18 L.Ed. 356,
4 Wall. 277
as: 71 U.S. 277)
Court of the United States
STATE OF MISSOURI
January, 1865, a convention of representatives of the people of Missouri assembled
at St. Louis, for the purpose of amending the constitution of the State. The representatives
had been elected in November, 1864. In April, 1865, the present constitution--amended
and revised from the previous one--was adopted by the convention; and in June,
1865, by a vote of the people. The following are the third, sixth, seventh, ninth,
and fourteenth sections of the second article of the constitution:
3. At any election held by the people under this Constitution, or in pursuance
of any law of this State, or under any ordinance or by-law of any municipal corporation,
no person shall be deemed a qualified voter, who has ever been in armed hostility
to the United States, or to the lawful authorities thereof, or to the government
of this State; or has ever given aid, comfort, countenance, or support to persons
engaged in any such hostility; or has ever, in any manner, adhered to the enemies,
foreign or domestic, of the United States, either by contributing to them, or
by unlawfully sending within their lines, money, goods, letters, or information;
or has ever disloyally held communication with such enemies; or has ever advised
or aided any person to enter the service of such enemies; or has ever, by act
or word, manifested 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;
or has ever, except under overpowering compulsion, submitted to the authority,
or been in the service, of the so-called 'Confederate States of America;' or has
ever left this State, and gone within the lines of the armies of the so-called
'Confederate States of America,' with the purpose of adhering to said States or
armies; or has 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 has ever been engaged in guerilla warfare against loyal inhabitants
of the United States, or in that description of marauding commonly known as 'bush-whacking;'
or has ever knowingly and willingly harbored, aided, or countenanced any person
so engaged; or has ever come into or left this State, for the purpose of avoiding
enrolment for or draft *280 into the military service of the United States;
or has ever, with a view to avoid enrolment in the militia of this State, or to
escape the performance of duty therein, or for any other purpose, 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; or, having ever voted at any election
by the people in this State, or in any other of the United States, or in any of
their Territories, or held office in this State, or in any other of the United
States, or in any of their Territories, or under the United States, shall thereafter
have sought or received, under claim of alienage, the protection of any foreign
government, through any consul or other officer thereof, in order to secure exemption
from military duty in the militia of this State, or in the army of the United
States: nor shall any such person be capable of holding in this State any office
of honor, trust, or profit, under its authority; or of being an officer, councilman,
director, trustee, or other manager of any corporation, public or private, now
existing or hereafter established by its authority; or of acting as a professor
or teacher in any educational institution, or in any common or other school; or
of holding any real estate or other property in trust for the use of any church,
religious society, or congregation. But the foregoing provisions, in relation
to acts done against the United States, shall not apply to any person not a citizen
thereof, who shall have committed such acts while in the service of some foreign
country at war with the United States, and who has, since such acts, been naturalized,
or may hereafter be naturalized, under the laws of the United States and the oath
of loyalty hereinafter prescribed, when taken by any such person, shall be considered
as taken in such sense.
6. The oath to be taken as aforesaid shall be known as the Oath of Loyalty, and
shall be in the following terms:
B., 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 *281 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.'
7. Within sixty days after this Constitution takes effect, every person in this
State holding any office of honor, trust, or profit, under the Constitution or
laws thereof, or under any municipal corporation, or any of the other offices,
positions, or trusts, mentioned in the third section of this Article, shall take
and subscribe the said oath. If any officer or person referred to in this section
shall fail to comply with the requirements thereof, his office, position, or trust,
shall, ipso facto, become vacant, and the vacancy shall be filled according
to the law governing the case.
9. No person shall assume the duties of any state, county, city, town, or other
office, to which he may be appointed, otherwise than by a vote of the people;
nor shall any person, after the expiration of sixty days after this Constitution
takes effect, be permitted to practise as an attorney or counsellor at law; nor,
after that time, shall any person be competent as a bishop, priest, deacon, minister,
elder, or other clergyman of any religious persuasion, sect, or denomination,
to teach, or preach, or solemnize marriages, unless such person shall have first
taken, subscribed, and filed said oath.
14. Whoever shall, after the times limited in the seventh and ninth sections of
this Article, hold or exercise any of the offices, positions, trusts, professions,
or functions therein specified, without having taken, subscribed, and filed said
oath of loyalty, shall, on conviction thereof, be punished by fine, not less than
five hundred dollars, or by imprisonment in the county jail not less than six
months, or by both such fine and imprisonment; and whoever shall take said oath
falsely, by swearing or by affirmation, shall, on conviction thereof, be adjudged
guilty of perjury, and be punished by imprisonment in the penitentiary not less
than two years.
September, A.D. 1865, after the adoption of this constitution, the Reverend Mr.
Cummings, a priest of the Roman *282 Catholic Church, was indicted and
convicted in the Circuit Court of Pike County, in the State of Missouri, of the
crime of teaching and preaching in that month, as a priest and minister of that
religious denomination, without having first taken the oath prescribed by the
constitution of the State; and was sentenced to pay a fine of five hundred dollars
and to be committed to jail until said fine and costs of suit were paid.
appeal to the Supreme Court of the State, the judgment was affirmed; and the case
was brought to this court on writ of error, under the twenty-fifth section of
the Judiciary Act.
ex post facto law is one which imposes a punishment for an act which was not punishable
when it was committed, or imposes additional punishment, or changes the rules
of evidence, by which less or different testimony is sufficient to convict.
of pains and penalties, inflicting a punishment less than death, are bills of
attainder, within the constitution.
of attainder may inflict punishment absolutely, or may inflict it conditionally.
"bill of attainder" is a legislative act which inflicts punishment without a judicial
provisions of the second article of the constitution of Missouri, which forbids
any priest or clergyman from teaching or preaching, unless he shall have first
taken "the oath of loyalty," declaring that he has never been in armed hostility
to the United States, etc.; that he has never, by act or word, manifested his
adherence to the cause of the enemies of the United States, or his desire for
their triumph, or his sympathy with those engaged in rebellion; that he has never
come into or left this state for the purpose of avoiding enrollment or draft into
the military service etc., is, in effect, a bill of attainder and ex post facto
law, and therefore unconstitutional.
prohibition against the passage of ex post facto laws cannot be evaded by giving
a civil form to that which is, in substance criminal.
the form of creating a qualification or attaching a condition, the state cannot,
in effect, inflict a punishment for a past act which was not punishable when it
respects validity of provision of Missouri constitution, prescribing oath that
person had not committed certain designated acts during rebellion and declaring
persons not taking such oath incapable of holding state office or being corporate
officer, attorney, teacher or clergyman, disability created thereby constituted
relate to fitness or capacity of the party for a particular pursuit or profession,
and term is defined 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,
states which existed previous to adoption of federal Constitution possessed originally
all the attributes of sovereignty, and they still retain such attributes except
as they have been surrendered by formation of Constitution and amendments thereto,
and new states, on their admission to Union, became invested with equal rights,
and were thereafter subject only to similar restrictions.
rights reserved to states is right of each state to determine qualifications for
office and conditions on which its citizens may exercise their various callings
and pursuits within its jurisdiction.
Mr. David Dudley Field, for Mr. Cummings, plaintiff in error:
argument will first be directed to that part of the oath which affirms that the
person taking it has never 'been in armed hostility to the United States,
or to the lawful authorities thereof, or to the government of this State;'
. . . and has never 'given aid, comfort, countenance, or support to persons
engaged in any such hostility;' . . . and has never '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.' If the imposition
of this is repugnant to the Constitution or laws of the United States, the whole
oath must fall; for all parts of it must stand or fall together. Mr. Cummings
was convicted, because he had not taken the oath, as a whole. If there be any
part of it which he was not bound to take, his conviction was illegal. The oath
is not administered by portions, and there is no authority so to administer it.
first position is, that this provision of the constitution of Missouri is repugnant
to the Constitution and laws of the United States; because it requires or countenances
disloyalty to the United States.
the case of everything not immediately pertaining to the first position, the oath
required may be considered as if it contained only these words:
hereby declare, on oath, that I have never been in armed *283 hostility
to the government of the State of Missouri, nor given aid, comfort, countenance,
or support to persons engaged in any such hostility, and have never been a member
of or connected with any organization inimical to the government of this State.'
is not an oath of loyalty to the United States. The government of Missouri has
been, in fact, hostile to the United States. This is matter of history. Being
in armed hostility to this hostile State government was an act of loyalty to the
United States: an act not to be punished, but to be rewarded.
loyal citizens of the State were obliged to array themselves against its government;
they did so; they took up arms against it; they seized its camp and overthrew
its forces. Had it not been for this act of hostility the State might have been
drawn into the abyss of secession. It was, therefore, an act which was not only
lawful but which was required of the citizen by his allegiance to the United States.
