New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1867-01-15
THE TEST OATH.

OPINIONS OF CHlHi-'
c,.rrs MILLER. swAYNE AND DAVIS
81, r,trstlPn 10 THE TRIBUNE ,o c,-,r4 e
b' tl,~7o,, Ian. 1A-Il the Supreme Conrt OF
49,, s-,.s TODAY Asso,iatcJustlc' Ii'Iu s'iu no
81 l.cp instructed 10 deliver the oll'- - , - So, -
Jobn A. Cummius, Ilaiutlti 90 l est o,.
missouri involving the coH'-'
of that State. ~. C,4,,lic r1fcst and con-
Inc p'l-, .ts for advising and preaching without
Fl0'0" " - tteu tine required oath ana sentenced 10
A"''"s - ~ $500 and committed to jail until rmd. on
lay n o Circuit Court, the supreme Court Of the
s!a,e affirmed the Judgment
slIso "-rovrinrf il an ottue 81 the opirion:
Tn ib y the Constitution Of that state imposes more
than thirty dsiinc. If lie flclt grade 70 which the
Son,,,t penaltics are attached some OF them are not
etat1e % 70 swear mat he was not in hostility 10 the
yited States but that lc never tcd conference 70
1r1 of tbe United States or that he ever expressed
vTinat, for the Rebels or ever Sought 10 promote the
ends Gi o or ccT II me stale 10 escape enrolment or
tle performance Of lnAiaIE doly or ever eAlI,>.c1
abls 10 take this oath declared Incapable 81 hold
ing office q trust, hono or Gl ac1nE as rIstTe OF
entitled. or of teaci.s n any educational Institutions
oshidO, ,a estate for religious societies copgrega
Iu &c And every person holding such office at the
timc the Constitution went into eject was required
within co DAYS take the oatn ara ~ defat el taxing
she oath his office became vacant No attorney at tne
bar priest or preacher is permitted 70 caeh or solnIe
v11rTiacc without taking the "ajh. fuse swearing j.
made punishable ly luIriNJun' 10 IN ne feittltaiN
This oath is without any li9tca'i ~ ms c',i9 MI 6
tlc Court c0th fs'o'c ~ l' it>t I,It"'Ii.e' anu =
taken years hence would cover NE iier elng period
n OfIcr cOuntr test odh~ limited 90 the present,
and were not administered IN particular instances Of
misconduct So. AZ,
rourrcs their desires and sYmlathies II makes no dis
tnction between acts arising from malgmty ana acts
sprnring from affection. If expressed sym
patty the Rebellion even lac were connected by the
fhc oah and is dlblrred from The employment specified
The Court admitted the proposition of'the learned
NI- 80 fN
am t5c attIhrfss Of severe nty and amorg The rights
reserved to the state was The power to determine ne
qualifications for office and Lc conditions on which cji
Gems may exercise their caic> ana pursuits within Ms
jurisdiction; buf hyuo means follows that the state can
Efct punishment FOR acts which were not punishable
when committed II was evident, from the nature Of the
t. by the Constitution Of Missouri that their acts had
no possible relation 10 Their iitneSs ioT dlsI
between the allegation that Cmnmins l,ft Oh, state
Of the Sacrmcnts Of his church. nor can tact OF tLat
Kind, words Of sympathy Tor those IN rebellion, snow
the unttness OF aWle professors Ul on men
ratiOnS IL manifest on the simple statement oil clr
that there no such relation The oath could not
be applied whether tie parties qualified or rot
Che oath was intended TO reach persons rot then eans;
but because thought their acts were deserving Of
punishment in no way but by mymg them Of citizen
s 13 V M y fr,n 6frirc ~ an Iapcsch
ment may be puuishmcrti also, the preventing
ATTORNEYS practising The Federal courts. by
fbe statute . and 10 Of William IIId any person
OF writing against the Divine Spirit liable Tor The
Of trust or profit, and for the second TO prison.
