hardened profaneness, that can thus be content to put all the calamity with which he is able to overwhelm us, to the test of one moment's rectitude or frailty.
CHAP. VI.
OF LIBELS.
Public libeb, — Injustice of an attempt to prescribe the method in which public questions shall he discussed. — Its pusillanimity. — Invitations to tumult. — Private libels. — Reasons in favour of their being subjected to restraint. — Answer. — 1, It is necessary the truth should l)e told. — • Salutary effects of the unrestrained investigathn of character. — Objection: freedom of speech would be productive of calumny, not of justice. — Answer, — Future histoi'y of libel. — 2, It is necessary men should be taught to be sincere. — Extent of the evil which arises from a command to be insincere. — The mind spontaneously shrinks from the prosecution of a libel, — Conclusion, In the examination already bestowed upon the article of heres}-, political and religious,* we have anticipated one of the heads of the law of libel; and, if the arguments there adduced be admitted for valid, it will follow, that no punishment can justly be awarded, against any writing or words, derogatory to religion or political government.
It is impossible to establish any solid ground of distinction upon this subject, or to lay down rules in conformity to which controversies, political or religious, must be treated. It is impos* • Chap. IIL OP LIBELS. 12d sible to toll mc, when I am penetrated with the magnitude of the STibject, that I must be logical, and not eloquent: or, when I feel the absurdity of the theory I am combating, that I must not ex- press it in terms that shall produce feelings of ridicule in my readers. It Avcre better to forbid me the discussion of the subject altogether, than forbid me to describe it in the manner I conceive to be most suitable to its merits. It would be a most tyrannical species of candour to tell me, "You may write against the system we patronise, provided you will wTite in an imbecile and ineffectual manner; you may enquire and investigate as much as you please, provided, when you undertake to communicate the result, you carefully check your ardour, and be upon your guard! that you do not convey any of your own feelings to your readers." In subjects connected with the happiness of mankind, the feeling is the essence. If I do not describe the miserable effects of fanaticism and abuse, if I do not excite in the mind a sentiment of aversion and ardoiu-, I had better leave the subject altogether, for I am betraying the cause of which I profess to be the advo- cate. Add to this, that rules of distinction, as they are absurd in relation to the dissidents, will prove a continual instrument of usurpation and injustice to the rulu]g party. No reasonings will appear fair to them, but such as are futile. If I speak with energy, they will deem me inflammatory; and if I describe cen- surable proceedings in plain and homely, but pointed language, they will cry out upon me as a buflbon.
It must be truly a deplorable case, if truth, favoured by the many, and patronised by the great, should prove too weak to- enter the lists with falsehood. It is in a manner self-evident,, that that which will stand the test of examination, cannot need the support of penal statutes. After our adversaries have ex- hausted their eloquence, and exerted themselves to mislead us,, truth has a clear, nervous, and simple story to tell, which, if force- be excluded on all sides, will not fail to put down their arts. Misrepresentation will speedily vanish, if the friends of truth be but half as alert, as the advocates of falsehood. Surely then it is a most ungracious plea to offer, " We are too idle to reason with you, and are therefore determined to silence you by force." So long as the adversaries of justice confine themselves to expostula- tion, there can be no ground for serious alarm. As soon as they begin to act with violence and riot, it will be time enough to en- counter them with force.
There is however one class of libel that seems to demand a separate consideration. A libel may either not confine itself to any species of illustration of religion or government, or it may leave illustration entirely out of its view. Its object may be to invite a multitude of persons to assemble, as the first step towards acts of violence. A piiblic libel, is any species of writing, iu which the wisdom of some established system is controverted; and it cannot be denied, that a dispassionate and severe demon- stration of its injustice tends, not less than the most alarming 24.— VOL. II K 130 OF LIBELS.
