Three Cheers for Father Cummings

Three Cheers for Father Cummings

DONALD RAU

Copyright 1976, Supreme Court Historical Society
from the Yearbook 1977 Supreme Court Historical Society

I, John Cummings, do solemnly swear that I am well acquainted with the terms of the third section of the second article of the Constitution of the State of Missouri, adopted in the year eighteen hundred and sixty-five, and have carefully considered the same; that I have never, directly or indirectly done any of the acts in said section specified; that I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic; that I will bear true faith and allegiance to the United States, and will support the Constitution and laws thereof as the supreme law of the land, any law or ordinance of any state to the contrary notwithstanding; that I will, to the best of my ability, protect and defend the Union of the United States, and not allow the same to be broken up and dissolved, or the government thereof to be destroyed or overthrown, under any circumstances, if in my power to prevent it; that I will support the Constitution of the State of Missouri; and that I make this oath without any mental reservation or evasion, and hold it to be binding on me.

This is the oath that Father John Cummings, young pastor of St. Joseph's Catholic Church in Louisiana, Missouri, refused to take. When he nonetheless offered Mass and preached to the people of his parish on Sunday, September 3, 1865, he was arrested and subsequently sentenced to pay a fine of five hundred dollars and to be committed to jail until said fine and costs of suit were paid.

According to section three of the second article of the Constitution, disloyalty to the United States included giving "aid, comfort, countenance, or support to persons engaged in any such hostility" or manifesting, "by act or word . . . his adherence to the cause of such enemies, or his desire for their triumph over the arms of the United States, or his sympathy with those engaged in exciting or carrying on rebellion against the United States."

Those branded as disloyal included a person who had "ever been a member of, or connected with, any order, society, or organization inimical to the government of the United States, or to the government of this state," or who had ever "come into or has left the state for the purpose of avoiding enrollment for or draft into the military service of the United States. . . ." It included anyone who had ever, for any purpose whatsoever, "enrolled himself or authorized himself to be enrolled by or before any officer, as disloyal or as a Southern sympathizer, or in any other terms indicating his disaffection to the Government of the United States in its contest with rebellion, or his sympathy with those engaged in such rebellion."

John Cummings was not unique in his refusal to take the test oath. Priests and ministers throughout the state refused to do so. Neither was he unique in his arrest. Priests and ministers throughout the state were arrested for preaching and solemnizing marriages without having first taken the oath. Cummings was unique only in his refusal to accept bail, and in his insistence on being jailed instead.

Father Cummings was an obscure priest, but two years ordained, when he was arrested. When he died, some eight years later, he had returned to oblivion. For a brief time, however, he was a person of importance, and his struggle with the Radical establishment typified the problems and divisions which beset Missouri in the years immediately following the Civil War.

The test oath and the registry act were the key provisions of the program, designed to take control of the state and to keep control of it in the hands of the Radicals. These measures were designed to disenfranchise their opponents and once they made sure that their men sat on the registry boards, passing on the qualifications of all voters, their control of the state was assured.

Although the machinery for the registration of voters was not provided by the legislature until December of 1865, the test oath enacted by the new Constitution was put into effect immediately, and was applied even in the election to ratify the new Constitution itself. Even so, the new Constitution of 1865 was enacted by only a narrow margin, a majority of 1,835 in a total vote of 85,769. The Constitution was actually rejected by the civilian voters by nearly 1,000 votes. The military vote provided the margin of victory.

This requiring of an oath was not just the act of an individual military commander, as was the suspension of Rev. William M. Rush of Chillicothe from his duties as a minister by Colonel Walter King. Neither was it the action of an individual aberrant group of Union soldiers, such as the murder of Rev. John L. Wood, a preacher of the Methodist Episcopal Church, South, in 1864. It was not an act done under the excuse of martial law, as was the arrest of Revs. D. J. Marquis and J. B. H. Wooldridge of the Methodist Episcopal Church and the Rev. George Johnson of the Baptist Church. Quite the contrary, it was a carefully considered ordinance, enacted by the ruling convention of the state, a part of the organic law of Missouri. Even so, it was not as yet retroactive for ministers and other professional men and women. It demanded only a promise by the minister and others that they would be loyal to the Union from that time on, if they wished to continue to function in the state.

