The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1867-01-18
Test -Oaths Unconstitutional
Decision Of the Supreme Court

ciate Justice Field said he had been in
structed to deliver the opinion OF the
court in the case of John A. Cummins,
plaintiff in error, against the state Oh
Missouri, involving the constitutional
ty of the test-Oath in that State. =.
The plaintiff was q Roman> Cathonc
priest. and convicted by the courts for
advising and preaching without hrss
having taken the required oath, and
sentenced to pay fine ofS5Oo, ana com,
mitted to Jail until paid. An appeal
from the Circuit Court to the Supreme
Court of the State affirmed the Judg-
ment.
The following is mere outline OF the
opinion: The oath by the constitution
Of that State imposes more than thirty
distinct affirmations and tests. Some
of them constitute offences of the high
est grade, to which the heaviest penal
ties are attached. Some of them are not
recognized by statute, while others are
not blame-worthy. They require him
not only to swear that he was not In
hostility to the United States, but that
he never manifested adherence to the
cause of the enemy, or desired triumph
over the armies of the United States, or
that he ever expressed sympathy for the
rebels, or ever sought to promote the
ends of those engaged in the war against
the United States authorities, or ever
left the State to escape enrolment or
the performance of military duty, OF
ever expressed his dissatisfaction with
the government. 90
Every person unable 70 take TINS
oath was declared incapable OF holdln
any office Of trust, honor or emolument,
or of acting as a trustee, or manager ol
any corporation, now or hereafter to he
established, or from teaching in any ed,
ucational institution, or holding real
estate for such religious society or con
gregation, &c, and every person hold
ing any such office at the time the con,
stitution went into effect was required
within sixty days to take the oath; IN
default of taking the oath his office be-
came vacant. No attorney at the bar
priest or preacher Of any doctrine was
permitted to solemnize marriage With
out taking the oath.
False swearing is made punishable 10y
Imprisonment in the penitentiary. This
oath is without precedent in this coun
try, which the court could discover. II
is first retroactive, and, if taken, years
hence it would cover the intervening
period. In other countries test-oath'
were limited to the present, and were
not administered in particular instances
of past misconduct. Secondly, the oatl
| is not only directed against individual
who opposed the acts of the government
but denounces their desires and sympa
thies. 1t makes no distinction between
acts arising from malignity and act
springing from affection. IT any ont
ever expressed sympathy for the rebel
lion, even if he were connected by the
closest ties of blood, he is declared un
able to subscribe to the oath, and is de
barred from the employment specified
The court admitted the proposition O
the learned counsel of Missouri, tina
the State possessed all the attributes o
sovereignty, and among the rights re
served to the States was the power II
determine the qualifications for Office
and the conditions on which citizens
may exercise their callings and pnr
suits within its jurisdiction, but 1t by
no means follows that the State can IN
hict punishment for acts which were
not punishable when committed. Il
was evident from the nature OF pursuit!
and professions of the parties placed
under disability by the constitution O
Missouri, that their acts had no possible
relation to their fitness for their pur
suits and professions. There was n(
connection between the allegation thai
Cummins left the State to avoid th'
draft, and the administration OF thu
sacraments of his church; nor can n fac,
of that kind, or words of sympathy fol
those in rebellion, show the untitness o
LAWYERS, or professors or teachers, OF
their want of ability in acting rs man,
ayers or trustees of corporations. II
was manifest on the principal statement
of their acts that there was no such re
lation. The oath could not be applied
as to whether the parties were qualliied
or not. The oath was intended tc
reach persons-not their calling; not
because their acts untitled them for theil
calling, but because it was thought
their acts were deserving ofpunishmen1
and in no way but by depriving then
of citizenship. The court did not agree
that less than the deprivation of life,
liberty and property was not punish
ment at all. disqualification from hold
ing office as an impeachment may be
a punishment, also the preventing at
torneys practicing in the Federal courts
By the statutes and 10 of William Ill
any person speaking against the Christ,
ian religion, or speaking OF writing
against the Divine spirit, was liable for
| the first offence to be rendered incapa
BILE of holding offices of trust or profit
and for the second, to be sent to prison.
statute 2, George III, for contempt
against the Kings authority took away
the right to receive any legacy, deed ol
Gift, or vote ut elections for Parliament
With q penalty of f500. Blackstone
saws the loss of liberty consists in the
loss of lands, or profits of lands, fol
/ life, and disabilities from holding offices
of honor or emolument. Among the
Romans the loss of liberty was disa,
bility of all the privileges of members
of the family or citizenship. In France
deprivation of civil rights and legisla'
tion for office, or of being guardian OF
trustee, OF being employed in schools OF
seminaries of learning. The theory on
which our institutions rest is that "all
men have certain inalienable rights
among them life, liberty, and the pur'
suit Of happiness" Thus, all places OF
honor and position are open to every
one, and all are protected equally under
the law, and deprivation of rights fol
past conduct is punishment, and can
not otherwise be defined.
The court then proceeded to the con-
sideration Of the constitutional ques-
ton. The constitution contains what
may be deemed q bill of rights for each
State. 1t says: mo State shall pass q
bill of attainder or ex post facto law"
A bill of attainder is legislative act
which involves punishment without
trial. If less than death, it is bill OF
pains and penalties. They assume the
guilt of the parties without the safe
guard of trial, and it fixes the degree OF
punishment in accordance with its own
ideas of the offence.
Justice Story says bills of this kind
we're mostly passed in England during
the rebellion. Such bills are generally
directed against individuals by name.
By the Eighth Henry it was declared
that Earl Kildare and his abettors and
confederates or adherants should stand
ond no ,ff,;pa1 ond conyicfed of hiuh