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AN ESSAY ON TEST-ACTS Imposed with Penalties. * [ First published in Philadelphia, Sept. 12, 1781.] - Pelatiah Webster, Political Essays on the Nature and Operation of Money, Public Finances and Other Subjects 
Political Essays on the Nature and Operation of Money, Public Finances and Other Subjects, published during the American War, and continued up to the present Year, 1791 (Philadelphia: Joseph Crukshank, 1791).
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AN ESSAY ON TEST-ACTS Imposed with Penalties.*
TEST-ACTS imposed with penalties, I humbly conceive, are hurtful; because,
I. Their address is to the hidden things of the heart, to the secret sentiments of the understanding, which are not controliable by any human authority, nor amenable to it; they belong to God only, and the conscience of the possessor, and no man can be obliged to confess or divulge them, more than to accuse himself. Test-acts, tho’ in a less degree, are of the same nature as racks and tortures, are calculated for the same ends, produce the same effects, and are therefore grounded on the same principles, and, of course, are reprobated by the same reasons; their end is to wring out those hidden things of the heart, which no man living has a right to demand, and, of course, no man can be under any obligation to disclose. It is impossible that any man should have a higher and more exclusive right to any thing whatever, than to the secrets of his own mind; and, therefore, to force them from a man is a direct violation of the most sacred, as well as most delicate, rights of human nature.
II. Every man has a right (in the use of his reason) to form sentiments of government, as well as of religion, and every thing else which concerns his well-being. There can be no crime in this, and, therefore, his sentiments of government (be they what they may) ought not to subject him to any kind of punishment either of pain or loss, or deprive him of any one privilege or benefit of civil society. It is true, if he accepts an office under a government which he disapproves, he ought to execute the office faithfully and legally, or he is punishable; if he cannot do this, he ought not to accept the office: he doubtless ought also to be a quiet and peaceable subject of the government which exists, and to use none but lawful means to mend or alter it.
He is supposed to be of a minor party, who must be governed by the major vote; but such minor party, having no guilt, is entitled to every blessing and benefit of government, as much as any of that party who are most cordial to the present establishment, i. e. government ought to hold an even, true, and just balance over every subject, and secure and defend the rights, liberties, property, privileges, &c. of every individual equally. The law is the equal right of every man, and therefore every man has an equal right to all its benefits, protections, securities, privileges, and advantages of every kind, till by some act of guilt he shall forfeit them.
It may be objected here,—shall the enemies of the present Constitution* enjoy the same privileges under it as its friends, who have run every risk, and made the strongest exertions, to introduce and establish it? I answer—Yes. It is to be presumed, that the zeal of the patrons of the Constitution has ever been directed in all their exertions with a single eye to the public good, otherwise they certainly deserve no favor; if their design was to introduce a partial government, not equal to all, in which they and their friends could monopolize the benefits and emoluments of government to themselves, they must be deemed very execrable, and their plan and administration most pernicious to society.
Government (both in theory and practice, system and administration) is a sort of public thing, in which every individual has an interest, and this interest is of so high and delicate a kind, that any violation of it excites the highest resentment in the sufferer. To be thrown out of the protection of the law, is a punishment of a very high nature, and in all good governments pre-supposes a conviction of some very black and atrocious crime, some crime of a very high nature and deep guilt. Wherefore, the least disfranchisement, or deprivation of any one benefit, which ought to flow from government equally on every subject, must partake of the nature of that high punishment, and, of course, ought never to take place, but where there has preceded a conviction of such high guilt as will justify it.
To adopt any principles or administration of government, which, from their nature, must keep party resentments alive, and fret the community with the perpetual gnawing anguish of continued oppressions, is the height of absurdity, must keep society in a perpetual ferment, and will for ever prevent the community from cementing in such an union, confidence, and acquiescence in the government, as are essential to the well-being of civil society; for human nature must cease to be what it is, before any part of mankind will acquiesce in an administration which treats them with distinctions of contempt, like underlings cut off from those honors or emoluments of the State, which the government diffuses with equal benevolence on all their neighbours.
If the government be good and properly administered, it will prove itself so by practice; the benefits of it will be diffused thro’ the community, and be felt by every one. This will naturally reconcile every opposer to its principles and practice, and it will soon have all good men for its friends; and when this is the case, there will be little danger of public disquietude arising from the wicked and guilty part of the community, who are uneasy with the government only because it restrains their wickedness, follies, or lusts.