Constitution and laws of the United States require allegiance and active support
from every citizen, whatever may be the attitude of the State government. The
difference between the Constitution and the Confederation consists in this, chiefly,
that under the Constitution the United States act directly upon the citizen, and
not upon the State. What the United States lawfully require must be done, though
it be the seizure of the State capitol. The State of Missouri could not subject
the plaintiff in error to any loss or inconvenience for giving, in 1861, a cup
of coffee to the soldiers who under General Lyon marched out to St. Louis to take
us consider, in the second place, the tendency of this oath, in its relation
to possible occurrence. It certainly is possible for the government of
a State to be hostile to the United States. The governments of the eleven States
lately in rebellion were so. If the legislature of South Carolina were to pass
a law excluding from the pulpit and the offices of religious teachers every person
who has been, at any time during the late war, 'connected with any organization
inimical *284 to the government' of South Carolina, that law would
be held disloyal and unconstitutional. Suppose the legislature of South Carolina
were to go further, and enact that no person, white or black, should ever vote
in that State, who, during the war, gave aid, comfort, or countenance to persons
engaged in armed hostility to the government of South Carolina, would not every
lawyer pronounce such a law utterly void?
such an oath were required in Tennessee, the present President of the United States
could not take it, and would be disqualified. If it were required in Virginia,
more than one of our generals and admirals would be disqualified. And so of thousands
of other citizens of the States lately in rebellion, who fought in the Union ranks,
and opposed the governments of their own States.
may be collisions between the Federal and the State governments, not breaking
out, as the last has done, into flagrant war. A State government may attempt to
resist the execution of a judgment of a Federal court; and the President may be
obliged to call out the militia to assist the marshal. In such event, every man
in the ranks will be in armed hostility to the government of the State. But the
State cannot make him suffer for it.
results from the rule of the Constitution, that the instrument itself, and the
laws made in pursuance of it, are the supreme law of the land; and whatever obstructs
or impairs, or tends to obstruct or impair, their free and full operation is unconstitutional
second position which I take is, that the provision imposing this oath as a condition
of continuing to preach or teach as a minister of the Gospel, is repugnant to
that part of the tenth section of the first article of the Constitution of the
United States which prohibits the States from passing 'any bill of attainder'
or 'ex post facto law.'
again, let us take a particular part of the oath, and refer to so much as affirms
that the person taking it has never, 'by act or word, manifested his . . . sympathy
with *285 those . . . engaged in . . . carrying on rebellion against the
United States.' Making a aimple sentence of this portion, it would read thus:
declare, on oath, that I have never, by act or word, manifested my sympathy with
those engaged in rebellion against the United States.'
may be assumed that previous to the adoption of this Constitution it had not been
declared punishable or illegal to manifest, by act or word, sympathy with those
who were drawn into the Rebellion. It would be strange, indeed, if a minister
of the Gospel, whose sympathies are with all the children of men--the good and
the sinful, the happy and the sorrowing--might not manifest such sympathy by an
act of charity or a word of consolation. We will start, then, with the assumption
that the act which the plaintiff in error is to affirm that he has not done was
at that time lawful to be done.
oaths, in general, have been held odious in modern ages, for two reasons: one,
because they were inquisitorial; and the other, because they were used as instruments
of proscription and cruelty. In both respects they are contrary to the spirit,
at least, of our institutions, and are indefensible, except when applied to matters
outside of the domain of rights, and when prospective in their operation.
Whatever the people may give or withhold at will, they may have a constitutional
right to burden with any condition they please. This is at once the origin and
extent of the rule.
applied to past acts, another principle interposes its shield; that is,
that no person can justly be made to accuse himself. This is incorporated in the
fifth amendment, in the following words:
person . . . shall be compelled, in any criminal case, to be a witness against
although this prohibition is in terms applied to criminal cases, it cannot be
evaded by making that civil in form which is essentially criminal in character.
test oaths, that is to say, oaths that the persons *286 taking them have
not theretofore done certain things, are almost unknown.
the constitutional guarantees against the abuse of Federal power thrown
around the American citizen, are these three: First, he cannot be punished till
judicially tried; second, he cannot be tried for an act innocent when committed;
and, third, when tried he cannot be made to bear witness against himself.
of these guarantees, and the last two, are set also against the abuse of State
prohibition to pass an ex post facto law is, in the sense of the Constitution,
a prohibition to pass any law which 'renders an act punishable in a manner in
which it was not punishable when it was committed.' The question in the present
case, therefore, becomes simply this: Is it a punishment to deprive a Christian
minister of the liberty of preaching and teaching his faith? What is punishment?
The infliction of pain or privation. To inflict the penalty of death, is to inflict
pain and deprive of life. To inflict the penalty of imprisonment, is to deprive
of liberty. To impose a fine, is to deprive of property. To deprive of any natural
right, is also to punish. And so is it punishment to deprive of a privilege.
Mr. Cummings of the right or privilege, whichever it may be called, of preaching
and teaching as a Christian minister, which he had theretofore enjoyed, and of
acting as a professor or teacher in a school or educational institution, was in
effect a punishment.
is not necessary to inquire whether it was intended as a punishment. If the legislature
may punish a citizen, by deprivation of office or place, on the ground that his
continuing to hold it would be dangerous to the State, then every punishment,
by deprivation of political or civil rights, is taken out of the category of prohibited
legislation. Congress and the State legislatures-- for in this respect they lie
under the same prohibition--can pass retroactive laws at will, depriving the citizen
of everything but his life, liberty, and accumulated capital.*287
imposition of this oath was, however, intended as a punishment. This is
evident from its history and its circumstances. It is patent to all the world
that the object of the exclusion was to affect the person, and not the profession.
Mr. Cummings may possibly, at some moment during the last five years, have manifested,
by act or word, his sympathy with those engaged in carrying on rebellion against
the United States; he may have given alms to the wounded rebel prisoners lying
in our hospitals, or he may have spoken to them words of consolation; but no reason
can be assigned, from all that, why he should not solemnize marriage or teach
the ten commandments; nor can any man arrive at the belief that the convention
which devised this constitution had any such notion.
us turn now to the other prohibition, that against passing any 'bill of attainder.'
This expression is generic, and includes not only legislative acts to punish for
felonies, but every legislative act which inflicts punishment without a judicial
trial. If the offence be less than felony, the act is usually called a bill of
pains and penalties.
is not necessary that the persons to be affected by a bill of attainder should
be named in the bill. The attainder passed in the 28th year of Henry VIII, against
the Earl of Kildare and others (chap. 18, A. D. 1536), enacted that 'all such
persons which be, or heretofore have been comforters, abettors, partakers, confederates,
or adherents unto the said late earl, &c., in his or their false and traitorous
acts and purposes, shall in likewise stand and be attainted, adjudged, and convicted
of high treason.'
is therefore certain, that if Mr. Cummings had been by name designated in the
contitution of Missouri, and thereby declared to be deprived of his right to preach
as a minister of religion, or to teach in a seminary of learning, for the reason
that he had done some of the acts mentioned in the oath, such an attempt would
have been in contravention of the prohibition against passing a bill of attainder;
and it is equally certain, that if he had been thereunder judicially *288
convicted for doing the same things, being not punishable when done, the conviction
would have been in contravention of the other prohibition against passing an
ex post facto law.
it make any difference that these results are effected by means of an oath, or
its tender and refusal? There is only this difference, that these means are more
odious than the other. The legal result must be the same, if there is any force
in the maxim, that what cannot be done directly cannot be done indirectly; or
as Coke has it, in the 29th chapter of his Commentary upon Magna Charta, 'Quando
aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud.'
constitutional prohibition was intended to protect every man's rights against
that kind of legislation which seeks either to inflict a penalty without a trial
or to inflict a new penalty for an old matter. Of what avail will be the prohibition,
if it can be evaded by changing a few forms? It is unquestionably beyond the competency
of the State of Missouri, by any legislation, organic or statutory, to enact in
so many words, that if Mr. Cummings on some ocasion, before it was made punishable,
manifested by an act or a word sympathy with the rebels, therefore he shall, upon
trial and conviction thereof, be deprived of the right (or privilege) which he
has long enjoyed, of preaching and teaching as a Christian minister. It must be
equally incompetent to enact, that all those Christian ministers, without naming
them, who thus acted, shall be thus deprived. And this is because it is prohibited
to the State to pass an ex post facto law. It is also unquestionably beyond
the competency of the State, to enact in so many words, that because Mr. Cummings,
on some occasion, after it was made punishable, manifested such sympathy, therefore
he shall, without trial and conviction thereof, be deprived of his profession.
It must be equally incompetent to enact that all those Christian ministers who
have thus acted shall be thus deprived. And this because it is prohibited to the
State to pass a bill of attainder.*289
does not help this kind of legislation that its taking effect was made to depend
on the neglect or refusal to take a prescribed oath; nor help it, to declare that
the omission to take the oath is deemed a confession of guilt. If Mr. Cummings
had even admitted in the presence of the convention his alleged complicity, that
would not have dispensed with a judicial trial.
legal positions taken on the part of Mr. Cummings may be thus restated. He is
punished by deprivation of his profession, for an act not punishable when it was
committed, and by a legislative instead of a judicial proceeding. If this is held
to be constitutional because it is not done directly, but indirectly, through
the tender and refusal of an oath, so contrived as to imply, if declined, a confession
of having committed the act, then the prohibition may be evaded at pleasure. You
cannot imagine an instance of oppression, that the Constitution was designed to
prevent, which may not be effected by this means. Suppose the case of a man tried
for treason, and acquitted by a jury. The legislature may nevertheless enact,
that if the person acquitted by a jury does not take an oath that he is innocent,
he shall be deprived of political and civil rights or privileges. Suppose that
the legislature of New York were to pass an act disqualifying from preaching the
Gospel, or healing the sick, or practising at the bar, all who during the last
year were 'connected with any organization inimical' to the administration of
the State government. Such an act would of course be adjudged inconsistent with
the Federal Constitution. But suppose, instead of passing the law in this form,
it should be in the form of requiring an oath from every person desiring to preach
the Gospel, or to heal the sick, or practise at the bar, that he had not been
connected with such an organization, would that make the case any better? You
can punish in two ways: you can charge with the alleged crime, and proving it,
punish for it; or you can require the party to purge himself on oath; and if he
refuses, punish him by exclusion from a right, privilege, or employment.*290
Montgomery Blair filed a brief, on the same side, and after citing several
authorities, and enforcing some of the arguments of Mr. Field, thus referred especially
to the opinions of Alexander Hamilton.
