In re Oath

• Decision Date: 31 October 1867
• Parties: THE MURPHY AND GLOVER TEST OATH CASES.
• Court: Missouri Supreme Court

41 Mo. 339

THE MURPHY AND GLOVER TEST OATH CASES.

Supreme Court of Missouri.

October Term, 1867.

THE STATE OF MISSOURI, Respondent, v. DAVID H. MURPHY, Appellant.

Same v. PATRICK A. RYAN.

Same v. BENJAMIN F. MILES.

Appeal from Cape Girardeau Circuit Court.

Davis & English, for appellants.

McWilliams, for respondent.

THE STATE OF MISSOURI v. ASHAEL MUNRO.

Appeal from Cape Girardeau Circuit Court.

Dryden & Lindley, for appellant.

THE STATE OF MISSOURI v. HENRY STROMBERGER.

Same v. same.

Appeal from Scott Circuit Court.

English & Green, for appellant.

McWilliams, for respondent.

THE STATE OF MISSOURI v. SAMUEL T. GLOVER.

Appeal from St. Louis Criminal Court.

^a1Whittelsey, for appellant Glover.

The defendant was indicted and found guilty of having practiced as an attorney-at-law, after the adoption of the new Constitution, without first having taken and filed the oath of loyalty prescribed by secs. 9, 6, 3 and 14 of art. 2 of that instrument.

It was admitted upon the trial that the defendant had been regularly admitted and licensed to practice law in all the courts of this State, by virtue of the laws in force, sixteen years ago, and that he had since continued to practice in the courts up to the time of the finding of this indictment, and that he had not taken the oath of loyalty as required by sec. 9, art. 2, within sixty days after the Constitution went into effect.

The defendant prayed the St. Louis Criminal Court, upon the facts admitted, to declare several propositions of law, which were refused, and, a motion for new trial being overruled, the case is brought up by appeal.

Before presenting the propositions of law and commenting thereupon, let us first know the true position of the parties, so as to learn what principles may be applicable to the facts. The defendant has been a citizen of and residing in this State for sixteen years, and was duly licensed to practice, and was enrolled upon the records and practiced in the courts. His case, therefore, must be judged by different rules, and, in part, upon different principles, from that of one for the first time applying for admission to the bar. The defendant claims his right to practice law, no matter what the extent of that right may be, from the Constitution and laws in force at the time he was permitted to practice. We consider the right thus given as a franchise, which belonged to him for life, and which could not be taken away except as a punishment for some offence committed, some law violated. The particular character of this right or franchise we defer to a subsequent part of our argument; it is sufficient for our present purpose that the provisions of the new Constitution, art. 2, secs. 3, 6, 9 and 14, do act upon and affect antecedent rights, privileges, or franchises; that the right which the defendant enjoyed before the new Constitution was formed, is taken away sixty days after that instrument goes into effect. It is taken away from him without alleging and proving that he has committed any crime, or violated any law; his license is taken away peremptorily, without cause assigned, and he may procure a new license upon taking and filing the oath prescribed. The old right is forfeited, and a new right must be obtained.

The first proposition which I present is--That the provisions of the new Constitution, art. 1, secs. 3, 6, 9 and 14, so far as they apply to attorneys previously citizens of the State of Missouri, and under its former laws duly licensed and admitted to the practice of law, are in violation of the Constitution of the United States, for the reason that they are in the nature of a bill of attainder, or a bill of pains and penalties, and therefore null and void.

We must therefore consider the nature and character of bills of attainder, which really include bills of pains and penalties. I find upon examination that it will not do to rely simply upon the definitions of the later text writers, writing upon a subject which at the time possessed no particular interest.

“Bills of attainder are said to be (2 Sto. Const. § 1344) such acts of the Legislature as impose capital punishment upon persons supposed to be guilty of high crimes and offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If they impose a milder punishment than death, they are called bills of pains and penalties. Bills of attainder may include bills of pains and penalties, they may affect the life of an individual or his property, or both.” and, I add, they may affect his person, and not his life; his personal, civil, or political rights, and not his property. I define a “bill of attainder.” in its most general sense, as a legislative enactment by which the legislative power affixes upon any individual by name, or upon any class of persons by description, any pain, penalty, punishment, or stain, either as consequence of some past acts by them done, or not done, or from the mere will of the sovereign power.