It appears, then, that the test-acts, which have for their object the secret thoughts, opinions, sentiments, and designs of men, have an object which no human authority can or ought to reach; that the very attempt to do this is a violation of the most sacred rights of the subject; it is an intrusion into the great and exclusive prerogative of the Almighty, to whom alone secret things belong; goes on a supposition that is both useless and impossible, viz. that the secret opinions, sentiments, and designs of all men can orought to be alike; limits the rights, privileges, liberties, and security of the subject, to conditions which are absurd and ridiculous, because they have no connexion with the virtue or vice, the merit or demerit of the subject; and is so far from securing the peace, good order, and safety of society, that it cannot fail, on most natural principles, to keep up a perpetual fret and resentment of parties, to plant and keep alive that discord, uneasiness, and revenge, which is of the worst tendency, and generally produces very hurtful, and often very tragical, effects.
In fine, human nature is such, that all mankind have secret things about them, which they wish and think they have right to hold secure against the forcible intrusion of any body: if they disclose them, it must and ought to be their own voluntary act, to which they ought to be courted, not compelled; any attempt, therefore, by violence and the force of laws, to wring such secrets from the possessor, is against nature, is an insult on the natural feelings of every person living; the absurdity, indecency, and injury of which all men living see fast and clear enough, when it is put in practice by their enemies on themselves or their friends.
But what adds to the absurdity of this ill-fated piece of policy, is, that the little benefit which is hoped for and expected from it, fails entirely in the effects; and so after all the risks, scandals, cruelties, and mischiefs wrought by it, there remains no balance of profit at all, and the measure turns up at last, after all the trouble and pother about it, ridiculously useless. For,
III. The benefits expected from it all fail upon the trial. It would, indeed, be a fine thing to have a criterion by which we might distinguish our friends from our enemies, to have all our subjects under the strongest voluntary ties to the government, and to have the sacred power of religion mustered in aid of our civil policy: but plain fact and the fullest experience prove, that these effects are not, will not, cannot be produced by test-acts.
Read the history of the weak reigns of the bloody Queen Mary (the British persecutrix) of James I. and Charles I. of England; of Henry II. Charles IX. and Henry III. of France; in which test-acts greatly abounded (and, I think, they are ever a sign of a weak administration:) in all these we find a cloud of evasions, explanations, mental reservations, &c. which, with infinite variety of operation, never cease till they have totally avoided or obliterated the force of the acts.
For, whatever obligation the imposers of these acts may conceive to be in them, or whatever force the decisions of divines, civilians, or canonists may give them, it is plain that the general sense and practice of mankind, when harassed with them, give them mighty little or none at all. It is a well-known maxim, that the construction of any statute obtained by usage and common practice, is of more effect than the words, because such usage always controls the words: and if this rule may be allowed to apply, mighty little binding force will be left in the test-acts.
Indeed, I think it requires but little acquaintance and observation of the world, to see plain enough, that it is matter of general sentiment, that the most of mankind always did and always will believe, that if rulers or robbers attempt by force to wring from you any secret of your mind, which they neither have nor can have any right to know, that it is very proper and lawful for you to deceive them, cheat them, bubble them, and get rid of them any how that you can, and retain your own secret.
Can any man in his senses expect to get a true answer, were he to demand an oath of each subject of any State, whether he was or ever would be a traitor or heretic? and this I take to be the meaning of every test-act and oath of allegiance forcibly imposed on the subject, with this difference (which often makes a notable difficulty) the question sometimes is, not whether you are or will be a traitor to the State, but to some proposition, fact, whim, or system specified in the oath, and which is not always thought to be the same thing with the true interests of the State.
If any man thinks true answers can be obtained by this method of interrogation, it may not be improper to try the precious expedient in a sew other similar cases, viz. try to oblige a woman to answer on oath, whether she is or everwill be a whore; a clergyman, whether he is or ever will be a liar, drunkard, or heretic; a merchant, whether he ever did or will make false entries in his books, or forge bills of exchange. I am of opinion, that a little practice of such a sweet cue on various subjects, would soon demonstrate the utility or absurdity of this magical kind of logic, or method of investigating truth, show how it will suit the ordinary feelings of the human heart, and discover what rare inducements such curious questions must excite in sensible minds, to tell the truth, the whole truth, and nothing but the truth.
