Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-22
QDRlo. States'irllrrI'a;lr,r.. "a 1.
THE MISSOURI TEST OATH.
HtiS Pronounced Unconstitutional
by the UnIIed states Supreme
Court.

lrIUm tuo WV AOth ihp9sl
The following is the opinion in the Mis-
souri test oath case, alluded to in the de-
cision respecting the test oath in the Su-
Tuesday morning. The report Is from the
short-hand notes of Mr.. d. L. Murphy, one
of the conductors of the Reporter: ..r
Mr.. Justice Field delivered the opinion
OF the Court in the case of John A. Cum
mings o. The State of Missouri.
This case comes before us on writ Of
error to the Supreme Court of Missouri, and
involves a consideration Of the test oath
imposed by the Constitution of that State.
Tic plaintiffin finerror Is priest ofthe Roman
Catholic Church, and was Indicted aud con-
victed, In one of the Circuit Courts OF that
State of the crime OF teaching and preach
ing, as a priest, and minister of that relig-
iOus denomination, without having first
taken the oath, and was sentenced to pay a
fine of $500, and to be committed to Jail un-
til the same was paid. On appeal to the
Supreme Court of the State, the judgment
was affirmed. ...
The oath prescribed by the Constitution,
divided into its separablc parts, embraces
more than thirty distinct allirmatlons or
tests. Some of the acts against which 1t is
directed constitute ofenscs of the highest
grade, to which, upon conviction, heavy
penalties are attached. Some Of the acts
have never been classed as Ollcnses in the
laws of any State, aud some of the acts UNI
der many circumstances would notev be
blame mewoIthy. 1t requires the atliant to
deny not only that he has ever been in
armed hostility to the United States or the
lawful authorities thereof, but, among
other things, that he has ever, "by act or
word," manifested his adherence to the
cause of the enemies of the United States,
foreign or domestic, or his desire for their
triumph over the arms of the United States,
or his sympathy with those engaged in re-
belliOn, or that lie has ever harbOred or aid
ed any person engaged in guerrilla war
fare against the loyal Inhabitants of the
United States, or has ever entered or lett
the State tor the purpose OF avoiding en-
rollment or draft IN the military service of
the United States, or to escape the perform
ance OF duty in the militia of the United
States, has ever indicated in any terms his
disaffectlon to the Government of the Uni
ted States in its contest with rebellion.
Every person who is unable to take this
oath is declared incapable Of holding in the
State "dny Office of honor, trust, or profit
under its authority, or of being an officer,
councillor, director or trustee, or
other manager, of any Incorporation,
public or private, now existing or
hereafter established by its authority,
or of acting as professor or teacher
In any educational 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 con-
gregation." And every person holding 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 ii he iail to comply with
this requirement, it is declared that his
office, trust or position shall tpsO Jdcto be-
come vacant. And no person after the eX-
piration of the sixty days. is permitted,
without taking che oath, Ito practice as an
attorney or counselor at law, nor, after that
period, can any person be competent as q
bishop, priest, deacon, minister, elder, or
other clergyman OF any religious persua-
sion, sect or religion, to teach or preach or
solemnize marriages" Fine and imprison-
ment are prescribed as 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 the
oath is declared to be perjury, and punish
able by imprisonment in the Penitentlary.
The oath thus required is without any
precedent that we can discover tor its sever
ity. In the first place it is retrospective.
1t embraces all the past from this day, and
if taken years hence, it will also cover all
the intervening period. In its RETROSPECT
tive feature, it is peculiar to this country.
In England and France there have been
test oaLhs, but they have always been lim-
tied to an affirmation of present belief or
present disposition toward the Govern
ment, and were never eXacted with refer
ence to particular instances of past mis-
conduct. In the second place, the oath is
directed not merely against overt and Wis
ible acts of hostility 10 the Government,
but is intended to reach words, desires and
sympathics also; and, in the third place, it
allows no distinction between acts spring
ing from malignant enmity, and acts which
may have been prompted by charity, or af-
fcction, or relationship. If one has ever
expressed sympathy with any one who
were drawn into rebellion, even If the re-
cipients 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 cruel of rebels, and is equally debarred
from the offices of honor and trust and the
positions and emplO yments specified.
counsel who appeared on behalf of the
State of Missouri, this Court cannot decide
this case upon the Justice or hardship of
these provisions. Its duty is to determine
whether they are in conflict with the Con-
sttution of the United States. On behalf
of Missouri 1t is urged that these provisions
only prescribe qualification for holding
certaiu offices and practicing certain CALI
ings, and are therefore within the power of
the State to adopt. On the other hand, it
is contended that these provisions are in
conflict with that clause of the Constitution
which forbids any State to pass a bill of at
tainder or eD post fdcto law.n njf aa 4Wi
We admit the propositions of the counsel
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 those attl tlibutes, 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 qualifications
for office, and the conditions upon which
its citizens may exercise their various cali
ings and pursuits within its jurisdiction.
These are general propositions, and involve
principles of the highest moment. But It
by no means follows that under the form of
creating qualification or attaching con-
dition, the States can, in effect inflict pun
ishment for a past act which was not pun
ishable at the time it was committed. The
question is not as to the existence Of the
power of the State over matters of internal
police, bat whether that power has been
made In the present case an instrument for
the iufliction of punishment against the
inhibition OF the Constitution. 4. ui lOiu3 oh
Qualifications relate to the fitness or ca