# Klinger v. Missouri

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United States Supreme Court
80 U.S. 257
Klinger v. Missouri
ERROR to the Supreme Court of Missouri; the case being thus:
By the third section of the second article of the constitution of Missouri, adopted in April, 1865, it was declared in substance that no person who had ever engaged in the rebellion, or had manifested any sympathy therefor, in any way, should be deemed a qualified voter, or be capable of holding any office, or being a councilman, director, or trustee of any corporation, or of being a professor or teacher in any seminary of learning, or of holding property in trust for a church or congregation.
By the sixth section (one more particularly referred to in the present case), an oath was prescribed to be taken by all persons occupying, or entering upon, the positions referred to in section third, beginning as follows:
'I, A. B., do solemnly swear that I am well acquainted with the terms of the third section of the second article of the constitution of the State of Missouri, adopted in the year 1865, and have carefully considered the same; that I have never directly or indirectly done any of the acts in said section specified; that I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic, &c.
By the eleventh section it is declared 'that every court in which any person shall be summoned to serve as a grand or petit juror shall require him, before he is sworn as a juror, to take the said oath in open court; and no person refusing to take the same shall serve as a juror.'
By the twelfth section, 'If any person shall declare that he has conscientious scruples against taking an oath, or swearing in any form, the said oath may be changed into a solemn affirmation, and be made by him in that form.'
On the 25th of December, 1868, President Johnson issued his proclamation, by which he did
'Proclaim and declare, unconditionally, and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and laws which have been made in pursuance thereof.'
The constitution of Missouri, above referred to, being in force, and the said proclamation of President Johnson having issued, one Max Klinger was indicted for the murder of Henry Werder, in the Criminal Court of the County of St. Louis, Missouri, and was convicted in October, 1869, and sentenced to be executed on the 16th of December, 1869; but having taken a bill of exceptions and a writ of error to the Supreme Court of Missouri, his sentence was respited.
The bill of exceptions taken on the trial of the case contained in its first paragraph what here follows; this paragraph being the only part of the bill which referred to the subject of any refusal to take the test oath:
'Be it remembered that this cause coming on to be heard and tried in said court, the marshal proceeded to call the jurors summoned in the same, and whilst empanelling the jury, it was found that one of said jurors, named Andrew Park, refused to take the oath of loyalty prescribed by the constitution of this State, whereupon the said Park was duly sworn to answer such questions as might be propounded to him, and being asked by the court why he refused to take said oath, he stated and declared that during the late rebellion he was a sympathizer with the Confederate cause, and earnestly desired its success; that these were his opinions and sentiments then; that he thinks so stronger now than he did then; that he was born in the South; that his heart was with the Southern cause, and that for these reasons he could not conscientiously take the proffered oath; thereupon the court of its own motion discharged the said juror, against the consent and objection of the defendant, to which action of the court the defendant excepted.'
Among the errors assigned before the Supreme Court of Missouri, of which there were ten, was this one (the only one cognizable here):
'That the court erred in excluding and discharging from the jury, the said Andrew Park, against the objections and consent of the defendant, for no other reason than that the said Andrew Park declined to take the oath prescribed in the sixth section of the second article of the constitution of the State of Missouri.'
The case is reported in the 43d volume of the Missouri Reports; but it does not appear by the report there that this point was raised or passed upon by the Supreme Court of Missouri. However, the judgment of the court below was affirmed, and the case was now brought here by the prisoner under an assumption of his counsel that it was within the 25th section of the Judiciary Act; a matter to the establishing of which, as a preliminary point, the attention of counsel for the plaintiff in error was directed on the calling of the case.
Mr. W. H. Russell, for the plaintiff in error:
Has this court jurisdiction under the 25th section? We think that it has. The Constitution of the United States declares that 'the trial of all crimes, except of impeachment, shall be by jury.' The sixth amendment to the Constitution, that 'the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed;' and the fourteenth amendment that no 'State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.'
Right to trial by jury is thus sought by our organic law to be secured in absolute fulness and perfection.
Now the Criminal Court of St. Louis excluded Park for no other reason than that he declined to take the oath of loyalty prescribed by the sixth section of the second article of the constitution of Missouri. But that section is repugnant to the Constitution of the United States; and has by this court been so declared. It was an ex post facto law, and therefore unconstitutional. Moreover, the proclamation of amnesty issued by President Johnson, was a complete pardon for all the acts specified in the third section of the second article of the constitution of Missouri, and relieved Park from all guilt, and restored him to all his rights, privileges, and immunities as a citizen.
The decision of the Supreme Court of Missouri was in favor of the validity of the authority exercised by the Criminal Court under the constitution of Missouri, and against the right thus existing under the higher Constitution of the United States, and the President's pardon under it. Jurisdiction, therefore, exists in this court to re-examine. There has been drawn in question the validity of an authority exercised under a State, on the ground of its being repugnant to the Constitution or laws of the United States, and the decision has been in favor of such its validity.
No counsel appeared for the State of Missouri.
Mr. Justice BRADLEY delivered the opinion of the court.

## Notes

* ↑ The State of Missouri v. Max Klinger, 43 Missouri, 127.
* ↑ Art. III, § 2.
* ↑ Cummings v. State of Missouri, 4 Wallace, 277.
* ↑ Ex parte Garland, 4 Wallace, 333; and see supra, 154-6; Armstrong v. United States; Pargoud v. United States.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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