John C. Hamilton, in his 'History of the Republic of the United States,' [FN1]
Vol. 3, p. 24.
animosity natural to the combatants in a civil conflict, the enormities committed
by the Tories, when the scale of war seemed to incline in their favor, or where
they could continue their molestations with impunity; the inroads and depredations
which they made on private property and on the persons of non-combatants, and
the harsh and cruel councils of which they were too often the authors, appeared
to place them beyond the pale of humanity. This was merely the popular feeling.
the progress of the conflict, and particularly in its earliest periods, attainder
and confiscation had been resorted to generally . . . as a means of war; but it
was a fact important to the history of the revolting colonies, that acts prescribing
penalties usually offered to the persons against whom they were directed the option
of avoiding them by acknowledging their allegiance to the existing government.'
there were exceptions to this wise policy. In New York, especially, there was
a formidable party who indulged the worst feelings and went to the greatest extremes.
The historian of the Republic thus narrates the matter:
discord,' says this author, 'striking at the root of each social relation, furnished
pretexts for the indulgence of malignant passions; and the public good, that oft
abused pretext, was interposed as a shield to cover offences which there were
no laws to restrain. The frequency of abuse created a party interested in its
continuance and exemption from punishment, which, at last, became so strong that
it rendered the legislature of the State subservient to its views, and induced
the enactment of laws attainting almost every individual whose connections
subjected him to suspicion, who had been quiescent, or whose *291 possessions
were large enough to promise a reward to this criminal cupidity.'
bills followed. One was entitled, 'An act declaring a certain description of
persons without the protection of the laws, and for other purposes therein
mentioned.' On its being considered, a member, a violent partisan, . . . moved
an amendment prescribing a test oath, which was incorporated in the act.
It disfranchised the loyalists forever. The Council of Revision rejected this
violent bill, on the ground that the 'voluntary remaining in a country overrun
by the enemy,' an act perfectly innocent, was made penal, and was retrospective,
contrary to the received opinions of all civilized nations, and even the known
principles of common justice, and was highly derogatory to the honor of the State,
and totally inconsistent with the public good.'
act nevertheless was passed. In regard to the test oath, General Hamilton said:
share in the sovereignty of the State which is exercised by the citizens at large
in voting at the elections, is one of the most important rights of the subject,
and in a republic ought to stand foremost in the estimation of the law. It is
that right by which we exist, as a free people, and it will certainly therefore
never be admitted that less ceremony ought to be used in divesting any citizen
of that right than in depriving him of his property. Such a doctrine would ill
suit the principles of the Revolution which taught the inhabitants of this country
to risk their lives and fortunes in asserting their liberty, or, in other words,
their right to a share in the government. Let me caution against precedents which
may in their consequences render our title to this great privilege precarious.'
Hamilton further remarks:
advocates of the bill pretend to appeal to the spirit of Whigism, while they endeavored
to put in motion all the furious and dark passions of the human mind. The spirit
of Whigism is generous, humane, beneficent, and just. These men inculcate revenge,
cruelty, persecution, and perfidy. The spirit of Whigism cherished legal liberty,
holds the rights of every individual sacred, condemns or punishes no man without
regular *292 trial and conviction of some crime declared by antecedent
laws, reprobates equally the punishment of the citizen by arbitrary acts of the
legislature as by the lawless combinations of unauthorized individuals, while
these men are the advocates for expelling a large number of their fellow-citizens,
unheard, untried, or, if they cannot effect this, they are for disfranchising
them in the face of the Constitution, without the judgment of their peers and
contrary to the law of the land. . . . Nothing is more common, than for a free
people in times of heat and violence to gratify momentary passions by letting
into the government principles and precedents which afterwards prove fatal to
themselves. Of this kind is the doctrine of disfranchisement, disqualification,
and punishments by acts of the legislature. The dangerous consequences
of this power are manifest. If the legislature can disfranchise any number of
citizens at pleasure, by general descriptions, it may soon confine all the voters
to a small number of partisans, and establish an aristocracy or oligarchy. If
it may banish at discretion all those whom particular circumstances render obnoxious,
without hearing or trial, no man can be safe, nor know when he may be the
innocent victim of a prevailing faction. The name of liberty applied to such a
government would be a mockery of common sense. . . . The people are sure to be
losers in the event, whenever they suffer a departure from the rules of general
and equal justice, or from the true principles of universal liberty.'
is another sentiment of the great statesman and lawgiver which may be deemed not
inappropriate to the present unhappy times. He says:
is a bigotry in polities as well as in religion, equally pernicious to both. The
zealots of either description are ignorant of the advantage of a spirit of toleration.
It is remarkable, though not extraordinary, that those characters throughout the
States who have been principally instrumental in the Revolution are the most opposed
to persecuting measures. Were it proper, I might trace the truth of these remarks
from that character who has been THE FIRST in conspicuousness, through the several
gradations of those, with very few exceptions, who either in the civil or military
line, have borne a distinguished part in the war.'*293
G. P. Strong, contra, for the State, defendant in error.
The separate States were originally possessed of all the attributes of sovereignty,
and these attributes remain with them, except so far as the people may have parted
with them in forming the Federal Constitution. [FN2]
Declaration of Independence: Art. 2, Articles of Confederation; Art. 10, Amendments
to the Constitution of the United States. Federalist, No. 45, p. 216, Masters,
Smith & Co.'s edit. of 1857. Calder v. Bull, 3 Dallas, 386; City of
New York v. Miln, 11 Peters, 102, 139.
author of the Federalist, No. 45, says:
powers reserved to the several States will extend to all the objects which, in
the ordinary course of affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and prosperity of the State.'
Among the rights reserved to the States which may be considered as established
upon principle, and by unvarying usage beyond question or dispute, is the exclusive
right of each State to determine the qualification of voters and office-holders,
and the terms and conditions upon which members of the political body may exercise
their various callings and pursuits within its jurisdiction. Authorities already
cited establish this proposition; so, also, do others. [FN3]
Federalist, No. 45; Butler v. Pennsylvania, 10 Howard, 415; City of New
York v. Miln, 11 Peters, 102, 139; In re Oliver, Lee & Co.'s Bank,
21 New York, 9.
The provisions of the second article of the Constitution of Missouri come within
the range of these reserved rights, and are neither 'bills of attainder,' or of
pains and penalties, nor 'ex post facto laws,' nor 'laws impairing the
obligation of contracts.' They are designed to regulate the 'municipal affairs'
of the State, that is, to prescribe who shall be voters, who shall hold office,
who shall exercise the profession of the law, and who shall mould the character
of the people by becoming their public teachers.
of pains and penalties, and ex post facto laws, are such as relate exclusively
to crimes and their punishments. [FN4]
1 Blackstone's Commentaries, 46; Sewall v. Lee, 9 Massachusetts, 367, citing
'Conspirator's Bill;' 2 Woodeson, 41, p. 621; Chase, J., in Calder v. Bull,
3 Dallas, 390, 391; Paterson, J., Id. 397; Carpenter v. Commonwealth of
Pennsylvania, 17 Howard, 456, 463; The Earl of Strafford's Case, 3 Howell's State
Trials, 1515; Sir John Fenwick's Case, 7 and 8 Wm. III, ch. 3; Bishop of Rochester's
Case, 9 Geo. I, ch. 17.*294
true interpretation of these laws by our own courts is settled by numerous cases
in addition to those already cited. [FN5]
Ross's Case, 2 Pickering, 165; Rand's Case, 9 Grattan, 738; Boston v. Cummins,
16 Georgia, 102; Charles River Bridge v. Warren Bridge, 11 Peters, 420.
one of these examples of bills of pains and penalties, or ex post facto
laws, bears any resemblance to the constitutional provisions which the court is
now called to pass upon. They were, in terms, acts defining and punishing crimes.
They designated the persons to be affected by them, and did not leave it optional
whether they would suffer the penalty or not.
Every private calling is subject to such regulations as the State may see fit
to impose. The privilege of appearing in courts as attorneys-at-law, and the privilege
of exercising the functions of a public teacher of the people, have always been
the subjects of legislation, and may be withheld or conferred, as may best subserve
the public welfare. Private rights have always been held subordinate to the public
the freedom of religious opinion, and the rights of conscience which we so highly
prize, are secured to us by the State constitutions, and find no protection in
the Constitution of the United States.
any State were so unwise as to establish a State religion, and require
every priest and preacher to be licensed before he attempted to preach or teach,
there is no clause in the Federal Constitution that would authorize this court
to pronounce the act unconstitutional or void. [FN6]
Austin v. The State, 10 Missouri, 591; Simmons v. The State, 12
Id. 268; State v. Ewing, 17 Id. 515; The State of Mississippi v.
Smedes & Marshall, 26 Mississippi, 47; The State v. Dews, R. M. Charlton,
397; Coffin v. The State, 7 Indiana, 157, 172; Conner v. City of
New York, 2 Sandford, 355; Same case, 1 Selden, 285; Benford v. Gibson,
45 Ala. 521; West Feliciana Railroad Co. v. Johnson, 5 Howard's Mississippi,
But we are told that this is not an oath of loyalty to the government of the United
States, because it requires a declaration that the party has not taken up arms
against the government of the State.
Constitution of the United States is a part of the government of the State. It
is as much the Constitution of the people of Missouri as the State constitution.
Those who defended the one defended the other. The State government was never
hostile to the Federal government. The hostility of Governor Jackson was individual
and personal, and was intended to subvert both State and Federal governments.
Hamilton says: [FN7] 'We consider the State governments and the National government,
as they truly are, in the light of kindred systems, and as parts of one whole.'
Federalist, No. 82.
Justice McKean [FN8] also says: 'The government of the United States forms a part
of the government of each State. These (the State and National) form one complete
3 Dallas, 473.
Jefferson, [FN9] speaking of the State and Federal governments, says: 'They are
coordinate departments of one simple and integral whole.'