Etatute p George ND. for contempt against thc
legacy, deed or gift or vote at elections Tor P1qmGI
consists in the loss lands profits Of lands for LIE
end disabilities from holding offices II honor or tmoU
fnent Among the Romans. tie loss Of liberty dis
ability Of all privileges member of the
family or citizenship. In France deprivation
Offices or to be guardian or trustee to he empoye
tn schools or Summaries Of learning. The theory on
Inst fuff - at
tnaenabe rights, among which were life, liberty, and
che pursuit OF haplneSs 1Hus al la'1tr % nul,t i
equally under the law. Any deprivation OF rights for
knn,esd.. '-'''''' - '- ' w
The Court then proceeded to the consideration Of the
constitutional question. Ihe CONSTITUTION S.Ai"lIs
what may be deemed a bill OF rights. II
says no state sha Pfst ot, G ef aIld5
act which involves punishment trial lilies, than
death it IS bill Of pains and penalties bill Of attain
der includes pains and penalties; they assume the guilt
OF the parties without the afcguaId Of trial and xcs
the degree Of punishment In accordance WITH S own
We're mostly passed in England during tie rebellion IL
England or the gross substance Of Them iorg lu,ce
orally directed against the individuals by name. $50
and his abtos c6ufcdcraes or adherens should tand,
and be attained aud convicted Of high treason n though
fe fact So the declaration in the time of Charles the
Second that Earl Carolan should suffer exile:
If the Third article Of the Constitution OF Missouri had
stated in terms that Cnmmns was guilty Of beng IN
armed hostility TO the United States and had SAID be leit
Gore deprived n his right 10 teach IN the INSTITUTIONS OF
' IN yey 81 HE Copstjfnt"n IN lie clause H.
stead Of mentioning his name, had declared al persons
open to ojectioh and if It bad declared that eli such
persons would be held guilty provided that 10y day
specfied they did do certain acts, that would b.,
within the Constitutional Inhibition In oil these cases
st would be legislative Judgment, without the form of
security Of citizens established ~ our tribunals. Inc
question presented one OF form and not Of substance
The existing clause prcsunes parties guilty, from which
they cannot release themselves MlAot an eNPTEloi!
oath. 1t is certain the legal result that what cannot
zion deals with substance not with shadow. IL aims at
things not names. CEicJustlcc Marshall says an cX
not punishable at Tie time it was committed,
imposes penalties additional 10 those then prescribed,
or different testimony Thatcher against Peck makes IL
tIpc the dct was oomnitt,d Tie act 70 which Judge
Marshall makes reference passed by the Legislature
OF Georgia repeating previous act by which land had
effect OF post 1Gcto law The clause OF the Mis-
sOuIi Constitution did not fl terms define any crime or
declare punishment infcied, but presumed the same
result II the crime had been defined and the punish
ment prescribed II aimed Of some persons who directly
indirectly had aided the ls bclAon or escaped proper
responsibility Of citizens in time Of war, and was IN,
tended deprive certain persons OF Offices Of trust ana
emoument. fuch deprivation Is punishment, nor is II
way whchts opened by an expuIgatoy oath. Now some
1t then Ofcse 10 avoid the enrolment or the
draft, hOwmuchsOeVer might be matter or censufe
Bone OF the acts which the Constitution directed
oifenscs the time, but the clause which precrbes
further penalties within the nature Of an T post Jaco
Tie clause in question suhvers the presumption Of in
common law fundamental IT presune the party 10
DE guilty and declares their innocence can be shown only
In way, and that BY eXpurgation Put this clause
he form Of legislative act, and would read, BE IL
acted etc, that all persons ia armed hostility the
United States SHALL on conviction, only le punished
as the law provided at the time OF the Offense but also
rendered Incapable Of holding offices trust honor
or emOulnent, exercise the office Of teacher or
priest etc No could doubt that this third article If
khus rendered would be post JQO because IL would be
edding punishment for an old 0ifensefor an Of
Iense not punishable az tne ne OF le enactment IL
-ceedings.
The Constitution Of Missouri imposed oath which II
would be impossible for all to take. The Constitution Of