But if this unreasonable, indelicate method of investigating truth would always produce it, I have still a pretty cogent reason against the practice of it, viz. that the public would not be benefited, but greatly prejudiced by such a discovery. I think it is very evident that many sins do less hurt while they lie concealed, than they would do, if published; eaves-droppers rarely hear any good of themselves; jealousy is a low, uneasy passion, and is commonly gratified by an increase of torment; and people that are anxiously sond of fishing for secrets, rarely fail to hook in trouble; and these observations are not less true, and commonly more dangerous, in state-policy than in private life; but in both equally indicate weakness of intellects, disorders of imagination, great ignorance of human nature, and that painful, ridiculous anxiety which generally accompanies irritable nerves, and want of true, sound judgment.
This weakness of human nature is a kind of womanish imbecillity, like tears, which appear much more ridiculous in subjects of dignity and gravity, than in the weaker sex, to which they more properly belong. Government may enjoin a thousand oaths, and thereby occasion ten thousand perjuries, not one of which can be proved or punished without overt acts, and such overt acts will have equal effect both of conviction and punishment of all the abjured treason, without the oaths as with them; and, of course, the oaths are at least useless, if not hurtful.
Dignity and gravity ought always to be most carefully maintained in government; which will ever lose its respectability, when it descends to low, pimping methods of administration. The tree is to be judged by its fruit only.
It is by overt acts only that the designs of the heart can be made to appear; within this line of evidence we are limited by the laws of nature, as within brazen walls, beyond which the human powers cannot go. Nor does the safety of human society require this to be exceeded; for I am fully persuaded, if the well-being of mankind had required any other or better way of discovering the secrets of the heart, the great Governor of the world would have communicated to men some other way in which it could be done.
I have on the whole no opinion that test-acts or even oaths of allegiance afford any kind of security to the State; nor have I any very high opinion of oaths of office, but I do greatly object to any oaths being tacked to an office, more than the simple adjuration to execute the office legally and faithfully; and I equally object to municipal rights and privileges being made dependent on test-oaths or solemn declarations of secret opinions or sentiments.
I have candidly given my reasons for my opinion, which I hope will be candidly considered; and beg leave to move, with some hope and great humility, that all acts which enjoin such oaths, especially the test-acts, may be repealed by the proper authority. But if a repeal of those acts should be thought too much, I beg leave to recommend the removal of some of the severities which are imposed by these acts on the non-jurors; particularly their double tax, and the demand of that part of their tax in hard money, which the jurors are allowed to pay in paper of about one-third the value of hard money.
As a reason for this, I humbly urge, over and above the capital arguments drawn from the justice of government, and the equality and impartiality with which it ought to be administered to all orders and ranks of people, I say, besides this, I wish to urge the necessity of convincing all our people, by the equity and impartiality of our government, that it is a safe and sure protection of person and property; that the burdens of it are equally laid, so that no one part of the community is oppressed or burdened more than the rest.
This will give a practical proof that our government carries in it the most characteristic marks of a free, just, and gentle policy, which is directly opposed to tyranny, the essence of which consists in a denial or partial distribution of justice, and laying unequal burdens on one part of the community, in favor of other parts. This will soon gain the approbation and confidence of all people of serious and cool reflexion; the violent ravings of passion and prejudice will soon spend their own strength, and subside of course, when all real ground of complaint is taken away.
The non-jurors are very numerous; our business and interest is to get them reconciled, not exterminated. Mankind will ever like that government best, where they can enjoy most security, justice, and peace. Our political character, both among neighbours and foreign nations, requires this; if great numbers of our own people have a strong aversion to our government, it will afford a presumption to strangers, that either our people or our government must be very bad. Either of which will lessen our dignity and weight, and injure our public character abroad, and discourage that accession of foreigners, which is necessary to increase our population, trade, and husbandry.