Even the McPheeters controversy, despite the fact that there was a dispute within the church itself, seems to be an abuse of military authority, an interference in the internal affairs of a church, and, in that sense at least, a step toward the oath of 1865. In 1860 Dr. McPheeters, although on temporary leave of absence as a military chaplain, was pastor of the Pine Street Presbyterian Church. His troubles began when, as a member of the General Assembly of the Presbyterian Church meeting in Columbus, Ohio, in May of 1862, he opposed a paper on the state of the country. His reasoning was that the church should not meddle in the affairs of the "civil commonwealth." Bernard Farrar, then the provost-marshall of St. Louis, had threatened to arrest him upon his return, and a small minority of the members of the Church demanded a statement from him of his views on the current Rebellion. When Dr. McPheeters refused to answer, denying the right of the members of the church to require such a statement from their pastor, Major General Curtis deposed him as pastor and exiled him from Missouri.

Dr. McPheeters went to Washington to appeal to President Lincoln. The President surprised General Curtis by suspending the order, but he ultimately agreed in his letters of January second and third, 1863, to leave the final decision with General Curtis. He concluded his letter of January second with the following admonition.

"But I must add that the U.S. government must not, as by this order, undertake to run the churches. When an individual, in a church or out of it, becomes dangerous to the public interest, he must be checked; but let the churches, as such take care of themselves. It will not do for the U.S. to appoint Trustees, Supervisors, or other agents for the churches."

When Dr. McPheeters was quietly allowed to resume control of the Pine Street Church about a year later, George Strong brought the case into Presbytery, "that was so controlled by the military that most of its members could not conscientiously attend, because they would not stultify themselves by subscribing to an oath of loyalty.... " Two of the members of the board, "Rev. W. H. Parks and Rev. A. D. Madeira, were actually put in a military prison, to prevent them from being present at a meeting [of] the Presbytery at which Dr. McP's case was to be issued. These and other brethren, being thus kept away, the pastoral relation between Dr. McP and the Pine Street Church was dissolved `at the point of the bayonet.'" President Lincoln was again appealed to, but this time refused to help, since the action had been taken by the church itself and he was unwilling to interfere, on either side, in church affairs.

The McPheeters affair did not reach its final conclusion until after the end of the war, in September of 1865.

The reaction to the test oath, among the clergy in Missouri, ran the gamut from enthusiastic approval to cries of persecution. Most religious leaders, even most of those who had taken the oath themselves, condemned it for one reason or another. Some were content to poke fun at it, others merely fulminated against it, while still others attempted to subject it to a logical analysis so that its iniquity would stand out in even sharper relief.

Archbishop Kenrick, on the contrary, saw the oath as an infringement of religious liberty and determined that it must be resisted at the outset. He did not believe that the oath was constitutional, and he instructed the priests of the state not to take the oath. "The next thing we know," said the venerable Archbishops in sending out these notices, "they will be dictating what we shall preach."

William Seward, the Secretary of State, considered the loyalty of the Archbishop to be sufficiently suspect that he asked Archbishop Hughes, one of the most vocal of the Union Bishops, to have Archbishop Kenrick transferred to a less critical See. Archbishop Hughes forwarded the letter to the Archbishop of Baltimore, Francis Patrick Kenrick, who assured Mr. Seward that Peter Richard, his brother, constituted no danger to the Union cause in Missouri. If Archbishop Kenrick was not an enthusiastic supporter of the Union, neither was he a supporter of the rebel cause. He refrained from preaching for two years at this time, lest his words would seem to favor one side or the other. Perhaps it is closest to the truth to say that his sympathy lay with neither the North or the South, but with peace.

