Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-01
THE MISSOURI TEsr-OATR
Ii il Pronounced UncORstitu fional by
the United States supreme Court

% OF the court III the case OF JOnu A. Ou
'As mings VS.. the state of Missouri.
This case comes before us on writ
10 error to the supreme court of Nilsson
81 and involves consideration Of the te
90 oath imposed by the constitution OF IL
~ state. The plaintiff in error is pri
- of the Roman Catholic church, and "
.es indicted and convicted, in one 0f t
circuit courts Of that state, of the criI
- of teaching and preaching, as a prit
as and minister Of that religious denomin
tiOn, without having first taken the Oat
IN and was sentenced TO pay fine of S5C
er and TO he committed TO Jail until Il
same was paid. On appeal to the s
"a preme court of the state, the judgmel
was affirmed.
It The oath prescribed by the constit
,y ton divided into its separable parts, en-
braces more than thirty distinct affirmi
e tiOns or tests. Some Of the acts again
Il which il is directed constitute otfenses
IT the highest grade, TO which, upon ecI
IS victiOn heavy penalties are attachtl
Some Of the acts have never been ciasse
as ofIenses in the laws of any state, an
p some Of the acts under many circun
e stances would not be even blameworthy
L 1t requires the affiant to deny not Onl
n that he has ever been in a mood hOstil
) to the United States or the lawful au
Q thOrities thereof, but, among othe
things, that he has ever "by act o
word " manifested his adherence to tn
cause of the enemies of the Unite,
States, foreign or domestic, or his desir
for their triumph over the arms of TIL
United States, or his sympathy witt
those engaged in rebellion, or that h'
has ever harbOred or aided any person
engaged in guerilla warfare against the
loyal inhabitants of the United States, Ol
has ever entered or left the state for the
purpose of avoiding enrolment or drafi
in the military service of the United
States, or TO escape the performance Oi
duty in the militia of the United States,
has ever indicated in any terms his dis
affection 10 the government of the
/ United States in its contest with rebel
lion.
Every person who is unable to take
/ this-Oatb is declared incapable of holding
/ in the state 4" any office of honor, trust
or profit under its authority, or of being
/ an officer, counsellor, director orr trustee,
/ or other manager, OF any incorporation
public or private, now existing or here
/ after established by its authority, or of
acting as professor or teacher in any edu-
catiOnal institution, or in any common
/ or other school, or of holding any real
estate or other property in trust for the
use Of any church, religious society, or
congregation" And every person hold
| ing any OF the offices, trusts, or positions
mentioned at the time the constitution
takes effect, is required within thirty
days thereafter to take the oath, and if
he fail TO comply with this requirement,
it is declared that his office, trust, or
position shall ipso factO become vacant.
An no person after the expiration of the
sixty days is permitted, without taking
the oath, " to practice as an attorney or
counsellor at law, nor, after that period,
can any person be competent as bishop,
priest, deacon, minister, elder, or other
clergyman OF any religious persuasion,
sect, OF religion, to teach, or preach or
s0lemniZe marriages. Fine and i'm
prisOnment are prescribed as a punish
ment for holding or exercising any of the
offices, positions, trusts, professions, or
functions specified without having taken
the oath, and false swearing OrSafiirma-
tion to the oath is declared to be perjury,
and punishable by Imprisonment in the
peuitentiary.
The oath thus required is without any
precedent that we can discover for its
severity. In the first place it is retro
spectiye. 1t embraces all the past from
this day, and if taken years hence, il
will also cover all the intervening period.
In its retrospective feature, it is peculiar
TO this country. 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-
ward the government, and were never
eKacted with reference to particular in
stances Of past misconduct. In the sec
p - fnl AN
merely against overt and visible acts of
hostility to the government, but is in
tended to reach words. desires3 and SYM
psthies also (; and, in the third place, it
allows no distinction between acts
spTinging from malignant enmity, and
acts which nSy have been prompted by
charity, or affection, or relationship. IL
one has ever expressed sympathy with
any who were drawn into the rebellion,
even if the recipients of that sympathy
were connected by the closest ties Of
blood, he is as unable to subscribe to the
oath as the most active and most cruel
of the rebels, and is equally debarred
from the offices of honor and trust and
the positions and emplOyments specified.
But, as it was observed by the learned
counsel who appeared on behalf OF the
state Of Missouri, this court cannot de-
eide this case upon the justice or hard
ships of these provisions. Its duty is to
determine whether they are in conflict
with the constitution of the United
States. On behalf of Missouri it is
urged that these provisions only prescribe
a qualification for holding certain offices
and practising certain csllings, and are
therefore within the power Of the state |
to adept. On the other hand, ii is con- |
tended that these provisions are in con- |
aict with that clause of tie constitution !
which forbid5 any state to pass a bill of |
attSinder or eX post factO law.
We admit the propositions Of the cOun- |
sci for Missouri, that the states which |
existed previous to the adoption of the |
federal constitution possessed originally |
all the attributes of sovereignty that /
they still retain these attributes, except |
as they have been surrendered by the |
formation OF the constitution and the |
amendments thereto; that the new |
states, upon their admission into the |
union, became invested with equal /
rights, and were thereafter subject only |
to similar restrictions; and that among /
the rights reserved to the states is the |
right Of each state to determine the quail /
itications Of office, and the conditions |
upon which its citizens may exercise /
its jurisdiction. These are general propo- |
sitions, and involve principles OF the |
highest moment. But it by no means /
follows that under the form of creating |
a qualification or attaching a condition, |
the states can in effect infiict a punish |
ment for past act which was not pun
ishable at the time it was committed. |
Tie question is not as to the existence OF !
the power Of the state over matters Of |
internal police, but whether that power /
has been made in the present case an |
instrument for the infiictiOn Of punish |
ment against the inhibition Of the con- |
stitatiOn.
Qualifications relate to the fitness of /
capacity Of the party for a particular |
pursuit or profession. Webster defines /
the term TO mean {" any natural eudow-
ment or any requirement which fits a /
place, office or employment, or enables /
him TO sustain any character with sue /
cCss." 1t is evident from the nature of |
the pursuits and professions Of the parties
placed under disabilities by the constitu- |
tiOn Of Missouri, that the acts frem the /
taiut Of which they purge themselves
have no possible relation to their fitness /
for those pursuits and professions. There /
can he no connection between the fact /
that Mr.. Cummings entered or leit the /
state Of Missouri TO avoid enrolment OF /
draitin the military service of the United |
States, and his fitness TO teach the doe
triues or administer the sacraments of
his church. Nor can a fact of this kind, |
or the expression Of words of sympathy
with peTsOns drawn into the rebellion, |
constitute any evidence of the unfitness
of the attorney or counsellor to practice
his profession, or of the professor TO teach
the ordinary branches Of edGcAtiOH, or OF
the want Of business knowledge or busi-
ness capacity in the manager Of a corpo-
ration, or units directors or trustees. 1t
is manifest, upon the simple statement Of
the ACTS and the professions and pursuits,
that there is no such relation between !
them as TO render a denial Of the eem-
mission Of the acts at ali appropriate
as q condition Of allowing the exercise Of
the profession and pursuits. The oath
could not, therefore, have been required
as a means Of ascertaining whether par
ties were qualified or not for their re-
spectiye Sailings, or the trusts with
which they are charged. It was re-
quired in order 10 reach the person, not
the calling. 1t was exaeted not from
any notion that the acts designated indi-
Gated untitneSs for the calling, bat be-
cause the acts were thought to deserve
and there was no way to
punish the persons who had committed
Them but by depriving them of some of
the rights ana privileges or the citizen,
The disabilities created nv tha consti |