Rigor and force can never govern any people longer than till they can find an opportunity of avoiding or revenging it. The understandings of the people must be convinced and courted, and the cements of society cannot be long wanting. We may, by perpetual, galling, and odious distinctions, keep up the heat and virulencies of parties, as long as those of the Guelphs and Gibbelines lasted in Italy, and to about as much advantage, i. e. till the peace, wealth, and morality of the country are all ruined.
We may, if we please, with more ease, like Henry IV. of France, by giving equal justice, benefit, and favor to all, soon convince all, that the government is their best friend and surest protection; then they will love and trust it for their own sakes, and when interest and allegiance conspire together, and mutually support each other, the government has the highest possible security of good order, public peace, and social happiness.
Sundry other reasons and observations might be added on this subject, which I can only hint at here, and leave the reader to enlarge on them as he pleases.
I. A great multiplicity of oaths makes them common and familiar, and thereby lessens their solemnity and practical force.
II. It cannot be expected that they will be sincerely taken and kept; and, therefore, they will introduce many perjuries, evasions, &c. which naturally tend to eradicate from the mind the high obligation of such awful appeals to the Almighty, and that solemn sense of truth, which most effectually secures the benefits of an oath.
III. It is presumed that very few of the present non-jurors refuse the oaths because they wish to return to the English government, or because they are averse to the American independency; but for a great variety of other reasons, which might be easily mentioned; and for the truth of this I appeal to the non-jurors themselves, who can best explain their own opinions and sentiments.
IV. Some of the enjoined oaths contain facts which many do not believe to be true, and contradictions which cannot be reconciled.
V. People of the most delicate sentiments of religion and truth only, i. e. the best people in the world, may be governed and perhaps hurt by them; whilst people of a contrary character will all avail themselves of some shift or other to avoid their whole effects.
VI. The experience of ages and nations proves that this measure has ever failed of producing the effects proposed and intended by it. Have we secured the obedience and goodwill of one American subject by it? We have seen, with indignation and contempt, the British generals rigidly imposing their oath of allegiance wherever they gained footing, and hanging such as have relapsed; the consequence is, they have disaffected and lost all their friends in the southern governments lately, and in all the rest long ago; the revolts against them are nearly universal.
VII. The real object of these tests is not always the safety of the State; they are too often made use of as engines of a ruling party, to entrap and punish such people as they suppose inimical to themselves, and whose conduct is so prudent and inoffensive, that they are not liable to punishment, but by some law which creates a crime which can be proved and punished without the evidence of overt acts. This is the height of abomination, a most execrable corruption and abuse of the most sacred rights of law.
VIII. When, by such wicked tricks, numbers of our freemen are excluded from their right of election, and bearing their part in the government of the State, the essential principle on which the government of the United States is founded, is violated. This principle is, that all right of government lies in the people, and that our government is a government of the people; which cannot be the case where numbers of the people, who have a right to a share in it, are excluded.
It is easy enough for any party which gets into the saddle, to keep their places there, by imposing some condition which is either impossible or impracticable, on all the people of different sentiments from themselves, e. g. they may make the very point in question between the two parties a term of admission or exclusion of the civil privileges and franchises of the people.
This is a short way of cutting down opposing parties, and destroying their weight in society, and changing the very essence of the Constitution from being the government of the people, to that of being a government of part of the people only: for there is a very wide difference between a government by major vote of all the people, and a government by a major vote of part of the people, whilst the other part are excluded from voting at all; for by this method of proceeding, the governing or voting part may, by repeated exclusions, reduce the government to a very small number, a mere junto of a few, from which the main body of the people may be excluded; which is not the free government of the people intended by our Constitution, but a mere unchecked tyranny of a few.
To effect all which, nothing more is necessary than this, viz. whenever there arises an opposition to any point carried by a majority, for that same majority to require an oath approving the very point in dispute, and imposing a penalty of exclusion from all right of voting, on such as refuse the oath, and so go on toties quoties, whenever an opposition arises. This will effectually exclude the opposition from future voting; for men will often conform to a matter carried by a majority against them, who would by no means swear an approbation of it.
This may be repeated till there are but two voters left in the whole State, and then one of them has nothing more to do than to kill the other, and he will be sole tyrant, and will be very safe, if he can get a standing army to support him: and this will not be difficult, if he has money enough: and this too will be easy; for the voting part of the community can always lay what taxes and raise what money they please, and the army which is to receive that money, can easily enforce the collection or payment of it.