In actual fact, the test oath was not enforced in St. Louis County (which then included the city of St. Louis) or any area in which public feeling ran strongly against the Radical oath.

Governor Fletcher tried to make his position on the matter as clear as possible. The test oath was the law of the state, and it would be enforced, until the courts struck it down.

"State of Missouri, Executive Department,

"City of Jefferson, August 25, 1865

"DEAR SIR: In reply to your note of 21st inst., I can only say that the provisions of the Constitution requiring an oath of ministers and teachers, are to be construed by the courts.

"Any question as to the right of the people of the State to make such provisions in their fundamental law, will be for the higher judicial tribunals of the country to determine. Pending their decision, the law must be regarded as valid and of binding force.

"My action in enforcing these and all other laws will be strictly within the scope of the legal powers conferred on me and I shall require, on the part of all citizens, that their acts in giving force to this law be done in a legal manner.

"Law-abiding men will, I presume, cause warrants to be issued for persons who violate the law by preaching or teaching without first taking the oath, or who may take it falsely; and will cause them to be bound over to appear at the next Circuit Court of the county to answer indictments for their offenses. The whole military force of the State will be at the command of the officers of the law, to enforce legal process in this as in all other cases. The Constitution, in all its provisions, is the highest law of the State, and so far as my official action is concerned, I need not repeat to you, what I have so often publicly said, that all the duties devolved upon the Executive by law for enforcing it, will be in due time and in a proper manner, fully performed.

"Very respectfully,

"your obedient servant,

THO. C. FLETCHER"

As Governor Fletcher indicates, this is but what he had been saying at appearances throughout the state, since the enactment of the new Constitution. "He reinforced his arguments by the discomforting suggestion that arrangements would be made for enlarging the penitentiary to accommodate all clergymen and teachers who refused to take the oath while continuing the functions of their offices."

As late as September 11, 1895, the Republican still thought that the test oath would not be enforced.

"A week has elapsed and we have not yet heard of arrests of ministers or teachers for not taking the iron-clad oath of the new Constitution. Quite a number of clergymen in this city and throughout the State preached to their congregations last Sabbath without having done the swearing provided for by the instrument mentioned; showing that there are those in Missouri who cannot be frightened into a recognition of the right of a set of Radical politicians to regulate or interfere with the dissemination of the Gospel.... If there has been a single arrest in the State for preaching or teaching without taking the oath, we have not heard of it. It appears doubtful whether any Grand Jury in Missouri can be found to bring in an indictment against a minister for expounding the word of God and omitting to declare under oath that he has always been truly loyal to the Government. Several of the Grand Jurors empaneled last week in this county, though they took the oath themselves, protested that they could not conscientiously indite [sic] a preacher for not doing likewise. The Governor blusters a good deal about enforcing the law, but even his partisan friends, some of whom we must believe, go to church on a Sunday and know that clergymen have preached without reference to the restrictions of the new Constitution, put themselves no trouble to have the recusants arrested and placed in course of fine and imprisonment. The whole thing, indeed, turns out to be a dead letter."

On Sunday, September 3, 1865, Father Cummings, "a very modest gentlemanly little fellow, of about twenty-two or twenty-three years of age," offered Mass and preached as usual to his small congregation. On September 4, the Pike county authorities packed a Grand Jury with Radicals, which proceeded to indict him for preaching without taking the test oath. He was arrested and on the "Friday following he was arreigned [sic] before his Honor, Judge Fagg, as a criminal. The indictment was read to him by the Circuit Attorney, and he was asked to plead to it, and did so by saying that he was `guilty,'" The Court seems to have been taken taken by surprise at Father Cummings's refusal to give bail and ask for a postponement. It was to be a day of surprises for them, since they were equally unprepared for his plea of guilty.