Letter to Major Cartwright, June 5, 1824; Jefferson's Works, vol. 4, p. 396.
J. B. Henderson, on the same side, for the State, defendant in error:
the provisions of the second article of the Missouri constitution conflict with
the Constitution of the United States? The acts objected to are not acts of a
State legislature. Even in regard to the constitutionality of such acts it has
ever been thought a delicate duty to pass. If doubt exists, that doubt is always
given in favor of the law. If ordinary acts of legislation are to be presumed
valid, and are to be set aside only when patient examination brings them, beyond
doubt, into conflict with the supreme law of the land, how much stronger the presumption
in favor of the *296 act of the people themselves in framing such organic
laws as they may think demanded by the exigency of the times and necessary to
tenth amendment to the Constitution of the United States provides that 'the powers
not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.'
question, therefore, can arise as to the power of the people of Missouri to adopt
the provisions in question unless they fall within the powers delegated to the
United States, or are prohibited to the States by the Federal Constitution. The
subject-matter of them is clearly not within the powers delegated to the United
States, but belongs to that class of legislation reserved to the States or to
the people, and unless it be directly prohibited to the States by some clause
or clauses of the Federal Constitution the provisions must be held valid. Among
the powers prohibited to the States is one in the tenth section of the first article
of the Constitution, which provides 'that no State shall pass any bill of attainder,
ex post facto law, or law impairing the obligation of contracts.' This clause
is chiefly relied on to avoid the provisions alluded to in the constitution of
has been decided that bills of pains and penalties, which inflict a milder degree
of punishment, are included within bills of attainder, which refer to capital
offences. It has been said by an accurate writer [FN10] that in cases of bills
of attainder, 'the legislature assumes judicial magistracy, weighing the enormity
of the charge and the proof adduced in support of it, and then deciding the political
necessity and moral fitness of the penal judgment.' He says these acts, instead
of being general, are levelled against the particular delinquent; instead of being
permanent they expire, as to their chief and positive effects, with the occasion.
Now, do these provisions fall within this definition? To be obnoxious as bills
of attainder, the provisions must operate against some particular delinquent,
or specified class of delinquents, and not against *297 the whole community.
They must not be permanent laws, operating as a rule to control the conduct of
the whole community, but must expire upon the infliction of punishment on the
individual or individuals named. Before these provisions can be called bills of
attainder, it must appear that they criminate the defendant for the commission
of some act specified in the third section of the second article of the Constitution;
and that they assume to pronounce the punishment for that act. The law itself
must assume to convict him.
Woodeson, Lecture 41.
any means be left by which the defendant can escape the punishment prescribed
in the act, the act cannot be a bill of attainder; for a bill of attainder assumes
the guilt and punishes the offender whatever he may do to escape. If the act in
question applies as well to the entire community as to him, and operates upon
all alike, only prescribing an oath, which may or may not be taken by him and
others, as a condition of a future privilege, it is in no sense a bil of attainder.
any objection really exist against these provisions of the Missouri constitution
it is because they are retrospective in their operation. Whether they are ex
post facto laws is, therefore, the chief question for our examination.
proceeding to that examination, an argument of one of the counsel for the plaintiff
must be noticed. He errs not perhaps in logical deduction, but in the statement
argues thus: Mr. Cummings had the right to preach. A test oath is prescribed for
a person following his profession which he cannot truthfully take, hence he has
to forfeit his right to preach.
is called a punishment, for the acts of which he is guilty, and of which he cannot
purge himself by oath. The punishment, then, consists in the forfeiture of this
assumed right to preach the Gospel. Of course, punishment must be impending to
make the objection apply. The real objection to an ex post facto law is
not that it declares a past innocent action a crime, but in the fact that it undertakes,
after so *298 declaring, to punish it. The Constitution of the United States
steps in to prevent the punishment, not the passage of the act. Now, if the supposed
forfeiture pronounced by the act is no punishment at all in the eye of the law,
the objection ceases.
is this thing we call punishment for crime in this country? Punishment under our
institutions, legally considered, must affect person or property. It must take
the 'life' of an individual, impose restraints on his 'liberty,' or deprive him
of his 'property.' Common sense teaches us that no man is punished by the loss
of something that never was his absolute property. If I retake from my neighbor
what I had granted him during my pleasure, I inflict no loss on him. He loses
nothing. I gain nothing. The thing may be of value, but it is mine. If the thing
taken has no value, although he may not have received it of me, he does not suffer.
Punishment is to inflict suffering. This view of the subject is strengthened by
the language of the fifth article of Amendments to the Federal Constitution, and
by similar language in each State constitution. This article declares, first,
that prosecutions, except in particular cases, shall be commenced by presentment
or indictment of a grand jury. Coming to the trial, it is next provided, that
no man shall be twice tried for the same offence, nor compelled to be a witness
against himself, and then, in the same connection, it provides that he shall not
'be deprived of his life, liberty, or property, without due process of law.' The
latter part of the clause evidently refers to the punishment of crime. To punish
one, then, is to deprive him of life, liberty, or property. To take from him anything
less than these, is no punishment at all. These are natural rights, and to
take them away is what we properly call punishment. All other rights are conventional,
and may at any time be resumed by the public, in the most summary way, without
any regard to due process of law. Hence, public offices have always been taken
away from the incumbents, by the sovereign act of the people, without consulting
the incumbents, without informing them, without hearing them in their defence,
and yet *299 nobody ever supposed this to be a punishment of the incumbents.
It is not a punishment, because it deprives them of no property whatever. The
public, it is true, had given them a trust, but the public had created that trust
for their own purposes, and the public can resume it whenever necessity or convenience
require it. And the public alone can judge of that necessity or convenience.
us now proceed to the examination of ex post facto laws.
J., [FN11] defines an ex post facto law to be one 'whereby an act is declared
a crime, and made punishable as such, which was not a crime when done: or whereby
the act, if a crime, is aggravated in enormity or punishment, or whereby different
or less evidence is required to convict an offender than was required when the
act was committed.' This court, in the case of Fletcher v. Peck,
Commentaries on the Constitution.
ex post facto law is one which renders an act punishable in a manner in which
it was not punishable when it was committed.'
Watson et al. v. Mercer, [FN12] this court said:
8 Peters, 110.
phrase ex post facto laws, is not applicable to civil laws, but to penal
and criminal laws, which punish a party for acts antecedently done, which were
not punishable at all, or not punishable to the extent or in the manner prescribed.'
and every act enumerated in the third section may have been committed, and yet
no provision of this State constitution attempts to punish it. Indeed, it makes
no provision to punish even in the future the commission of such acts as are therein
specified. The acts enumerated are not denounced in the constitution as crimes
at all, nor is any punishment whatever attached to their commission. How, then,
is this test oath an ex post facto law? It does not operate on the past.
If one stands on his past record, however guilty he may be, this provision cannot
touch him. If *300 he is ever punished for what he has done, it must be
according to some previous existing law, and not under this act. This act does
not deal with the past. It looks only to the future. If it refers to the past
at all, it is only for the purpose of ascertaining moral character and fitness
for the discharge of high civil duties, which give credit and influence in the
community, and can never be safely intrusted in the hands of base or incompetent
to proceed with the definition. Justice Washington, delivering the opinion of
the court in Ogden v. Saunders, [FN13] speaking of bills of attainder,
ex post facto laws, and laws impairing the obligation of contracts, said:
'The first two of these prohibitions apply to laws of a criminal, and the last
to laws of a civil character.'
12 Wheaton, 267.
Calder v. Bull, the first great case involving a definition of the
term ex post facto, in this court, Chase, J., delivered the opinion of
the court, and gave a definition which has been ever since substantially adopted
as the law. He said, it is:
Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action.
'Second. Every law that aggravates a crime and makes it greater than it
was when committed.
Every law that changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed.
Every law that alters the legal rules of evidence and receives less or different
testimony than the law required at the commission of the offence in order to convict
this provision of the State constitution assume to declare any act already done
by the defendants, at any time, to be criminal? Is it, in any sense, a criminal
law to operate upon the past? If it had declared that previous acts of practising
law, innocent as they were when done, should *301 now be offences, and
might be punished in the courts, the provision could not, and should not, be enforced.
If the provision had declared that any person guilty of a previous expression
of sympathy with the public enemy, or of previously enrolling himself as disloyal,
to evade military service in the Union forces, or of seeking foreign protection
as an alien against military service, might now be indicted and punished therefor,
by fine and imprisonment, or both, I could well understand an argument against
its validity. But this provision does no such thing. It declares no past act of
the defendant to be an offence, nor does it prescribe for any such act an forfeiture
whatever, much less the deprivation of a property right. What is a criminal law?
It defines an offence, and fixes the punishment, and the mode of inflicting it.
