Evening star., 1943-07-16
President Recalls
Historic Decision
BIZ J. A. For.

President Roosevelt went back to q
historic case Of the Civil War period
earlier this week In quoting the Supreme
Court definition Of bill Of attainder-
"a legislative act which inflicts punish
ment without judicial trial"-and in
ferentially putting in this category the
congressional restrictions on the further
employment OF DR.. Robert Morss Lovett,
Government secretary of the Virgin Is
lands, and Goodwin B. Watson and Will
liam E. Dodd, jr., of the Federal Commu-
nicat.ons Commission.
The phrase was used by Justice Field,
in December, 1866, in writing the opinion
by which the court reversed the convic-
ton in Missouri Of a Catholic priest by
the name of Cummings, who was fined
$500 with the alternative of Jail SEN
tence, for teaching and preaching"
without first subscribing to an oath OF
loyalty to National and State govern
ments, prescribed by the State constitu-
ton. Secession was burning issue
when constitution convention met in
1865, and the oath-taking procedure was
incorporated by the assembly in q rep
ressive program aimed at supporters and
sympathizers of the Confederacy, who
were denied the rights of suffrage and
barred from positions Of public trust.
Those taking the oath affirmed that IT
have always been truly and Loyalty on the
side OF the United States against all
enemies thereof, foreign and domestic"
n vriI Ro1J
execution was made prerequisite for
the exercise Of clerical functions. When
the priest, presumably an advocate of
the Southern cause, did not conform,
prosecution was instituted in the Pike
County Court, and the resultant convic-
tion was upheld by the State Supreme
Court.
The war was over before the constitu-
tional requirement became effective, and
when the Cummings case finally reached
the Supreme Court of the United States,
defense counsel, who included the famed
Reverdy johnson of Maryland, attacked
1t not only as violation of the guarantee
of religious freedom, but of the added
constitutional prohibition against enact
ment by the States of bills of attainder
and ex post facto laws.
1t was the latter point that was
stressed by the majority, as the decision
nullifying the law was rendered by a
divided court.
Justice Field characterized the severity
OF the restrictions laid upon Confederate
sympathizers as without any precedent
that we can discover" and declared that
the ordinary forms and guards provided
Tor the security of the citizen in the
administration of justice by the estab-
hshed tribunals" were set aside by the
Missouri constitution. The conditions
surrounding the oath-taking imposed on
members OF the clergy constitute a bill
OF attainder within the meaning of the
Federal Constitution" the court said
bluntly, adding also that the Constitu-
ton intended that the right of the citizen
should be secure against deprivation for
past conduct by legislative enactment
under any form"
Against this background, the presumed
analogy between the Cummings case, and
That which now has embroiled President
Roosevelt with Congress, becomes doubt
1ul, for while the former involved
criminal prosecution, with threat to the
freedom OF the defendant, the issue in
the latter is simply the employable
status Of the three individuals who were
accused by the Dies Committee of SUBJ
Versive associations
Tt SoaDnS r1aar hououor %t,a4
1nltely Is constitutional question raised
and that is whether Congress has not
ln1rlnged the prerogatives of the execu-
tive branch OF the Government by order
Ing the men of the payroll, unless they
should be reappointed by the President
and their retention Is approved by the
Senate.
President Roosevelt has CHALLENGED
that action as an encroachment on his
powers, and he can find support for this
contention in two often-quoted Supreme
Court decisions-in one of which. para
doxically. he sustained a sharp defeat at
the hands OF the court The first came
In the Myers case, decided in 1926, when
the court, in an opinion by Chief Justice
Ia1t, held unconstitutional law reuuir-
ing Senate concurrence for the President
to remove postmasters The court said
that for Congress to have the right to
participate in the removal of inferior
ofdcers of the executive branch would
infringe the constitutional principle of
the separation of governmental powers !"
Again, in 1884, while holding that Pres
1dent Roosevelt improperly had removed
Federal Trade Commissioner William E
Humphrey from Office, the court, in an
opinion by Justice Sutherland, took occa-
sion to affirm the exclusive and illimit-
able power of removal by the Chief Exec
utive' within the framework of the
executive agencies.
The Myers and Humphrey cases
reached the Supreme Court by virtue of
suits filed in the Court of Claims for
unpaid salaries, officials concerned in
both claiming money due for the un-
served portions of their statutory terms
1nasmuch as this time element is lack
ing In the present case, it is not certain
how a court test could be obtained
granted IT. was deSirod