Judge Fagg then indicated that nothing remained but for sentence to be passed against him, and, after a further embarrassed pause, asked the accused if "he had anything to say why the sentence should not be passed against him." Father Cummings then made what even those favorably inclined called a "religious stump speech--directed to the audience rather than the Court, entirely proper in itself, but not entirely pertinent to the occasion." The main thrust of his argument seems to have been that the test oath was a persecution of Catholics and, after defending the patriotism of Catholics, concluded with the claim that he had violated no rightful law.

Senator Henderson happened to be in court in his connection with his practice of law. Even though a Radical, he rose to Father Cummings' defense, at least insofar as he pointed out to the Court that Father Cummings' statement really amounted to a plea of not guilty, since he had claimed, in effect, that the law imposing the test oath was invalid. Even though Senator Henderson castigated Father Cummings for his claim that the oath was an infringement of religious liberty, he offered to defend him in Court.

As a result of Senator Henderson's intervention, Judge Fagg eventually permitted Father Cummings to change his plea to "not guilty." After Senator Henderson's offer of assistance was twice refused, "the priest placed his case in the hands of Robt. A. Campbell, esq., ... and the trial set for next morning." The trial the next day was a mere formality. All agreed that the Court should sit as a Jury and since all the facts in the indictment were admitted, the Court found "the defendant guilty in the manner and form charged in the indictment" and assessed his fine at the sum of $500. He was returned to jail until the fine was paid.

It was to be another day of surprises for the Radicals. Much to their chagrin, Father Cummings refused to pay his fine or to post bond for an appeal, and refused to permit anyone else to pay his fine for him. The reaction of Father Cummings' parishioners at Louisiana must have added considerably to the discomfort of the Radicals. They refused to accept the imprisonment of their pastor without protest. "Father Cummins' [sic] parishioners came up from Louisiana, and camping about the dungeon of their beloved shepherd, were in much the same frame of mind as the children of Israel when they set down and wept by the rivers of Babylon."

If Father Cummings wished to generate publicity for the plight of clergymen in Missouri under the new Constitution, he succeeded admirably. Even before the test oath went into effect, it had attracted attention in newspapers in various parts of the country. Now that the non-juring clergy had a martyr, the publicity was much increased. The local conservative papers made much of his arrest and the type of people with whom he was thus forced to associate. Newspapers in various cities made his name known around the country, and many of these reports were critical of the Missouri Radicals.

As far as can be determined from the rather confused state of Father Cummings' original defense, his plea was that he was the victim of a religious persecution, and that the test oath was invalid, either as unconstitutional under the First Amendment to the Constitution, or invalid under some principle of the natural law, guaranteeing freedom from state interference to the Church of Christ. This, at least, seems to be the general point of his somewhat rambling defense of the patriotism of Catholics in general, and Phil Sheridan in particular, and his references to the sufferings of Christ.

The defense presented in the appeal to the Supreme Court of Missouri was somewhat more elaborate and better reasoned. R. A. Campbell listed eight points for the consideration of the Court. First, "That there is no evidence in this cause of any offense against the laws of the State of Missouri, and the defendant ought to have been acquitted by the Court below." Second, the third section of Article two of the new Constitution, dealing with the test oath, is a bill of attainder, and is accordingly unconstitutional. Third, this same section is in violation of the Constitution, since it is an ex post facto law. The fourth, fifth and sixth points, which he makes, are based on conflicts between Article 2, sections 3, 6, 9 and 10 and sections 9, 27 and 28 of the bill of rights of the new Constitution, which provide that freedom of worship and freedom of speech shall not be abridged, and that no ex post facto law shall be enacted. The final argument, made in points 7 and 8, alleges that this section of the new Constitution is invalid, "because it is an attempt by the State to legislate in regard to offenses against the United States, and to create and punish offenses against the United States."

