Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-19


E1 o5mpiiancc with the order OF the
guFt ws Stale ihai the following report B.
from the shorthand notes Of Mr. ID. =
Murphy. one Of the conductors Of the Re-
r1-irr
Mr. justice Field delivered the opinion
of the clurt an thc case Of John A. Cum.
miuEs Va the state Of Missouri
This case c1mes before us on a writ Of
error % the supreme Court OF Missouri.
lnd involves reconsideration Of the test oath
imposed hy the cons.itution Of that State
TIE plaintiff in error il q priest Of the R3-
man Caiholic Church. and Was indicted and
convioirt iu one Of the Circuit courts Of that
stEie 81 the crime Of teaching and preach
ing. az priest and minister Of that ciigious
denomination. without having fr1 taken
The cath, and was sentenced % pay a fine
of $500. ard 90 be committed 10 Jail until
the sane vas paid. On appeal 10 tbe Su-
preme Court of the State, the judgment was
affirmed.
The oath prescribed by the constitution,
divided into its separable parts, embraces
more than thirty distinct affirmations OF
tests. Some el the acts against which It is
directed constitute oaenses Of the highest
grade, 10 which, upon conviction, heavy
penalties are attached Some Of the acts
have never been classed az olienses In the
laws Of any State, and some Of the acts.
under many circumstances, would not be
blameworthy. To requires the afiant %
deny not oniy fhat hc has ever been in
armed hostility b. The United States, or the
Lawful authorides thereof but, among other
things, tsci he has ever. by act or wore"
manifested has adherence % the Cause o.
the enemies OF the United States, foreign OF
domestic, on biz desire for their triumph
over the arms Of the United Siatea on bis
sympathy with those engaged in rebellion.
or that be has ever harbOred or aided anv
person engaged in guerrilla warfare against
the loyal inhabitants Of the United States,
or has ever entered or len the State for the
purpose Of iding enrolment or draft in
the military srvice Of the United States OF
20 escape the performances Of duty In the
militia Of the United States, or has ever in
dicated, IN any terms, his disaheetion 70
the government Of the United States IN its
contest with rebellion.
Every person who was unable 10 take
.his oath is decl ared 10 be incapabIe of
holding in the State ANY Office Of honor.
trust, or profit under its authority, or Of
being an officer, councillor, director. OF
trustee, or other manager, Of any incorpo-
ration, public or private, now existing or
hereafter established by It's authority, or Of
acting as professor or teacher in any educa-
tional institution, or in any common or
other school, or Of holding any real estate
or other property in trust for the use Of any
% ffr.
And every person holding any Of the Off
ces, trusts, or positions mentioned at the
time the constitution takes effect is re-
quired within thirty days thereafter 10 take
the oath, ana if he fail 10 comply with this
requirement, il is declared that his Office.
trust, or position shall ipao facto become va
cant And no person after the expiration
Of the sixty days is permitted, without
taking the oath, "to practice as an attorney
or counselor az law, nor, after that period.
can any person be competent as bishop.
priest, deacon, minister, elder, or other
clergyman OF any religious persuasion, sect,
or religion 70 teach or preach or solemnize
marriages.' Fine and imprisonment are
prescribed as a punishment for holding or
exercising any Of the Offices, positions,
trusts, professions or functions specified
without having taken the oath, and false
swearing or Affirmation TO tie oath is de-
cIared 10 be perjury, and punishable bv inn
prisonmeni IN the peuitentiary.
The oath thus required Is without any
precedent that we can discover for It's se-
verify. In the frst place il is Retrospective.
lt embraces all the past from this day, and
If taken years hence, il will also cover all
The Intervening period In England and
France there have been test-Oaths, but they
have always been limited to an affirmation
Of present belief or present disposition to-
wards the government, and were never ex-
acted with reference to particular instances
of past misconduct. In the second place.
the oath is directed not merely against
overt and visible acts Of hostility 10 the
government. but il intended 10 reach
words, desires, and sympathies also and,
in the third place il allows no distinction
between acts springing from malignant en-
nifty, and acts which may have been
prompted by charity, or affection, or rela-
tionship. II one has ever expressed sym
pat with any who we're drawn into the
rebellion, even II the recipients Of that
sympathy were connected BY the closest
ties Of blood, he is as unable 20 subscribe
10 the oath as the most active aad most
cruel Of the Rebels, and is equally debarred
from the Offices Of honor and trust and the
positions and employments specified.
But az IL was observed by the learned
counsel who appeared on behalf Of the
State Of Missouri this court cannot decide
this case upon The Justice or hardship Of
these provisions. lts duty Is 20 determine
whether they are in conflict with the con-
slituiion Of the United States. On behalf
Of Missouri it isurged that these provisions
only prescribe a qualification for holding
certain offices and practicing certain CALI
ings, and are, therefore, within the power
Of the State TO adopt On the other hand
It il oontended that these provision are in
conflict with that clause of the constitution
which iorbids any State 10 pass bill of
attainder or &c posi- faoio law.
We admit the proposition Of the counsel
for Missouri, that the State which exists
previous % the adoption Of the Federal
constitution possessed originally all the
attributes Of sovereignty; that they still
retain those attributes, eIcop as they have
been surrendered hy the formation Of the
constitution and the amendments thereto
that tho new States, upon their admission
into the Union, became invested with equal
rights, and were thereafter subject only %
similar restrictions; and thnt among the
rights rcsorved 20 the States Is the right of
each State 10 determine the qualifications
for Office, and the conditions upon which
its citizens may exercise heir various call
ings and pursuits within its jurisdiction.
These are general propositions, and involve
principles Of the highest moment. But Il
hy no means follows THAI under the form OF
creating qualification or attaching a con-
dition, the States can in effect indict q
punishment for a past act which was not
punishable ct The time il was committed
The question j. not as to the existence OF
the powers Of the Stale ever matters Of in
iernal police, but whether that power ha,
been made in the present case an instru-
ment Cor the lnaictiono noipunishment against
the inhibition Of the constitution.
Qualifications relate % the fitness or ca.
p8city Of the party for a particular pursuit
orprofession Webster defncs the term d
mean any natural endowment or anv &C.
quiremcnt which fits a person for 6 place
office OF employment or enables him tC
sustain any character with success IL /,
evident from the nature Of the pursuits ant
professions Of the parties placed under dis
abilities b. the constitution. OF Missouri
that the acts from the i8iut Of which the,
must purge themselves have no possible re
lation 90 their fitness Tor those pursuits any
professions. There can be no connection
betueen the fact that Mr. Cummings en-
tered or lgh the State of Missouri. 90 avon,
enrolment or draG in the military seryic
of the United States, and his fitness 90 tescl
the doctrines 0r administer the sacrament
ofhis church. Nor eau q fac, Of this kind
or the expressions OF words Of sympsth
with persons drawn into the rebellion. con