If it stamps as crime an innocent past action it is no law. But if it looks only
to the future, and gives the choice to the citizen to violate it or comply with
it, it is a valid law, at least so far as this prohibition is concerned. This
act, it is true, defines an offence, but the offence defined is one that cannot
be committed before the expiration of sixty days after the act shall have been
adopted. No man is compelled to be guilty. That is not the case under an ex
post facto law. In such cases there is no option for the victim. The act to
be punished is done, and cannot be undone.
punishment is also denounced in the act, but that punishment is to be applied
only to acts of the future. This act, then, does not make a crime of an action
which was innocent when done, and proceed to punish it, and it cannot in that
respect be classed as an ex post facto law.
one be guilty of treason, of course he cannot in such case take the oath, and
must therefore stand excluded. It is not a new or additional penalty or forfeiture
for the crime of treason. It was not so intended. In its true purpose, such an
act is not a criminal law at all, much less an ex post facto law. It is
an act to fix the qualifications of voters, and applies to the innocent as well
as to the guilty. If a man, having long enjoyed the franchise, be excluded by
the sovereign *302 act of the people, unless he will take an oath that
he can read and write, is it to be construed an act to punish ignorance, or an
act to preserve the purity and usefulness of the ballot-box? If an act were passed
vacating the offices of all sheriffs who had not practised law for five years
under a license, before their election, is the act void?
we are told that this act alters the legal rules of evidence, and receives less
testimony than was necessary at the time the act was committed to convict the
offender. If perjury be committed, and at the time of its commission two witnesses
are required to convict, we can understand that a subsequent act authorizing a
conviction on the testimony of one witness is not valid. We can well understand
that a law which makes testimony competent, that was not competent at the time
of the act, is void. But the law will not be declared void until its obnoxious
provisions are attempted to be enforced in some specific case, that is, until
a case arises. The difficulty here is that plaintiffs in error insist that they
are on trial for the offences, or rather the acts of disloyalty, named in the
third section. But they are not now on trial, for no conviction or judgment therefor
can follow these proceedings. The taking of the oath is not an acquittal of the
offences or acts enumerated. The refusal to take it is not a conviction, nor does
it tend to a conviction. This act has nothing to do with the trial or conviction
of the offender for past actions; it fixes no rule or rules of evidence by which
a conviction may be had more easily, for there can be no trial or conviction at
all under the act for anything previously done.
Constitution provides that no person 'shall be compelled, in any criminal case,
to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law.' It is insisted that the provisions of the Missouri
law conflict with this clause, which clothes in language a great principle of
national right. If, on the trial of the case of Mr. Cummings, he had been compelled
to testify against himself, there would be some ground for the complaint. We have
already attempted to show that he is not *303 deprived of life, liberty,
or property under this law. He is surely not deprived of life or liberty, and
the right to pursue his profession is not such an absolute right of property as
to be above the control and regulation of State law. It is said he is punished
without the right of trial 'by an impartial jury,' and without the right 'to be
confronted by the witnesses against him;' without the right of 'compulsory process
for obtaining witnesses' in his favor, and without that other invaluable right,
'the assistance of counsel' in his defence. Suppose it were so, what has this
court to do with it? These great rights are only secured by the Constitution 'in
all criminal prosecutions' set on foot by the United States and not in those set
on foot by the States. And now, in the present prosecution against Mr. Cummings
for violating the act itself, or in any prosecution that may be hereafter instituted
against him, or other persons, for such violation, if any of these rights shall
be denied them we may say the act is unjust, but that is the end of it. The State
may do acts of injustice if it chooses. We must trust something to the States.
Mr. Cummings, however, had the right of trial by jury; the right to be confronted
with the witnesses against him; the right of process to compel the attendance
of his witnesses; and even those beyond the limits of our own country will know
that he has had 'the assistance of counsel,' for he was ably defended in the courts
of the State, and they who now defend him are known wherever enlightened jurisprudence
itself is known.
prosecutions arise under these provisions, there will, doubtless, be granted,
in Missouri, to the accused, all these guarantees of constitutional liberty. The
State cannot deny them to one of its citizens without denying them to all; and
to suppose a people so lost to common sense as to deprive themselves, voluntarily,
of these great and essential rights, necessary to a condition of freedom, is to
suppose them incapable of self-government.
an objection is also urged which is well calculated to excite interest. The rights
of conscience are sacred rights. They are too often confounded, however, with
the unrestrained *304 license to corrupt, from the pulpit, the public taste
or the public morals. However this may be, the American people are exceedingly
sensitive on the subject of religious freedom; and whenever, the people are told,
as they have been in this case, that the indefeasible right to worship God according
to the dictates of conscience is about to be invaded, the public mind at once
arouses itself to repel the invasion. The first article of the amendments to the
Constitution is in these words:
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.'
third clause of the sixth article declares that
religious test shall ever be required as a qualification to any office or public
trust under the United States.'
J., commenting on these provisions, says:
whole power over the subject of religion is left exclusively to the State governments,
to be acted upon according to their own sense of justice and the State constitutions.'
Jew, the infidel, and the Christian are equal only in the national councils. The
States may make any discrimination in favor of any sect or denomination of Christians,
or in favor of the infidel and against the Christian. North Carolina had the right
to exclude the Catholic from public trusts; and other States have the right, so
long exercised, to deny ministers of all denominations a place in their legislative
halls. Congress cannot establish a national faith; but where are the limitations
on the powers of the States to do so? There are none, unless they be found in
this provision against bills of attainder and ex post facto laws--a provision
which, in its present interpretation, saps and withers every right once fondly
claimed by the States. In the formation of State constitutions, I have never doubted
the power to regulate the modes of worship or prescribe forms for the public observance
of religion. Hence it is that the bills of right, to be found in all the State
constitutions, attempt to *305 secure this great right of free and unrestricted
worship against the caprice or bigotry of State legislators. But within the limits
of the State constitution, when thus framed, the legislature has entire control
of the subject.
is said these oaths are unprecedented. They are, no doubt, extraordinary, perhaps
unprecedented; but the provisions themselves are no more extraordinary than the
circumstances which called them into existence. These last are not known to all,
and indeed are known fully but to few. I must ask the privilege of departing so
far from the line of strict legal argument as partially to state them. Such a
statement is indispensable truly to understand this case.
bare recital of these provisions, I am aware, has fallen harshly on the public
ear. Loyal men in other States hesitated to justify them, while the disloyal hastened
to denounce them. Beyond the limits of Missouri, they, perhaps, have had but few
advocates. But beyond those limits, no man knows the terrible ordeal through which
her people passed during the late Rebellion. To appreciate their conduct properly,
one must have been on the soil of the State, and that alone is not sufficient:
he must have been an active participant in the struggle for national life and
personal security. The men of Missouri, at an early day in this war, learned to
be positive men. They were for, or they were against. When the struggle came,
each man took his place. The governor and the legislature were disloyal. A convention
called by that legislature, merely to give character to the mockery of secession,
proved to be loyal, and refused to submit an ordinance of secession to a pretended
vote of the people. Hence came a fierce war of opinion. The first great contest
was for political power. Each party saw the absolute necessity of obtaining it.
With it, ultimate success might be achieved; without it, success was impossible.
In the midst of this controversy, while the issue was yet in doubt, Fort Sumter
was attacked, and civil war suddenly broke upon the land. In Missouri, it was
a hand-to-hand contest, each party fighting for the possession of power, *306
and each feeling that expulsion was the penalty of failure. Acts of the grossest
treason were committed; but no man could be found who confessed himself present,
or who would speak the truth against his neighbor. His silence, however, made
him no less earnest. Neighbors and friends of long standing separated and joined
hostile forces. Each county had its military camps, and each municipal township
its opposing military and political organization. Traitors and spies came from
the confederate armies of Arkansas and Texas to organize regiments secretly in
the State, and found shelter and food in the houses of the disloyal. Organized
armies sprang into existence around us, and joined the advancing hosts, to assist
in the work of devastation and death. Some who did not themselves go into open
rebellion from prudential reasons, some too old to bear arms, urged others to
go, and furnished means and money to equip them. Some acted as spies in their
respective neighborhoods, and sent secret information to the enemy, which often
sealed the fate of their neighbors. The merchant in his store-room talked treason
to his customers; the school teacher instilled its poison into the minds of his
pupils; the attorney harangued juries in praise of those whose virtue demanded
the great charters of English liberty, and denounced the spirit of this age for
its submission to usurpation and tyranny. And even the minister of heaven, forgetting
of what world his Master's kingdom was, went forth to perform the part allotted
to him in this great work of iniquity.
man was idle. No man could be idle. Men might be silent, but they were earnest;
because life, and things dearer than life, depended on the issue. The whole man,
mental and physical, was employed. The whole community was alike employed, and
every profession, and every avocation in life was made subservient to the great
end,--the success or overthrow of the government. On the day when the delegates
to the convention which framed this constitution were elected, General Price,
at the head of twenty thousand desperate men from Arkansas, Texas, Louisiana,
and Missouri, was sweeping through the State, leaving be *307 hind him
smouldering ruins and human suffering; and he and they who made this desolate
path, were received with shouts of joy and approbation by thousands of citizens,
who sought by the ballot, on that day, to give lasting welcome to the invaders.
have referred to these things to vindicate the people of Missouri against the
charges which have been made against them, and to show the reasons and the reasonableness
of their action.
Reverdy Johnson, for the plaintiff in error, Mr. Cummings, in reply:
Is the provision in the constitution of Missouri obnoxious to the objection of
being ex post facto?
counsel seem to suppose that the clause in the Federal Constitution which would
prevent an ex post facto law is not applicable to the organic law of a
State. They argue that even if a provision such as is contained in the constitution
of Missouri would be void in a statute law of the State, yet it is not void when
in her constitution.
is no warrant for the distinction. The ninth section of the first article of the
Constitution of the United States restrains Congress from passing any bill of
attainder or any ex post facto law, and the great men by whom that instrument
was framed were so well satisfied that legislation of this description was inconsistent
with all good government, that they deemed it necessary to impose the same restriction
upon the States; and this they did by providing that 'no State'--not no legislature
of a State, but that 'no State'-- should pass any ex post facto
law or any bill of attainder. If we consult the contemporaneous construction--and
which has ever been received almost as conclusive authority upon its meaning--given
it by the Federalist, we will find [FN14] that it was not thought necessary to
vindicate the Constitution upon the ground that it contained a provision of this
description. It was thought sufficient to say that the provision *308 was
but a declaration of a fundamental principle of free government, a principle without
which no such government could long exist, and that it was adopted not because
there was any doubt in regard to it upon the part of the convention, or because
any doubt was entertained what would be the public opinion in relation to it,
but because it was so universally held to be important that it was deemed necessary
not only by express constitutional provision to inhibit to Congress the power
to pass such laws, but to prohibit the States at any time from doing so either.