Charles C. Whittelsey was the other attorney for Father Cummings in his appeal of his conviction to the Supreme Court of the State of Missouri. His first argument relies on the Bill of Rights of the new Missouri Constitution. He argues that the test oath for the clergy is in conflict with various provisions of the Missouri Bill of Rights, and alleges a conflict not only with the 9th and 27th clauses of the Bill of Rights, but also with Sections 1, 2, 3, and 18. According to his theory, these provisions of the Bill of Rights, as an expression of the fundamental principles of government, are as much a limitation of the other provisions of the Constitution, as they are of subsequent legislative enactments. Furthermore, insofar as any of these rights are proclaimed as inalienable rights, they are rights which belong to a man, as a man, rather than as a citizen of the state. In other words, these are rights which are not given by the state, and accordingly cannot be taken away by the state.

Mr. Whittelsey amplifies the claim that the test oath is a violation of religious liberty, by explaining that religious liberty means more than freedom to pray privately, or even freedom to pray publicly in a group. It demands also the freedom to receive instruction by the preaching of a minister. If citizens may listen only to a minister who is licensed by 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." Furthermore, preference is given to one Church over another under the Constitution; preference to the so-called loyal Church over the so-called disloyal one.

It was said that the Radical party had decided to abandon the test oath for the clergy, and felt that the least embarrassing way to do so would be for the Radical Supreme Court to declare it unconstitutional, on appeal of the verdict. However, the state high court sustained the trial court.

The Cummings case was immediately appealed to the Supreme Court of the United States. Archbishop Kenrick had lost hope that the Missouri legislature would repeal the test oath for the clergy and felt that the best hope lay in an appeal to the highest federal court. Several of the most eminent lawyers in the country were engaged for the appeal. In addition to Montgomery Blair, the brother of Frank Blair, a prominent conservative politician in Missouri, the Archbishop secured the services of David Dudley Field, well known as the author of the Field code and brother of Stephen Field, one of the Justices of the Supreme Court, and Reverdy Johnson, another well-known constitutional lawyer.

Justice Field gave the opinion of the Court. After a brief summary of the case and of the pertinent provision of the Constitution of 1865, he begins with a denunciation of the oath.

"The oath thus required is, for its severity, without any precedent that we can discover. In the first place, it is retrospective; it embraces all the past from this day; and, if taken years hence, it will also cover all the intervening period. In its retrospective feature we believe it is peculiar to this country. In England and France there have been test oaths, but they were always limited to an affirmation of present belief, or present disposition towards the government, and were never exacted with reference to particular instances of past misconduct. In the second place, the oath is directed not merely against overt and visible acts of hostility to the government, but is intended to reach words, desires, and sympathies, also. And, in the third place, it allows no distinction between acts springing from malignant enmity and acts which may have been prompted by charity, or affection, or relationship....

"But, as it was observed by the learned counsel who appeared on behalf of the State of Missouri, this court cannot decide the case upon the justice or hardship of these provisions. Its duty is to determine whether they are in conflict with the Constitution of the United States."

Justice Field next determines that the test oath is indeed a bill of attainder, and therefore unconstitutional. He defines such a bill as "a legislative act which inflicts punishment without a judicial trial." He continues:

"In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense."

He notes particularly that Mr. Justice Story says that history shows us that these bills have usually been enacted either in times of servile subserviency to the crown, or in times of violent political excitement, "periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others."

The Court, having held the test oath unconstitutional both as a bill of attainder and as an ex post facto law, concludes with a discussion of the iniquities of test oaths. It quotes Alexander Hamilton at some length regarding a New York statute enacted shortly after the peace treaty of 1783, ending the Revolutionary War. This statute required a similar expurgatory oath. Hamilton held that such oaths effectively overturned the presumption of innocence until proven guilty. "This was to invert the order of things; and, instead of obliging the State to prove the guilt, in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty." Finally, such oaths, in a certain sense, destroy the right to trial by jury, "substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one recognized by the laws and constitutions of the State."

T he Yearbook 1977 Supreme Court Historical Society