State v. Cummings

• Decision Date: 31 October 1865
• Citation: 36 Mo. 263
• Parties: THE STATE OF MISSOURI, Respondent, v. J. A. CUMMINGS, Appellant.
• Court: Missouri Supreme Court

36 Mo. 263

THE STATE OF MISSOURI, Respondent,

v.J. A. CUMMINGS, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from Pike Circuit Court.

Whittelsey with R. A. Campbell, for appellant.

I. Requiring this oath of a clergyman before he can be allowed to preach, is inconsistent with the principles of government as declared by

the Declaration of Rights in the first article of the Constitution, The provisions of the second article conflict with those of the first, and especially with sections 1, 2, 3, 9, 18, and 27.

What is the Declaration of Right? It is a declaration of the principles upon which the government is founded, the objects it is intended to secure, and of those fundamental rights which belong to the citizen as a man, and not as a member of a political society. It is a limitation upon the powers granted by the Constitution.

It is, therefore, by the principles contained in the Declaration of Rights that the Constitution and all the statutes enacted by its authority are to be construed. The Declaration of Rights is the superior law of the Constitution. It is so stated in the preamble to the Declaration of this New Constitution: “That the general, great and essential principles of liberty and free government may be recognized and established,” “we do declare,” &c.

1. “That we hold it to be self-evident, that all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” What is meant by inalienable rights, if it be not that these rights belong to the citizen as a man because he is a man, and not as a member of civil society, a component portion of the State.

2. The provisions of Art. II. (so far as it affects the defendant) conflict with the 3d sec. of Art. I., as it makes him liable to a punishment to which others who have done the same acts are not exposed.

3. These provisions of Art. II. destroy the freedom of worship, and ttack the freedom of conscience.

In the 9th section of the Declaration, it is announced as one of the great and essential principles of liberty, “that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences;”“that no human authority can control or interfere with-the rights of conscience.”

Freedom of worship implies more than the simple act of private prayer to God, or even of public prayer in the congregation. That there be freedom of worship, it is requisite, not only that the congregation have the liberty of assembling in their churches, but that they also have the right of receiving instruction in their duties to God by the preaching of the minister set over them by their church. If they may only listen to the preaching of him who has a license from the State, they are not free to worship according to the dictates of their OWN consciences, but they are directed by the consciences of those who happened to have the majority of votes, and who therefore controlled the administration by adopting the Constitution.

4. Preference is given by law to one church over another, contrary to section 9, Art. I.--to the loyal over the disloyal church, so called. The church may not have a preacher of their own selection, unless it be one who can take the “oath of loyalty,” so called; and thus the law gives a preference to the loyal church, so called.

5. The preacher accused is compelled to give evidence against himself, and is deprived of his liberty of preaching without trial. In form, he is at liberty to prove his innocence by taking the oath. If he take the oath falsely, he is punished for perjury; if he do not take the oath, he is punished by deprivation of his right to preach, of his office in the church as a preacher.

6. The provisions of Art. II. destroy the freedom of speech. If the preacher has ever, by words uttered, manifested his adherence to the enemies of the United States, or his sympathy with those engaged in the rebellion, then he cannot take the oath, and without taking it he is forbidden to preach; and thus he is punished for his words spoken. What freedom of speech is there when a man can be deprived of his rights for words spoken--words not spoken falsely of his neighbor, but expressive merely of his opinions upon the questions of the day or the hour?

II. Article II., by its provisions, (so far as it applies to the defendant)

is in violation of the Constitution of the United States. it being an ex post facto law, punishing an offence previously committed by a penalty not prescribed at the time of the commission of the act, by increasing the penalty for the offence, and by making an act criminal which was innocent when it was done. (Calder v. Bull, 3 Dall. 186; Fletcher v. Peck, 6 Cranch, 87.) “An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when committed.”

The provisions of the second article, sections 2, 6, 9 and 14, of the New Constitution, so far as they apply to preachers, priests, bishops, and elders, and other religious teachers living in this State at the time of the adoption of this Constitution, come within the intent of this prohibition.