Number 44, by Mr. Madison.
can make no difference, therefore, whether such legislation is found in a constitution
or in a law of a State; if it be within the prohibition it is void; and the only
question, therefore, is whether the constitution of Missouri, in the particular
which is involved in this case, is not liable to the objection of being ex
brothers of the other side suppose that there is no punishment imposed
by the constitution of Missouri upon one who refuses to take the oath. They do
not mean, surely, no punishment in the general sense of the term; that he whose
livelihood depends on his profession is not, in the general acceptation of the
term, punished if he is not permitted to pursue it; that he whose business it
is, claiming to derive his authority from a higher than any human source, to preach
peace on carth, good will to men, is not punished when he is told that he shall
do neither; that a man is not punished when he is prevented from teaching his
own child (for this oath comprehends that act) the ways which he believes are
the only ways that lead to perpetual happiness in the future; cannot teach him
what he deems to be man's duty to man and man's duty to God;-- without taking
an oath which any State from party, political, or religious prejudice, may think
proper to prescribe.
prohibition of the sort here enacted, operating to the extent that it does, is
not only punishment but most severe punishment; perhaps the most severe.
if it is a punishment in fact, wny is it not a punishment that falls within the
inhibition of the Constitution? *309 The inhibition is absolute and as
comprehensive as language can make it.
what does the constitution of Missouri assume? It assumes that there are persons
in the State of Missouri who have been guilty of disloyalty to the United States.
Opposing counsel argue that it was of importance to the future welfare of Missouri,
when the constitution was adopted, that such a provision as this should be incorporated
in her fundamental law. And why? Because, as they assert, there were secret, silent,
insidious traitors in her midst; traitors, also, whose hands were red with the
blood of loyal citizens. The argument, therefore, as well as the provision itself,
assumes that crime has been committed, and that it is important to the State that
all who have been guilty of that crime shall forever be excluded from any of the
offices or the employments mentioned in the third section of the second article
of the constitution. Then it was put there evidently for the purpose of disfranchising
those who were thus assumed to be guilty. Whether they were guilty or not, and
how they were to be punished if that guilt should be established by due dourse
of law, is one question. Whether, if guilty, they could be punished in the way
in which they are punished by this constitution is a different question. If they
are guilty, and are so to be punished, how that guilt is to be established is
a third question.
was their guilt to be established, according to the requirements of the constitution,
if the charge of treason was made against them? By two witnesses. What would be
the effect upon an individual if he was convicted? No disfranchisement. Capacity
to hold office as far as any positive legal disability was concerned--capacity
to appear as attorney--capacity to pursue his religious pursuits; all would remain
does this provision in the constitution of Missouri do? It assumes that it is
not sufficient that society is secured by such punishment as the previous law
provided. If the court should think proper in its discretion to award the punishment
of imprisonment, and the party survives, *310 he cannot be punished again
in any way in the remainder of his life. If he seeks employment afterwards, the
question of prior guilt may be held to affect his character; but that found to
be fair and he trustworthy, the road to honor and to office may be open to him.
This constitution of Missouri says that this is not enough; that the public safety
demands that, if he is guilty, he shall be excluded from all offices in that State;
not only from all offices, but from all employments; not only from professional
employment, but from carrying on the avocation with which, in his own belief,
heaven itself has endowed him; not only that, but from being an officer in any
municipal or other corporation, although he may own nearly all the stock, and
from holding any trust.
that not ex post facto? The very definition of such a law, which opposing
counsel have given upon the authority of this court in the case of Calder
v. Bull, and in the subsequent cases, brings such a provision within it.
Even if we were to stop here, any law, and, as has been already shown, any constitution,
which imposes a punishment for crime in addition to that which the existing law
at the time of its commission imposed, is ex post facto.
that is not all. It not only imposes an additional punishment, but it changes
altogether the evidence by which, under the previous law, the crime was to be
established. Two witnesses to the same overt act were necessary to prove the offence
of treason. This constitution says, in effect, that 'it is true that hundreds
and thousands in the State of Missouri have been guilty of acts of disloyalty
which would subject them to punishment for treason under the existing law; and
it is true that they may be punished under that law effectively, provided the
government which thinks proper to prosecute them can establish their guilt by
such evidence as the constitution demands; but that will not answer out purpose;
we cannot accomplish our end in that mode; we not only propose to aggravate the
punishment, but we propose to establish the crime by evidence which is now inadmissible
for that purpose.' And what is that evidence *311 as they themselves present
it? 'You, Mr. Cummings, desire to preach, to solemnize marriage, to bury the dead,
to administer the sacrament of the Eucharist, to console the dying; you shall
not do either, unless you will swear that you have not committed the offence:
you must purge yourself by your own oath, or, as far as we are concerned, we find
you guilty. We believe you are guilty; and if you are guilty, we do not mean that
you shall execute your religious functions at all. And we make the fact of your
refusing to swear that you are innocent conclusive evidence of your guilt, and
punish you accordingly.'
Congress has treated an exclusion from the right to hold office as a punishment.
The act of the 10th April, 1790, defines and punishes perjury, and for punishment,
it is declared that the party shall undergo 'imprisonment not exceeding three
years, and a fine not exceeding eight hundred dollars; and shall stand in the
pillory for one hour, and be thereafter rendered incapable of giving testimony
in any of the courts of the United States until such time as the judgment so given
against the said offender shall be reversed.' [FN15] It is plain that to take
from him the privilege of being a witness was considered a punishment. By the
twenty-first section, the crime defined is that of attempting to corrupt a judge,
and as punishment, it is declared that the party 'shall be fined and imprisoned,
and shall forever be disqualified to hold any office of honor, trust, or profit
under the United States.' In accordance with the impression that that was
not only punishment, but punishment of a very severe nature, we find in the act
of July 17, 1862, [FN16] 'an act to suppress insurrection, to punish treason,'
&c., passed of course whilst the Rebellion was in full force, this provision:
1 Stat. at Large, p. 116, § 18.
12 Stat. at Large, pp. 589-590, § 3.
every person guilty of either of the offences described in this act shall be
forever incapable and disqualified to hold any office under the United States.'
on the other side maintain that the exclusion of *312 the priest from the
right to preach or to teach is not ex post facto legislation within the
meaning of those terms in the Constitution, because it is not the legal consequence
of any crime; something having no connection with the crime. They admit, therefore,
that if the punishment can attach itself to the crime, and it be a punishment
not known to the laws at the time the crime was committed, it is void. Now, what
does the State constitution do? Does it not exclude because of the crime, in consequence
of the crime, and only in consequence of the crime? If it does, it is, in the
judgment of Missouri, or in the judgment of its constitution, a punishment of
the crime just as effectually as if a party was tried upon an indictment and convicted,
and the law authorized a party, upon that conviction, to be excluded from the
right to practise or to preach. That no proceeding, judicial in its nature, is
provided for, can make no difference; a proceeding still more effective is provided.
A proceeding by indictment might or might not accomplish the end; the two witnesses
required might not be found; the party might, therefore, be acquitted. His guilt
might be in his own bosom, and no witness could be found, and, consequently, he
would be acquitted. And as its object was to strike at the crime, and remove those
who were supposed to be loyal in the State of Missouri from the contamination
of the crime or of the criminal, it requires him to swear that he has not committed
it, and tells him, 'Not swearing, we find you have committed the crime, and will
punish you accordingly.'
that, instead of excluding Mr. Cummings from the practice of his calling, it had
said that if he did not answer he should be subjected to a pecuniary penalty,
a fine, or to imprisonment, both or either; would not that be void because of
the restriction? And if so, must not this be held void, provided we agree with
Congress in the opinion contained in the two acts already referred to, that exclusion
from the right to hold office is 'punishment?'
degree, the extent, the character of the punishment, has nothing to do with the
fact of punishment. Admit that Mr. Cummings and all standing in like relation
are punished *313 by this State constitution, and the constitution falls
just as absolutely as if, instead of ordaining that persons should be punished
by not being permitted to exercise and carry on their occupations, it had said,
'if you do not swear to your innocence we infer you to be guilty, and we fine
and imprison you.' It would be as much in that case, and not more, a consequence
of the crime, as it is in this case. And once hold it to be consequential upon
the crime, and you bring it within the inhibition, provided the punishment which
it does inflict is not the punishment which the law inflicted at the time the
crime is alleged to have been committed.
a member of that Church which claims to have its authority directly through a
regular and unbroken apostolic succession from the Author of our religion, Mr.
Cummings is found in the enjoyment and practice of all the privileges belonging
to the function and of all the sacred rights which are incident to it. The Constitution
of the United States, to be sure, so far as the article which proclaims that there
shall be no interference with religion is concerned, is not obligatory upon the
State of Missouri; but it announces a great principle of American liberty, a principle
deeply seated in the American mind, and now almost in the entire mind of the civilized
world, that as between a man and his conscience, as relates to his obligations
to God, it is not only tyrannical but unchristian to interfere. It is almost inconceivable
that in this civilized day the doctrines contained in this constitution should
be considered as within the legitimate sphere of human power. 'This question,'
it has been truly said by another clergyman sought to be restrained by this constitution,
'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; whether
yielding to the dictation of the civil power she shall admit those only who, according
to its judgment, are fit for the office, or, admitting those to be fit, whether
she shall not be free to admit those also who, though *314 at first not
fit, afterwards become so through pardon and forgiveness.
question is whether the Church is not as much at liberty and as fully competent
nowadays as at the beginning to call in as well the saints as those who were sinners,
as well the Baptist and Evangelist as St. Peter and St. Paul, the denier and persecutor
of the Redeemer, as well as his presanctified messenger and beloved disciple.