In my argument in the case of Cummings, which was prepared hastily, I took the simple statements of Blackstone as giving the whole history and law of attainder; but examinations of the history of attaints, judicially and by legislative enactments, have convinced me that I was too hasty in taking up an opinion, and that the thing forbidden by excluding “bills of attainder” was more comprehensive that I had supposed. Upon an argument addressed to a court, I must not give a historical essay; but every good lawyer knows that you can never determine what a law really is until you have learned where and how it emanated--what were the feelings, beliefs and wants of society which gave it being--and how it has been gradually elaborated and made to serve the purposes of society, or o those who controlled the government.

Attainting was the attaching to the person a stigma, from which by law certain consequences, more or less extensive, were made to follow The principal consequence was forfeiture of lands and tenements, goods and chattels, as in cases of felony; to which was added in some cases, corruption of blood--4 Black. Com. 94, definition of Felony.

As felonies and crimes punishable by forfeiture were generally, in the early English law, also punishable with death, some writers have spoken of attainder as if death was always a part of the penalty or consequence of the attainder, which is a mistake, as we shall show. “Attainted,” in the old English statutes, is generally used as equivalent to the words “adjudged to the penalties of” the crime named; sometimes it is synonymous with the common use of the word ““convicted,” as implying not only the verdict of guilty, but the judgment upon such verdict. I shall give instances of the various uses of the word to prove the correctness of my definition.

Blackstone says “attainder” was the consequence of the judgment which condemned the criminal for a capital offence--4 Blk. Com. 381. It would have been more correct to say that “attainder” was the judgment itself, and that its consequences are forfeiture, &c., of lands, goods and personal rights, and corruption of blood.

Death was not always the consequence of an attainder. For instance, a party attainted of a præmunire did not forfeit his life; death was not the penalty attached to a judgment in such cases. By stat. 16, Rich. II., ch. 1, the penalty ordained in cases of præmunire was, that the offenders were to be out of the King's protection, to forfeit their lands and goods to be imprisoned and detained at the King's pleasure: and if the of fenders were not found they were to be outlawed.

“Attainder of præmunire'DDDD' is a common term used in the old English law books and statutes. In Lord Vaux's case, 1 Bulst. 197, he was adjudged to be out of the King's protection, to forfeit lands, tenements, goods and chattels to the King, and to be imprisoned during life. In Grosse v. Gayer, Cro. Car, 193, 172, Tregosse was indicted for a præmunire, attainted by verdict, and the question was, did the attainder in a præmuire have relation back to the time of the offence, or only to the time of he judgment?

There was an “attainder by abjuration,” by abjuring the realm, and also an ““attainder by outlawry.” Attainder was distinct from forfeiture, for the corruption may be saved and the forfeiture remain--See Jac. Law Dic., Outlawry, Præmunire, Abjuration.

By act 27 Eliz. ch. 2, directed against Jesuits and priests of the Church of Rome, priests coming into the realm, except in special cases, were to be adjudged guilty of high treason. By sec. 5 of the act, every person receiving such were declared guilty of felony, to suffer death, and lose and forfeit as in cases of one attainted of felony.

By the act of 5 Eliz., ch. 1, also directed against the Catholics, it was enacted “that every person, who by writing, printing, teaching, preaching, or by deed or act setting forth and maintaining the jurisdiction and power of the bishop of Rome, &c., their aiders and abettors, should incur the penalty of præmunire prescribed by statute of 16 Rich. II. By sec. 5, all officers in the kingdom of every description, all officers in the church, all persons admitted to degrees in the universities, all schoolmasters, and public and private teachers of children, were to take the oath of abjuration and allegiance prescribed by Stat. 1 Eliz., ch. 1, § 19; and by sec. 8 it was provided that all persons refusing to take such oaths, and convicted or attainted at any time thereafter, should suffer the penalties of præmunire; and by sec. 10, for refusing to take such oath when tendered the second time, they were to suffer the penalties of treason. Sec. 21 of the same act provided that it should not be lawful to kill any one “attainted of a præmunire.'DDDD' Section 23 uses the word “attainted” as equivalent to “to be convicted.”

The act 3 of Jas. I., ch. 4, also directed against the Catholics, and similar to that of Elizabeth, and providing similar penalties, made...