What is a penalty or punishment? It is the depriving a man of a right enjoyed, or the inflicting upon him a pain, by authority of law, in consequence of some act done by him. 1 Black. Com. 7, defines punishment “as the evils or inconveniences consequent upon crimes and misdemeanors; being devised, denounced and inflicted by human laws in consequence of misbehavior in those, to regulate whose conduct such laws were respectively made.”

Let us examine the provisions of Art. II., secs. 2, 6, 9, & 14, and see what they are. By sec. 6, no person may act as bishop, priest, deacon, &c., or teach, or preach, unless he take the oath that he has not done any of the acts specified in sec. 2d of said article. What are the acts specified? We may classify them as follows: 1. That he has not committed treason against the United States--a crime punishable by the Constitution and laws of the United States. 2. That he has not committed treason against the State of Missouri--a crime punishable by the laws of this State prior to the adoption of the New Constitution. 3. That he has not, by word, manifested his desire for the triumph of the enemies of the United States or of this State, or his sympathy with those engaged in the rebellion--words, the utterance of which was not criminal either by the laws of the United States or of this State. 4. That he has not gone from one State to another to avoid the draft into the military service of the United States--an act which Congress might have declared criminal, but did not. 5. That he has not caused himself to be enrolled as a Southern sympathiser, or in sympathy with those engaged in the rebellion, to avoid enrolment or service in the militia of this State. 6. That he has not claimed his privilege as an alien, to secure exemption from service in the army of the United States, or in the militia of this State, after having voted or held office in any State or Territory--acts which were not criminal by any law whatever; for, by the laws of some of the States and Territories, any white male of lawful age can vote after six months' residence.

Now, if the preacher has done any of these acts, he is deprived of the right previously his, and this right is taken away from him as a consequence of his having done the acts; that is, to the penalties previously denounced by law against such acts is added the additional punishment of being debarred from pursuing his calling as a preacher.

This act, then, is punished in a manner in which it was not punishable when committed. Some acts are treated as criminal, and the preacher is to be punished for them, when the acts were not declared criminal by any law in existence at the time the act was done. He is punished, without fair trial by a jury of his peers, without accusation and opportunity for defence given by being confronted with the witnesses.

Sec. 2, Art. II., adds to the penalty of treason as prescribed by the U. S. Constitution, the additional penalty of the right to practice law, the right to teach even in private, and the right to preach as an officer of any church organization. It takes the form only of requiring a license, but under this form is the penalty of crime. (Dorsey's Case, 7 Port. Ala. 295; Opinion of Trigg, U. S. Dist. Ct. Tenn., Newspaper report.)

2. The provisions of Art. II. have the effect of a bill of attainder, which the States are prohibited from enacting by the Constitution of the United States. It is in fact a bill of pains and penalties, declaring a general forfeiture of the right to preach and teach as bishop, priest or deacon, &c.

By using the general term “bill of attainder” in the Constitution, it was intended to cover also the cases of bills of pains and penalties. (Sto. Com. Const. § 1344 & 1373. (See opinion of Iredell, J., in Calder v. Bull, 3 Dall. 386.)

In the case at bar, the defendant, if he have done any of the acts specified in sec. 3, Art. II., forfeits the right, previously his, of preaching, and can be restored to that right only by taking an oath of innocence. Every priest or minister is charged with crime, but may take an oath of purgation; if he do not take the oath, forfeiture follows, and that is a punishment--a penalty--a pain. Such was the object of the provision, such is its effect.

III. These provisions of Art. II., §§ 3, 6, 9 & 14, of the New Constitution usurp the powers of the federal Government by undertaking to punish offences against the United States.

The sovereignties of the United States and of this State are distinct and exclusive. The legislative jurisdiction over offences against the United States is exclusively in Congress. A State cannot assume jurisdiction of offences against the United States; it cannot give such jurisdiction to its courts, nor can Congre...