Cummings v. Missouri

The citation for this case is 71 US 277. This Reconstruction Era case comes to us courtesy of the Missouri Constitution of 1865.

Unionists in Missouri were split between conservatives and radicals. The radicals, who wanted to grant civil rights to African-Americans, gained control of the constitutional convention. An abolition clause passed easily, as did provisions for civil rights for African-Americans. “The convention which assembled to draft this document showed its temper at the outset by enacting a series of ordinances supplementary to those of the continuing convention of 1861-63. These decrees proclaimed the abolition of slavery (as distinguished from the emancipation of the slaves of insurrectionists), the protection of emancipated Negroes, and the vacating of various state offices–and particularly the judgeships–held by men feared as being too moderate to countenance the type of instrument the convention intended to draft.” [William F. Swinder, “Missouri Constitutions: History, Theory, and Practice,” Missouri Law Review, Vol. 23 (1958), p. 53] The radicals realized that if African-Americans were to maintain their civil rights at the time, former confederates could not be allowed to vote, because they would surely vote against the interests of African-Americans. They therefore caused the placement of the so-called “Ironclad Oath” into the state constitution which served to disenfranchise anyone who could not swear they had never engaged in or supported the rebellion. The proscription extended even to the pulpit, forbidding anyone who could not honestly swear to the oath from preaching. Enter Father John Cummings, a Roman Catholic priest in Pike County, Missouri. Cummings refused to take the oath, leading to his arrest and conviction. The court levied a $500 fine on him and ordered him jailed until he paid the fine. Cummings appealed to the Missouri State Supreme Court, which upheld the conviction and fine. He then appealed to the US Supreme Court. The case was argued on March 15, 16, 19, and 20, 1866 and decided on January 14, 1867 on a 5-4 vote. Justice Stephen J. Field wrote the Court’s opinion.

In the ruling, Justice Field wrote, “Qualifications relate to the fitness or capacity of the party for a particular pursuit or profession. Webster defines the term to mean ‘any natural endowment or any acquirement which fits a person for a place, office, or employment, or enables him to sustain any character, with success.’ It is evident from the nature of the pursuits and professions of the parties placed under disabilities by the constitution of Missouri that many of the acts from the taint of which they must purge themselves have no possible relation to their fitness for those pursuits and professions. There can be no connection between the fact that Mr. Cummings entered or left the State of Missouri to avoid enrollment or draft in the military service of the United States and his fitness to teach the doctrines or administer the sacraments of his church; nor can a fact of this kind or the expression of words of sympathy with some of the persons drawn into the Rebellion constitute any evidence of the unfitness of the attorney or counselor to practice his profession, or of the professor to teach the ordinary branches of education, or of the want of business knowledge or business capacity in the manager of a corporation, or in any director or trustee. It is manifest upon the simple statement of many of the acts and of the professions and pursuits that there is no such relation between them as to render a denial of the commission of the acts at all appropriate as a condition of allowing the exercise of the professions and pursuits. The oath could not, therefore, have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling. It was exacted not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that, for many of them, there was no way to inflict punishment except by depriving the parties who had committed them of some of the rights and privileges of the citizen.” [71 US 277, 319-320]

The salient question the Court considered was whether or not the state’s constitution imposed disabilities in violation of the US Constitution’s prohibition on ex post facto laws–punishing an action that was not illegal at the time it was performed, or increasing the punishment for a crime beyond what punishment existed at the time of the illegal action–or bills of attainder–punishing a crime for which a person had not been convicted. Justice Field continued, “The disabilities created by the Constitution of Missouri must be regarded as penalties — they constitute punishment. We do not agree with the counsel of Missouri that ‘to punish one is to deprive him of life, liberty, or property, and that to take from him anything less than these is no punishment at all.’ The learned counsel does not use these terms — life, liberty, and property — as comprehending every right known to the law. He does not include under liberty freedom from outrage on the feelings as well as restraints on the person. He does not include under property those estates which one may acquire in professions, though they are often the source of the highest emoluments and honors. The deprivation of any rights, civil or political, previously enjoyed may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office many be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.” [71 US 277, 320]

Justice Field then provides historical examples of punishments that consisted of disqualification: “By statute 9 and 10 William III, chap. 32, if any person educated in or having made a profession of the Christian religion did, ‘by writing, printing, teaching, or advised speaking,’ deny the truth of the religion, or the divine authority of the Scriptures, he was for the first offence rendered incapably to hold any office or place of trust, and for the second he was rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, besides being subjected to three years’ imprisonment without bail. By statute 1 George I, chap. 13, contempts against the King’s title arising from refusing or neglecting to take certain prescribed oaths and yet acting in an office or place of trust for which they were required were punished by incapacity to hold any public office, to prosecute any suit, to be guardian or executor, to take any legacy or deed of gift, and to vote at any election for members of Parliament, and the offender was also subject to a forfeiture of five hundred pounds to anyone who would sue for the same. ‘Some punishments,’ says Blackstone, ‘consist in exile or banishment, by abjuration of the realm or transportation; others in loss of liberty by perpetual or temporary imprisonment. Some extend to confiscation by forfeiture of lands or movables, or both, or of the profits of lands for life; others induce a disability of holding offices or employments, being heirs, executors, and the like.’ ” [71 US 277, 320-321]