With all these questions the State itself has nothing to do. Their decision is
the high and unapproachable prerogative of the Church, under the guidance of its
Redeemer, who alone is the searcher of hearts, and whose power it is to recall
or reject whom he pleases.'
associate, in his opening of the case, has stated that the State government of
Missouri was at one time, 1861, hostile to the government of the United States;
and that loyal citizens were obliged to take up arms and overthrow it. No doubt
the fact must be so admitted. Governor Claiborne Jackson, holding the executive
authority of the State under a proper election, and the judiciary and the legislative
departments of the same State holding their respective authorities under a proper
election, held in pursuance of a constitution then existing and not disputed,
were at one time in the full possession of all the sovereignty of the State of
Missouri, as far as that sovereignty was delegated by the people to its government.
The Representatives of the State elected during the continuance of that constitution
were received here. Their Senators were here, chosen by that legislature, and
their credentials testified by the then governor. Their courts were in session
under the authority of that constitution.
the decision in Luther v. Borden, [FN17] the court cannot go beyond
these facts for the purpose of ascertaining in what condition, politically, Missouri
was, for the purpose of answering the inquiry, what was the government of Missouri
in 1861? Then it is plain that this oath calls upon the party *315 to swear
that he has been loyal to two governments of Missouri, one of which was directly
opposed to the other.
7 Howard, 1
counsel, indeed, say that the government of Missouri does not mean the government
strictly speaking of the State of Missouri, constituted by the people of the State
of Missouri; but that the government of Missouri is a compound, according to their
view, consisting of the constitution and laws of Missouri and the Constitution
and laws of the United States. But the argument is without force. When a law speaks
of a State government it does not mean the government of the United States. Nor
does it mean to include any authority over the people of a State which the government
of the United States may possess by virtue of the Constitution of the United States.
It means that political institution created by the people of the State for the
government of the people of the State, without any regard at all to the other
inquiry, over what subjects the people of that State have a right by government
to assume jurisdiction.
this is so, and it be true that a State governments is one governments as contradistinguished
from all others, and that the government of the United States is another government
as contradistinguished from a State government, then an oath which requires a
party to swear that he has committed no act of hostility against the State government,
and no act of hostility as against the government of the United States, is an
oath which, if he has committed acts of hostility against the State government,
renders it impossible that he can enjoy the franchise made dependent upon the
failure to exercise any acts of hostility. Yet that is this oath.
is said that what Missouri has done, in regulating the qualifications of those
who are to hold office and pursue certain professions, is simply the right to
define the qualifications which Missouri, in the exercise of her sovereignty,
thinks proper to demand. Is it so? In one sense it is so; but is that the sense
in which the provision has been incorporated in the constitution? To prescribe
age, property qualifications, or any other qualification that anybody has *316
an equal opportunity of acquiring, is one thing; to disqualify because of imputed
crimes, is quite another thing. The powers of government exerted in the doing
of these two things are entirely distinct. In the one, the power to regulate the
qualifications for office, or for the pursuit of callings, only is involved; in
the other, the power of forfeiture under the power to punish is involved, and
those two powers are altogether distinct. The one is the power which belongs to
every government to define and punish crime. The other, that which belongs to
every free government to provide for the manner in which its agents are to be
chosen, and the conditions upon which its citizens may exercise their various
callings and pursuits.
Justice FIELD delivered the opinion of the court.
case comes before us on a writ of error to the Supreme Court of Missouri, and
involves a consideration of the test oath imposed by the constitution of that
State. The plaintiff in error is a priest of the Roman Catholic Church, and was
indicted and convicted in one of the circuit courts of the State of the crime
of teaching and preaching as a priest and minister of that religious denomination
without having first taken the oath, and was sentenced to pay a fine of five hundred
dollars, and to be committed to jail until the same was paid. On appeal to the
Supreme Court of the State, the judgment was affirmed.
oath prescribed by the constitution, divided into its separable parts, embraces
more than thirty distinct affirmations or tests. Some of the acts, against which
it is directed, constitute offences of the highest grade, to which, upon conviction,
heavy penalties are attached. Some of the acts have never been classed as offences
in the laws of any State, and some of the acts, under many circumstances, would
not even be blameworthy. It requires the affiant to deny not only that he has
ever 'been in armed hostility to the United States, or to the lawful authorities
thereof,' but, among other things, that he has ever, 'by act or word,' manifested
his adherence to the cause of the enemies of the United *317 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 has ever
harbored or aided any person engaged in guerrilla warfare against the
loyal inhabitants of the United States, or has ever entered or left
the State for the purpose of avoiding enrolment or draft in the military service
of the United States; or, to escape the performance of duty in the militia of
the United States, has ever indicated, in any terms, his disaffection
to the government of the United States in its contest with the Robellion.
person who is unable to take this oath is declared incapable of holding, in the
State, 'any office of honor, trust, or profit under its authority, or of being
an officer, councilman, director, or trustee, or other manager of any corporation,
public or private, now existing or hereafter established by its authority, or
of acting as a professor or teacher in any educational institution, or in any
common or other school, or of holding any real estate or other property in trust
for the use of any church, religious society, or congregation.'
every person holding, at the time the constitution takes effect, any of the offices,
trusts, or positions mentioned, is required, within sixty days thereafter, to
take the oath; and, if he fail to comply with this requirement, it is declared
that his office, trust, or position shall ipso facto become vacant.
person, after the expiration of the sixty days, is permitted, without taking the
oath, 'to practice as an attorney or counsellor-at-law, nor after that period
can any person be competent, as a bishop, priest, deacon, minister, elder, or
other clergyman, of any religious persuasion, sect, or denomination, to teach,
or preach, or solemnize marriages.'
and imprisonment are prescribed as a punishment for holding or exercising any
of 'the offices, positions, trusts, professions, or functions' specified, without
having taken the oath; and false swearing or affirmation in taking it is declared
to be perjury, punishable by imprisonment in the penitentiary.
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. If one has ever expressed sympathy with any who were drawn into
the Rebellion, even if the recipients of that sympathy were connected by the closest
ties of blood, he is as unable to subscribe to the oath as the most active and
the most cruel of the rebels, and is equally debarred from the offices of honor
or trust, and the positions and employments specified.
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. On behalf of Missouri, it is urged that they
only prescribe a qualification for holding certain offices, and practising certain
callings, and that it is therefore within the power of the State to adopt them.
On the other hand, it is contended that they are in conflict with that clause
of the counsel of Missouri, which forbids any State to pass a bill of attainder
or an ex post facto law.
admit the propositions of the counsel of Missouri, that the States which existed
previous to the adoption of the Federal Constitution possessed originally all
the attributes of sovereignty; that they still retain those attributes, *319
except as they have been surrendered by the formation of the Constitution, and
the amendments thereto; that the new States, upon their admission into the Union,
became invested with equal rights, and were thereafter subject only to similar
restrictions, and that among the rights reserved to the States is the right of
each State to determine the qualifications for office, and the conditions upon
which its citizens may exercise their various callings and pursuits within its
are general propositions and involve principles of the highest moment. But it
by no means follows that, under the form of creating a qualification or attaching
a condition, the States can in effect inflict a punishment for a past act which
was not punishable at the time it was committed. The question is not as to the
existence of the power of the State over matters of internal police, but whether
that power has been made in the present case an instrument for the infliction
of punishment against the inhibition of the Constitution.
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 enrolment 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 counsellor to practice his profession, or of the
professor to teach the ordinary branches of education, or of *320 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
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. By statute 9
and 10 *321 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. [FN18]
4 Black 44.
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 any one who would sue for the same. [FN19]
punishments,' says Blackstone, 'consist in exile or bainshment, 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.' [FN20]
France, deprivation or suspension of civil rights, or of some of them, and among
these of the right of voting, of eligibility to office, of taking part in family
councils, of being guardian or trustee, of bearing arms, and of teaching or being
employed in a school or seminary of learning, are punishments prescribed by her
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 every one, and that in the protection *322 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 otherwise defined.
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
counsel for Missouri closed his argument in this case by presenting a striking
picture of the struggle for ascendency in that State during the recent Rebellion
between the friends and the enemies of the Union, and of the fierce passions which
that struggle aroused. It was in the midst of the struggle that the present constitution
was framed, although it was not adopted by the people until the war had closed.
It would have been strange, therefore, had it not exhibited in its provisions
some traces of the excitement amidst which the convention held its deliberations.
was against the excited action of the States, under such influences as these,
that the framers of the Federal Constitution intended to guard. In Fletcher
v. Peck, [FN21] Mr. Chief Justice Marshall, speaking of such action, uses
this language: 'Whatever respect might have been felt for the State sovereignties,
it is not to be disguised that the framers of the Constitution viewed with some
apprehension the violent acts which might grow out of the feelings of the moment;
and that the people of the United States, in adopting that instrument, have manifested
a determination to shield themselves and their property from the effects of those
sudden and strong passions to which men are exposed. The restrictions on the legislative
power of the States are obviously founded in this sentiment; and the Constitution
of the United States contains what may be deemed a bill of rights for the people
of each State.'
6 Cranch, 137.
"No State shall pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts."
bill of attainder is a legislative act which inflicts punishment without a judicial
the punishment be less than death, the act is termed a bill of pains and penalties.