Nor is this any very unnatural, strained, or extravagant supposition; for we have often seen Commonwealths, by the fatal errors of their policy, run into a monarchical and despotic tyranny: and the only sure way to avoid the fatal consequences of such errors, is to nip them in the bud; obstare principiis, to detect their principles, and restrain and correct the first beginnings of them, before they gain such strength as to be irresistible. I am here almost compelled to offer to public consideration one more proposal, viz.
To take off all disfranchisements and disabilities created by any of our statutes, for no other cause than neglecting the test-acts, oath of allegiance,*&c.
I write under a most serious conviction of the importance of my subject, and truth of my arguments, and really myself mean to be as open as I wish my readers to be, to the conviction of sound reason, and the dictates of true policy, and therefore think I have a right to hope for indulgence, even where my sentiments cannot obtain approbation.
[* ] By the act of the Legislature of Pennsylvania, June 13, 1777, the following oath was required, viz.
“I do swear, or affirm, that I renounce and refuse all allegiance to George III. King of Great-Britain, his heirs, and successors; and that I will be faithful and bear true allegiance to the Commonwealth of Pennsylvania, as a free and independent State; and that I will not at any time do, or cause to be done, any matter or thing that will be prejudicial or injurious to the freedom and independence thereof, as declared by Congress; and also that I will discover and make known to some one justice of peace of the said State, all treasons, or traitorous conspiracies, which I now know or hereafter shall know to be formed against this or any of the United States of America.”
On which I beg leave to remark,
I. That a very great number of the principal inhabitants of Pennsylvania, and as respectable and well-behaved as any in the State, from scruples of conscience bad ever refused to take or subscribe any oath or affirmation of allegiance to any government, either British or American.
II. Very many very serious and good men, and fast friends to America and the American cause, thought at that time that the Declaration of Independence was premature; and it was a matter of great doubt with all men, whether that independence could be finally supported; and, should it fail, many thought.
III. That abjuring the British government would involve them in perjury, or, at least, in a shameful and ridiculous duplicity of conduct, under the most awful and solemn crisis of department.
IV. Many wise men had a great attachment to the British government, under which they were born and educated; and tho’ they abborred and condemned the demands and conduct of the British court as much as any man in Congress, yet did not think that a redress of American grievances was desperate, or that it was the real, true interest of America to be disjoined from the British Empire; at least, they thought the American independence ought to be settled, and the war should be over, and the disputes between the contending States should be adjusted, before an oath of allegiance to the one, or abjuration of the other, should be demanded.
V. Many good men thought they did not understand the nature and essential qualities of trecsons or trecsonable conspiracies, well enough to be sate in swearing to give information of all such as came within then knowledge; or they might know such, but not be able to make proof of them, and, of course, their information would expose them not only to the resentment, but to real actions of defamation.
I do not pretend to determine whether any or all of the above objections against taking said oath, were good and proper or not; but they had such weight with great numbers, that near half of our most serious people resused taking the oath.
Yet, I conceive, all men will allow that Pennsylvania was as true to the American cause, and supported it with as much effort, zeal, and unanimity as any State in the Union; and the few tories we had, who retained any attachment to the British government, were most effectually converted by the samples of British faith, honor, and savagenes, exhibited by General Howe, whilst he commanded the British army in Philadelphia and its neighbourhood.
But be all this as it may, the extraordinary penalties with which the oath was enforced, were, in my opinion, equally useless, absura, and severs; some of which were as follows, viz.
That every person above the age of eighteen years, refusing or neglecting to take and subscribe the said oath or affirmation, shall, during the time of such neglect or refusal, be incapable of holding any office or piace of trust in this State, serving on juries, sving for any debts, electing or being elected, buying, selling, or transferring any lands, tenements, or bered taments, and shall be disarmed, &c.
—Travelling out of the city or county where he usually resides, without a certificate of his having taken the oath or affirmation, may be committed to the common gaol to remain without bail or mainprise.
Shall be disabled to sue or use any action, bill, plaint, or information in course of law, or to prosecute any suit in equity or otherwise howsoever, or to be guardian of the person or estate of any child, or to to be executor or edministrator of any person; shall be incapable of any legacy or deed of gift or to make any will or testament; and shall be compelled to pay double taxes, &c.
