Oath required by the 1865 Missouri Constitution, later ruled unconstitutional by the U.S. Supreme Court
Test-Oath, MISSOURI.—In January, 1865, there assembled in St. Louis, Missouri, a "Constitutional Convention" composed of individuals, most of whom were unknown outside of the localities in which they claimed to reside. They had been chosen by a fraction of the voters, as people of voting age were generally in either the Confederate or Federal army, or in the guerrilla companies then abounding, or were fugitives from their homes, in order to save their lives. The "Constitution" made by this convention was put in force on July, 1865, no one being allowed to vote on it unless he first took the test oath it provided. A reign of terror, accompanied by arson, robbery, and murder, in many parts of the state followed. Certain classes of persons, including bishops, priests, or other clergymen "of any religious persuasion, sect or denomination", and teachers in any educational institution, were by the provisions of this Constitution allowed sixty days, after July 4, 1865, in which "to take, subscribe and file", the oath prescribed by it. Those who failed to file it, and continued to preach, solemnize marriage, or teach, were subject to fine and imprisonment. The terms of the oath, according to Justice Field of the Supreme Court of the United States, required amongst other things, the affiant to deny, not only that he had ever been in armed hostility to the United States, or to the lawful authorities thereof, but that he had 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 rebellion, or had ever harbored, or aided, any person engaged in guerrilla warfare against the loyal inhabitants of the United States. About the last of July, 1865, a pastoral letter, in Latin, of which the following is a translation, was sent by the Most Rev. Peter Richard Kenrick, Archbishop of St. Louis, to every priest in his diocese, which was then coextensive with the state.
St. Louis, July 28th, 1865.
Reverend Sir: Since under the new Constitution, a certain oath is to be exacted of Priests, that they may have leave to announce God's word, and officiate at marriage, which oath, they can in no wise take, without a sacrifice of ecclesiastical liberty, I have judged it expedient, to indicate to you my opinion the matter, that you may have before your eyes, a rule to be followed, in this extraordinary matter. I hope, that the civil power will abstain from exacting such an oath. But, should it happen otherwise, I wish you to inform me of the particular circumstances of your position, that I may be able to give you counsel and assistance. I am, Reverend Sir,
Your servant in the Lord,
Archbishop of St. Louis.
The state officials ignored this letter, but their party newspaper organ in St. Louis referred to it, "as important in view of the large number of persons whom the Archbishop of St. Louis in one sense, may be said to represent; and further because of the fact that at least three-fourths of such persons, have, throughout the war, been disloyal men". The opposition press was almost silent.
At that time, Rev. John A. Cummings, a young priest, was in charge of St. Joseph's Church at Louisiana, Pike County, Missouri. He had not taken the oath, and he said Mass and preached as usual, on Sunday, September 3, 1865, The court having jurisdiction of crimes committed in this county was held at Bowling Green some twelve miles distant, and convened with its accompanying grand jury on Monday, September 4. Father Cummings was indicted by a grand jury composed of men who had taken the infamous oath, promptly, on the first day of the court, and the charge was, that he acted as a priest and minister of the Catholic religious persuasion without having first taken, subscribed, and filed the oath of loyalty. He was arrested a few days afterwards, and brought into court in the custody of the sheriff on the 8th. When asked to say whether he was guilty or not guilty, he declined to answer, but recited the Apostles' Creed. Hon. R. A. Campbell, subsequently lieutenant-governor of the state, then took charge of his defense at the instance of some of Father Cummings' parishioners, and made the same defense which was afterwards successful in the Supreme Court of the United States. He was tried on the 9th, found guilty, and in default of payment of a fine of $500, committed to jail, and placed in confinement with three persons of the most degraded type, charged with felonies. On September 15, he gave bond, being directed to do so by Archbishop Kenrick, who caused an appeal to be taken to the Supreme Court of Missouri. That court had been, a few months before, reorganized by military force, and its bench filled with men committed to upholding the oath. Father Cummings' appeal was promptly denied in the following month of October, and then his case was appealed to the Supreme Court of the United States. Pending his appeal, many priests and religious were indicted and arrested; amongst others, the saintly Bishop Hogan, of the diocese of Kansas City, Missouri, yet living at the age of 82 years, then a priest at Chillicothe in Livingston County. He made the oath as odious as possible by accompanying the arresting officer to the courthouse, dressed in soutane, surplice, stole, and biretta, carrying in his right hand a crucifix, and in his left a large Bible. He took a change of venue, gave bond, and was finally discharged by the effect of the decision in the Cummings case. In an address to some of his parishioners, referring to his arrest and the oath, he said: "The civil authority has been, ever from the days of Herod, the enemy of Christ. The question, now pending, is not one merely of loyalty or disloyalty, past, present, or prospective. The issue is, whether the Church shall be free or not to exercise her natural and inherent right of calling into, or rejecting from, her ministry whom she pleases; or whether, yielding to the dictation of the civil power, she shall admit those only, who, according to its judgment, are fit for the office."
In Cape Girardeau County, the fanatics did not stop with priests, but indicted eight Sisters of Loretto for teaching. Sisters Augusta and Margaret were arrested by the sheriff, but the others could not be found, and probably fled from their persecutors.
When the case of Father Cummings was heard in the Supreme Court of the United States in March, 1866, there appeared for him, David Dudley Field, Reverdy Johnson, and Montgomery Blair, all three lawyers of national reputation. Notwithstanding the sanctity of the principles involved, the Supreme Court, on January 14, 1867, by only one majority declared the oath void, and thus relieved the priests and nuns of Missouri from further persecution. The effect of the decision in Father Cummings' case is best summarized by Justice Miller in his dissenting opinion in ex parte A. H. Garland (4 Wall 333) where he says of it: "In this case, the Constitution of the State of Missouri, the fundamental law of the people of that state, adopted by their popular vote, declares that no priest of any church shall exercise his ministerial functions, unless he will show, by his own oath, that he has borne a true allegiance to his government. This court now holds this constitutional provision void on the ground that the Federal Constitution forbids it". Father Cummings' health was seriously injured by his brutal treatment, and a few years afterwards he lost his mind, and died a martyr to the cause of civil and religious liberty.
WILLIAM T. JOHNSON