The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-16


Supreme Court-RuIe Requiring
Attorneys to Take the Oath TO be
Rescinded.
In the Supreme Court of the United
States, Monday, Associate Justice fIeid
said he had been instructed to deliver the
opinion in the case of John A. Cummins,
plaintiff in error, against the State of Mis-
souri,. involving the conSttutionality OF the
test oath of that State. The plaintiff was
Roman Catholic priest, and convicted by
the courts for advising and preaching
without having first taken the required
oath, and sentenced to pay a fine of five
hundred dollars, and committed to jail till
paid. On appeal from the Circuit Court,
the Supreme Court Of the State affirmed
the Judgment. The following is mere
outline of the opinion: The oath, by the
Constitution of that State, imposes more
than thirty distinct attirmations and tests.
Some of them constitute offences of the
highest grade, to which the heaviest penal
ties are attached; some Of them are not
recognized by statue, while others are
not blameworthy. They require him
not only to swear that he was not only not
in hostility to the United States, but that
he never manifested adherence to the cause
of the enemy, or desired triumph over
the arms of the United States, or that he
ever expressed sympathy for the rebels,
or ever sought to promote the ends OF
those engaged in war against the United
States authorities, or ever left the State
to escape enrolment or the performance of
military duty, or ever expressed his dis
satisfaction with the Government. Every
person unable to take this oath was de-
clared incapable of holding Offices of trust,
honor, or emolument, or of acting as a
trustee or manager Of any corporation now
or hereafter to be established, or from
teaching in an educational institution, or
holding real estate for such religious So
ciety or congregation, etc. And every
person holding any such Office at the time
the Constitution went into effect was re-
uuired within sixty days to take the oath.
In default of taking the oath his Office be-
comes vacant. No attorney at the bar,
priest or preacher of any doctrine or order,
is permitted toteach or solemniZe marriage
without taking the oath. False swearing
is made punishable by Imprisonment in the
penitentiary.
This oath is without any precedent in
this country which the court could dis
cover. 1t is, first, retroactive, and if taken
years hence would cover the intervening
period. In other countries test o&thS were
limited to the present, and were not adj
ministered in particular instances OF past
misconduct. Secondly, the oath is not
only directed against individuals who OPP
posed the acts Of the Government, but de-
nounces their desires and SympathieS. 1t
makes no distinction between acts arising
from malignity and acts springing from
affection. If any one ever expressed SYM
patty for the rebellion, even if he were
connected BY the closest ties Of blood, he
is declared unable to subscribe to the oath,
and is debarred from the employmcnts
specified. The court admitted the propo-
sition of the learned counsel Of Missouri
that the State possessed all the attributes
of sovereignty, and among the rights re-
served to the States was the power to
determine the qualifications for office,
and the conditions on which citizens may
exercise their callings and pursuits within
its jurisdiction. But it by no means
follows that the State can inflict punish
ment for acts which were not punishable
when committed. 1t was evident from the
nature of the pursuits and professions OF
parties placed under disability by the con-
stitution of Missouri that their acts had no
possible relation to their fitness for their
pursuits and professions. There was no
connection between the allegation that
Cummins left the State to avoid the draft
and the administration of the sacrament OF
his church; nor can fact of that kind, or
words of sympathy for those in rebellion,
show the unftness of lawyers, or profess
sors, or teachers, or their want of ability
in acting as managers or trustees Of corpo-
rations. 1t was manifest on the simple
statement Of their acts that there was no
such relation. The oath could not be APP
piled as TO whether the parties were quail
fed or not. The oath was intended to
reach persons, not their calling; not be-
cause their acts untitled them for their
calling, but because it was thought their
acts were deserving of punishment, and IN
no way but by depriying them OF citizen
ship.
The court did not agree that less than
the deprivation of life, liberty, and pro-
perty was no punishment at all. A dis
qualification from holding office, as an i'm
parchment, may be punishment also,
the preventing attorneys practicing in the
Federal courts. BY the statute % and 10y
of William Third, any person speaking
against the Christian religion, or speaking
or writing against the Divine Spirit, was
liable for the first offence to be rendered
incapable of holding Offices Of trust or
profit, and for the second, to be sent to
prison. Statute 2, George Third, for con-
tempt against the Kings authority, took
away the right to receive any legacy, deed,
or gift, or vote at elections for Parliament,
with penalty of t5O0. Blackstone says