The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-01-15
THE TEST OATH.
pEasIoN or THE sUPnEME OOURr.
u n Pronounced Unconstitutional by Associates
Wayne, Nelson, Grler, Clifford and Field.
THE DISSENTING OPINION.

Of the United States, to-day, Associate Judge
Fields said he had been instructed to deliver
the opinion in the case OF John A. Cummins,
plaintiff in error, against the State OF Missouri,
involving the constitutlonality OF the test oath
efthat State.
the plaintiff was a Roman Catholic priest
and convicted by the courts for advising and
preaching without having FIRST taken the re-
auired oath, and sentenced to pay a fine OF five
hundred dollars and committed to Jail until
paid On appeal from the Circuit Court, the
Supreme Court Of the State affirmed the judg-
nent. The following is mere outline of the
Opinion:- ...
The oath by the Constitution OF that state inn
poses more than thirty distinct ahirmations and
tests. Some Of them constitute offenses of the
highest grade to which the heaviest penalties
are attached. Some of them are not recognized
bv statute, while others are not blameworthy
They require him not only TO swear that he was
not only not in hostility to the United States,
hut that he never manifested adheTance to the
cause OF the enemy, or desired a triumph over
the arms OF the United States, or that he ever
experienced sympathy for the Rebels, or even
sought 10 promote the ends OF those engaged in
war against the United states authorities or
even left the State to escape enrolment or the
performance of military duties, or ever ex-
pressed his dissatisfaction with the Govern
ment. OH
Every person unable to take this oath was
declared incapable of holding office of trust,
honor or emolument, or of acting as q trustee
or manager OF any corporation, now or hereaf-
ser to be established, or from teaching In any
educational institution, or holding real estate
tOr such religious society congregation, &C.;
and every person holding any such Office at the
time the Constitution went into effect, was re-
quired, within sixty days, to take the oath, in
default of which his office becomes vacant.
No attorney at the Far West or preacher of
any doctrine or order, is permitted TO teach or
False swearing ismade punishable by imprison-
ment in the penitentiary. This oath is without
any precedent in this country which the Court
could discover, 1t is first retroactive, and if
taken years hence would cover the intervening
period. In other countries test oaths were
limited to the present, and were not admins
tered in particular instances Of past miscon-
duct Secondly, the oath is not only directed
against individuals who opposed the acts of the
Government, but denounces their sympathies
and desires. 1t makes no distinction between
acts arising from malignity and acts springing
from affection.
If any one ever expressed sympathy 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
employments specified. The Court admitted
the proposition of the learned counsel of Mis-
souri, that the State possessed all the attributes
Ofsovereignty, and among the rights reserved
qualifications for office and the conditions on
which citizens may exercise their callings and
pursuits within it's jurisdiction, but it by no
means follows that the State can intlict punish
ment for acts which were not punishable when
committed.
1t was evident from the nature of the pur-
suits and professions of the parties placed
under disability by the Constitution of Mis-
souri,, that their acts had no possible relation
to their fitness for their pursuits and profess
Sions. There was no connection between the
allegation that Cummins left the State to avoid
the draft and the administration of the sacra-
ments of his church, can fact of that
kind words of sympathy for those in re-
bellion, show the unfitness of lawyers and pro-
tessors or teachers, or their want OF ability in
acting as managers of corporations 1t was
manifest in the simple statement of their acts
that there was no such relation. The oath could
notb applied as to whether the parties were
qualified or not. q. ...
The oath was intended to reach persons, not
their calling; not because their acts untitled
them for their calling, but because it was
thought their acts was deserving of punish.
ment, and in no way but by depriving them OF
citizenship. The Court did not agree that less
than the deprivation of life, liberty and pro
perty was no punishment at all. A disouali6ca.
tion from holding Office as an impeachment
may be a punishment, also the preventing at
torneys from practicing in the Federal Courts
any person speaking or writing against the
Divine spirit was liable for the first ofiense to
be rendered incapable of holding offices OF trust
or profit, and for thesecond to be sent to prison.
Statute 2, Of George the Third for contempt
against the Kings authority took away the right
TO receive any legacy, deed or gift or vote at
elections for Parliament, with a penalty of e5OO
Blackstone says the loss OF liberty counts in the
loss OF lands and profits Of lands for life and
disabilities from holding offices of honor or
emolument.
Among the Romans, the loss of liberty was a
disability OF all the privileges of members of
the family or citizenship.
In France, deprivation of civil rights and
legislation for Office, or of being guardian or
trustee, or OF being employee in schools or
geminaries Of learning, The theory on winch
our institutions rest is that all men have Ger.
tain inalienable rights, amongst which are life
liberty and the pursuit Of happiness Thus all
places OF honor and position are open to every
one, and all are protected equally under the
law. Any deprivation of rights for past con-
duct is punishment, and cannot otherwise be
defined.
The Court then proceeded to the consideration
of the constitutional question: The ConstiJu-
tion contains what may be deemed a bill of
rights for each State 1t says "no State shall
pass bill of attainder or er post Jacto law" A
bill OF attainder is a legislative act which in
wolves punishment without trial. If less than
death it Is q bill Of pains and penalties. A bill
of attainder includes pains and penalties. They
assume the guilt OF the parties without the safe
guard Of trial, and 1t hxes the degree OF punish
ment in accordance with its own idea of the
offense. Justice Strong says bills of this kind
were mostly passed in England during the re-
belIion in England, or the gross substance of
hem forgetting justice and trampling on the