tumult, to the destruction of such institutions. But writing and speech are the proper and becoming methods of operating changes in human society, and tumult is an improper and equivocal method. In the case then of the specific preparations of riot, it should seem, that the regular force of the society may lawfully interfere. But this interference may be of two kinds. It may consist of precautions to counteract all tumultuous concourse, or it may arraign the individual, for the offence he has committed against the peace of the community. The first of these seems sufficiently commendable and wise, and would perhaps, if vigilantly exerted, be, in almost all cases, adequate to the purpose. A firm and ex- plicit language as to the preceding steps, a careful attention to avoid unnecessary irritation and violence, and a temperate dis- play of strength in case of extremity, might be expected always to extricate the government in safety in these delicate exigencies. It must be a very uncommon occasion, in which the mass of the sober and effective part of the community, will not be found inimical to disorderly and tumultuous proceedings. The second idea, that of bringing the individual to account, for a proceeding of this sort, is of a more doubtful nature. A libel the avowed intention of which is to lead to immediate violence, is altogether different from a publication, in which the general merits of any institution are treated with the utmost freedom, and may well be supposed to fall under different rules. The difficulty here arises from the consideration of the general nature of punishment, which is abhorrent to the true principles of mind, and ought to be restrained within as narrow limits as possible, if not immediately abolished.* A distinction to which observation and experience, in cases of judicial proceeding, have uniformly led, is that between crimes that exist only in intention, and overt acts. So far as prevention only is concerned, the former would seem, in many cases, not less emtitled to the animadversion of society, than, the latter; but the evidence of intention usually rests upon cir- cumstances equivocal and minute, and the friend of justice will tremble to erect any grave proceeding upon so uncertain a basis.f — These reasonings on exhortations to tumult, will also be found applicable, with slight variation, to incendiary letters addressed to private persons.
But the law of libel, as we have already said, distributes itself into two heads, libels against public establishments and mea- sures, and libels against private character. Those who have been willing to admit, that the first ought to pass unpunished, have generally asserted the propriety of counteracting the latter, by censures and penalties. It shall be the business of the remainder of this chapter, to show, that they were erroneous in their decision.
The arguments upon which their decision is built, must be allowed to be both popular and impressive. "There is no ex- • See the following took. + Book YIL, Chap. VII.
OF LIBELS. 131 iernal possession, more solid, or more valuable, than an honest fame. My property, in goods or estate, is appropriated only by convention. Its value is, for the most part, the creature of a debauched imagination; and, if I were sufficiently wise and philosophical, he that deprived me of it, would do me very little injury. He that inflicts a stab upon my character, is a much more formidable enemy. It is a very serious inconvenience, that my countrymen should regard me as destitute of principle and honesty. If the mischief were entirely to myself, it is not pos- sible to be regarded with levity. I must be void of all sense of justice, if I am callous to the contempt and detestation of the world. I must cease to be a man, if I am unaffected by the calumny that deprives me of the friend I love, and leaves me perhaps without one bosom in which to repose my sympathies. But this is not all. The same stroke that anniliilates my cha- racter, extremely abridges, if it do not annihilate, my usefulness. It is in vain that I would exert my good intentions and my talents for the assistance of others, if my motives be perpetually misinterpreted. Men will not listen to the arguments of him they despise; he will be spurned during life, and execrated as long as his memory endures. What then are we to conclude, but that to an injury, greater than robbery, greater perhaps thaa murder, we ought to award an exemplary punishment?"
The answer to this statement may be given in the form of aa illustration of two propositions: first, that it is necessary the truth should be told; secondly, that it is necessary men should be taught to be sincere.
First, it is necessary the truth should be told. How can this ever be done, if I be forbidden to speak upon more than one side of a question? The case is here exactly similar, to the case of religion and political establishment. If we must always hear the praise of things as they are, and allow no man to urge an objec- tion, we may be lulled into torpid tranquillity, but we never can be wise.
If a veil of partial favour is to be drawn over the indiscretions and faults of mankind, it is easy to perceive whether virtue or vice will be the gainer. There is no terror that comes home to the heart of vice, like the terror of being exhibited to the public eye. On the contrary, there is no reward worthy to be bestowed upon eminent virtue, but this one, the plain, im- vamished proclamation of its excellence in the face of the world.