Having established his case, Justice Field concludes in this portion, “The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no other wise defined. Punishment not being, therefore, restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Constitution being in effect punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement.” [71 US 277, 321-322]

After a lengthy discussion of bills of attainder and ex post facto laws, including historical examples and of what they consisted, Justice Field wrote, “The clauses in the Missouri Constitution which are the subject of consideration do not, in terms, define any crimes or declare that any punishment shall be inflicted, but they produce the same result upon the parties against whom they are directed as though the crimes were defined and the punishment was declared. They assume that there are persons in Missouri who are guilty of some of the acts designated. They would have no meaning in the constitution were not such the fact. They are aimed at past acts, and not future acts. They were intended especially to operate upon parties who, in some form or manner, by action or words, directly or indirectly, had aided or countenanced the Rebellion, or sympathized with parties engaged in the Rebellion, or had endeavored to escape the proper responsibilities and duties of a citizen in time of war, and they were intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avocations. This deprivation is punishment, nor is it any less so because a way is opened for escape from it by the expurgatory oath. The framers of the constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them there is no escape provided; to them the deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act. It is a misapplication of terms to call it anything else. Now some of the acts to which the expurgatory oath is directed were not offences at the time they were committed. It was no offence against any law to enter or leave the State of Missouri for the purpose of avoiding enrollment or draft in the military service of the United States, however much the evasion of such service might be the subject of moral censure. Clauses which prescribe a penalty for an act of this nature are within the terms of the definition of an ex post facto law — ‘they impose a punishment for an act not punishable at the time it was committed.’ Some of the acts at which the oath is directed constituted high offences at the time they were committed, to which, upon conviction, fine and imprisonment or other heavy penalties were attached. The clauses which provide a further penalty for these acts are also within the definition of an ex post facto law — ‘they impose additional punishment to that prescribed when the act was committed.’ And this is not all. The clauses in question subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one way — by an inquisition, in the form of an expurgatory oath, into the consciences of the parties.” [71 US 277, 327-328]

Having established that some of the activities proscribed by the oath as well as the additional punishment constituted ex post facto laws, Justice Field continued, “The provisions of the constitution of Missouri accomplish precisely what enactments like those supposed would have accomplished. They impose the same penalty, without the formality of a judicial trial and conviction, for the parties embraced by the supposed enactments would be incapable of taking the oath prescribed; to them, its requirement would be an impossible condition. Now, as the State, had she attempted the course supposed, would have failed, it must follow that any other mode producing the same result must equally fail. The provision of the Federal Constitution, intended to secure the liberty of the citizen, cannot be evaded by the form in which the power of the State is exerted. If this were not so, if that which cannot be accomplished by means looking directly to the end can be accomplished by indirect means, the inhibition may be evaded at pleasure. No kind of oppression can be named, against which the framers of the Constitution intended to guard, which may not be effected. Take the case supposed by counsel — that of a man tried for treason and acquitted, or, if convicted, pardoned — the legislature may nevertheless enact that, if the person thus acquitted or pardoned does not take an oath that he never has committed the acts charged against him, he shall not be permitted to hold any office of honor or trust or profit, or pursue any avocation in the State. Take the case before us — the Constitution of Missouri, as we have seen, excludes, on failure to take the oath prescribed by it, a large class of persons within her borders from numerous positions and pursuits; it would have been equally within the power of the State to have extended the exclusion so as to deprive the parties, who are unable to take the oath, from any avocation whatever in the State. Take still another case: suppose that, in the progress of events, persons now in the minority in the State should obtain the ascendency, and secure the control of the government; nothing could prevent, if the constitutional prohibition can be evaded, the enactment of a provision requiring every person, as a condition of holding any position of honor or trust, or of pursuing any avocation in the State, to take an oath that he had never advocated or advised or supported the imposition of the present expurgatory oath. Under this form of legislation, the most flagrant invasion of private rights, in periods of excitement, may be enacted, and individuals, and even whole classes, may be deprived of political and civil rights.” [71 US 277, 329-330]

The Court reversed the Missouri State Supreme Court’s ruling and remanded the case back, directing that court to reverse the decision of the circuit court and to order the defendant freed.