All non-juring trustees, provosts, rectors, professors, masters and tutors of any college or academy, and all schoolmasters and ushers, merchants and traders, sergeants and counsellors at law, barristers, advocates, attornies, solicitors, proctors, clerks or notaries, apothecaries, druggists, and every person practising physic, are disabled in law to use any of those employments, and liable to be fined 500l. for practising in any of them.
Two justices may summon any non-juring person before them, and, on refusal to take the said oath or affirmation, commit him to the common gaol or house of correction for three months, unless he pay any sum, with costs, under 10l. which they may require, and also become bound with two sufficient sureties to appear at the next court of general quarter sessions of the peace; where, if he refuses to take the oath or affirmation, he shall, under the direction of the court, depart the State in thirty days, and forfeit his goods and shattels to the State, and his lands and tenements to the persons who would by law be entitled to inherit the same, in case such offender was dead intestate, &c. &c.
N. B. By act of Assembly of March 29, 1787 the above-mentioned oath, with all the shocking penalties of it, was repealed, after it had done infinite mischief in the State, and had kept the party that made it, in the saddle about ten years (which, by the way, I conceive, was the principal design and use of it) and there was substituted in the stead of it, a very simple oath of allegiance, without any of the exceptionable clauses of the former, by which the rights of our citizens are restored, and a happy peace and general satisfaction of our people have succeeded.
[* ] The Constitution of Pennsylvania then newly made (but since abrogated by the late Convention of the State) was greatly opposed by most men of gravity and wisdom, tho’ it was carried by a warm party which prevailed at that time, and was propped up by test-acts, &c.
[* ]Test-acts, at the time this Essay was written, were deemed so important, that any objection to them, or doubt of their use, was cried out upon and reprobated by the violent party which then prevailed in the State, as malignancy against the American independence, disaffection to the government, and a sort of treason. I was insulted and much threatened for writing this Essay. A very angry writer, under the signature of A Constitutionalist, in the Freeman’s Journal of Sept. 28, 1781, undertook to blacken it most effectually; then went on to defend test-acts, and answer my Essay. After applying pretty liberally all the hard words he could think of, he gives the character of it as follows—“Of all publications hitherto exhibited in print, since the establishment of our independence, this Essay is foremost in barefaced and undisguised principles, to toryism favorable; to our Revolution inimical; and of our Constitution subversive:” and then goes on to observe, that every independent State ought to be guarded by some criterion, by which good citizens may be distinguished from bad ones; and that all such States have good right and authority to adopt any such criterion or term of citizenship, which they think proper; and that test-acts are of this kind, &c.
In my reply, published in the same Journal, Oct. 5, 1781, I urge that test-acts have no more connexion with the independent government of the Union, or the Constitution of this State, than with all other governments; but they may be necessary to toryism, as they have been generally most adopted and pressed in the weakest and worst governments;—that I do not dispute the authority of any independent State to make test-acts; it is the expediency only of making them which I object to—that very many good men will refuse them, and many bad men will take them—that the merits and qualities of citizens ought to be taken and estimated by their conduct or overt acts, not by the secrets of their hearts, which are cognisable by Godalone, not by the State, till by overt acts they are made known: the Constitutionalist says, that non-jurors are aliens, not citizens; this I denied; for were they aliens, they could not be bolden to any municipal obedience or duties, such as taxes, services, &c. or be capable of treasons, or crimes against the State, to which (if aliens) they could owe no allegiance—I further urged, that test-acts, where the most that could be, was made of them, amounted to no more than a man’s testimony in his own case, which was not admitted in matters of the smallest moment, and, of course, the most important of all interests ought not to be controlled or limited by it—that pressing test-acts was a sure way to keep alive the most galling frets and discontents in a State, and was very bad policy even in a ruling party, because the same measures might be retorted upon themselves, if they should happen to slip out of the saddle, and their opponents should get into it.—
On the whole I much prefer a government which secures to every man the secrets of his own mind, and makes him amenable for his conduct and overt acts only, rather than one which intrudes on such secrets, and makes the discovery of them on oath a term of the richest and noblest benefits and privileges of society.
If any body may wish to see more of this matter, I refer him to the pieces at large, which are preserved in the Freeman’s Journal, as quoted above.