Within the meaning of the Constitution, bills of attainder include bills of pains
and penalties. 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 nations of the
enormity of the offence.
of this sort,' says Mr. Justice Story, 'have been most usually passed in England
in times of rebellion, or gross subserviency to the crown, or of violent political
excitements; 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.' [FN22]
Commentaries, § 1344.
bills are generally directed against individuals by name; but they may be directed
against a whole class. The bill against the Earl of Kildare and others, passed
in the reign of Henry VIII, [FN23] enacted that 'all such persons which be or
heretofore have been comforters, abettors, partakers, confederates, or adherents
unto the said' late earl, and certain other parties, who were named, 'in his or
their false and traitorous acts and purposes, shall in likewise stand, and be
attainted, adjudged, and convicted of high treason;' and that 'the same attainder,
judgment, and conviction against the said conforters, abettors, partakers, confederates,
and adherents, shall be as strong and effectual in the law against them, and every
of them, as though they and every of them *324 had been specially, singularly,
and particularly named by their proper names and surnames in the said act.'
28 Henry VIII, chap. 18; 3 Stats. of Realm, 694.
bills may inflict punishment absolutely, or may inflict it conditionally.
bill against the Earl of Clarendon, passed in the reign of Charles the Second,
enacted that the earl should suffer perpetual exile, and be forever banished from
the realm; and that if he returned, or was found in England, or in any other of
the king's dominions, after the first of February, 1667, he should suffer the
pains and penalties of treason; with the proviso, however, that if be surrendered
himself before the said first day of February for trial, the penalties and disabilities
declared should be void and of no effect. [FN24]
Printed in 6 Howell's State Trials, p. 391.
British act of Parliament,' to cite the language of the Supreme Court of Kentucky,
'might declare, that if certain individuals, or a class of individuals, failed
to do a given act by a named day, they should be deemed to be, and treated as
convicted felons or traitors. Such an act comes precisely within the definition
of a bill of attainder, and the English courts would enforce it without indictment
or trial by jury.' [FN25]
Gaines v. Buford, 1 Dana, 510.
the clauses of the second article of the constitution of Missouri, to which we
have referred, had in terms declared that Mr. Cummings was guilty, or should be
held guilty, of having been in armed hostility to the United States, or of having
entered that State to avoid being enrolled or drafted into the military service
of the United States, and, therefore, should be deprived of the right to preach
as a priest of the Catholic Church, or to teach in any institution of learning,
there could be no question that the clauses would constitute a bill of attainder
within the meaning of the Federal Constitution. If these clauses, instead of mentioning
his name, had declared that all priests and clergymen within the State of Missouri
were guilty of these acts, or should be held guilty of them, and hence be subjected
to the like deprivation, the clauses would be equally open to objection. And,
*325 further, if these clauses had declared that all such priests and clergymen
should be so held guilty, and be thus deprived, provided they did not, by a day
designated, do certain specified acts, they would be no less within the inhibition
of the Federal Constitution.
all these cases there would be the legislative enactment creating the deprivation
without any of the ordinary forms and guards provided for the security of the
citizen in the administration of justice by the established tribunals.
results which would follow from clauses of the character mentioned do follow from
the clauses actually adopted. The difference between the last case supposed and
the case actually presented is one of form only, and not of substance. The existing
clauses presume the guilt of the priests and clergymen, and adjudge the deprivation
of their right to preach or teach unless the presumption be first removed by their
expurgatory oath--in other words, they assume the guilt and adjudge the punishment
conditionally. The clauses supposed differ only in that they declare the guilt
instead of assuming it. The deprivation is effected with equal certainty in the
one case as it would be in the other, but not with equal directness. The purpose
of the lawmaker in the case supposed would be openly avowed; in the case existing
it is only disguised. The legal result must be the same, for what cannot be done
directly cannot be done indirectly. The Constitution deals with substance, not
shadows. Its inhibition was levelled at the thing, not the name. It intended that
the rights of the citizen should be secure against deprivation for past conduct
by legislative enactment, under any form, however disguised. If the inhibition
can be evaded by the form of the enactment, its insertion in the fundamental law
was a vain and futile proceeding.
proceed to consider the second clause of what Mr. Chief Justice Marshall terms
a bill of rights for the people of each State--the clause which inhibits the passage
of an ex post facto law.
an ex post facto law is meant one which imposes a punishment *326
for an act which was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed; or changes the rules of evidence by which
less or different testimony is sufficient to convict than was then required.
Fletcher v. Peck Mr. Chief Justice Marshall defined an ex post facto
law to be one 'which renders an act punishable in a manner in which it was not
punishable when it was committed.' 'Such a law,' said that eminent judge, 'may
inflict penalties on the person, or may inflict pecuniary penalties which swell
the public treasury. The legislature is then prohibited from passing a law by
which a man's estate, or any part of it, shall be seized for a crime, which was
not declared by some previous law to render him liable to that punishment. Why,
then, should violence be done to the natural meaning of words for the purpose
of leaving to the legislature the power of seizing for public use the estate of
an individual, in the form of a law annulling the title by which he holds the
estate? The court can perceive no sufficient grounds for making this distinction.
This rescinding act would have the effect of an ex post facto law. It forfeits
the estate of Fletcher for a crime not committed by himself, but by those from
whom he purchased. This cannot be effected in the form of an ex post facto
law, or bill of attainder; why, then, is it allowable in the form of a law annulling
the original grant?'
act to which reference is here made was one passed by the State of Georgia, rescinding
a previous act, under which lands had been granted. The rescinding act, annulling
the title of the grantees, did not, in terms, define any crimes, or inflict any
punishment, or direct any judicial proceedings; yet, inasmuch as the legislature
was forbidden from passing any law by which a man's estate could be seized for
a crime, which was not declared such by some previous law rendering him liable
to that punishment, the chief justice was of opinion that the rescinding act had
the effect of an ex post facto law, and was within the constitutional prohibition.
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.
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 enrolment 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 *328 post
facto law--'they impose a punishment for an act not punishable at the time
it was committed.'
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.'
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.
objectionable character of these clauses will be more apparent if we put them
into the ordinary form of a legislative act. Thus, if instead of the general provisions
in the constitution the convention had provided as follows: Be it enacted, that
all persons who have been in armed hostility to the United States shall, upon
conviction thereof, not only be punished as the laws provided at the time the
offences charged were committed, but shall also be thereafter rendered incapable
of holding any of the offices, trusts, and positions, and of exercising any of
the pursuits mentioned in the second article of the constitution of Missouri;--no
one would have any doubt of the nature of the enactment. It would be an ex
post facto law, and void; for it would add a new punishment for an old offence.
So, too, if the convention had passed an enactment of a similar kind with reference
to those acts which do not constitute offences. Thus, had it provided as follows:
Be it enacted, that all persons who have heretofore, at any time, entered or left
the State of Missouri, with intent to avoid enrolment or draft in the military
service of the United States, shall, upon conviction *329 thereof, be forever
rendered incapable of holding any office of honor, trust, or profit in the State,
or of teaching in any seminary of learning, or of preaching as a minister of the
gospel of any denomination, or of exercising any of the professions or pursuits
mentioned in the second article of the constitution;--there would be no question
of the character of the enactment. It would be an ex post facto law, because
it would impose a punishment for an act not punishable at the time it was committed.
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 *330 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
question arose in New York, soon after the treaty of peace of 1783, upon a statute
of that State, which involved a discussion of the nature and character of these
expurgatory oaths, when used as a means of inflicting punishment for past conduct.
The subject was regarded as so important, and the requirement of the oath such
a violation of the fundamental principles of civil liberty, and the rights of
the citizen, that it engaged the attention of eminent lawyers and distinguished
statesmen of the time, and among others of Alexander Hamilton. We will cite some
passages of a paper left by him on the subject, in which, with his characteristic
fulness and ability, he examines the oath, and demonstrates that it is not only
a mode of inflicting punishment, but a mode in violation of all the constitutional
guarantees, secured by the Revolution, of the rights and liberties of the people.
we examine it' (the measure requiring the oath), said this great lawyer, 'with
an unprejudiced eye, we must acknowledge, not only that it was an evasion of the
treaty, but a subversion of one great principle of social security, to wit: that
every man shall be presumed innocent until he is proved guilty. This was to invert
the order of things; and, instead of obliging the State to prove the guilt, in
order *331 to inflict the penalty, it was to oblige the citizen to establish
his own innocence to avoid the penalty. It was to excite scruples in the honest
and conscientious, and to hold out a bribe to perjury. . . . It was a mode of
inquiry who had committed and of those crimes to which the penalty of disqualification
was annexed, with this aggravation, that it deprived the citizen of the benefit
of that advantage, which he would have enjoyed by leaving, as in all other cases,
the burden of the proof upon the prosecutor.
place this matter in a still clearer light, let it be supposed that, instead of
the mode of indictment and trial by jury, the legislature was to declare that
every citizen who did not swear he had never adhered to the King of Great Britain
should incur all the penalties which our treason laws prescribe. Would this not
be a palpable evasion of the treaty, and a direct infringement of the Constitution?
The principle is the same in both cases, with only this difference in the consequences--that
in the instance already acted upon the citizen forfeits a part of his rights;
in the one supposed he would forfeit the whole. The degree of punishment is all
that distinguishes the cases. In either, justly considered, it is substituting
a new and arbitrary mode of prosecution to that ancient and highly esteemed one
recognized by the laws and constitution of the State. I mean the trial by jury.
us not forget that the Constitution declares that trial by jury, in all cases
in which it has been formerly used, should remain inviolate forever, and that
the legislature should at no time erect any new jurisdiction which should not
proceed according to the course of the common law. Nothing can be more repugnant
to the true genius of the common law than such an inquisition as has been mentioned
into the consciences of men. . . . If any oath with retrospect to past conduct
were to be made the condition on which individuals, who have resided within the
British lines, should hold their estates, we should immediately see that this
proceeding would be tyrannical, and a violation of the treaty; and yet, when the
same mode is employed to divest *332 that right, which ought to be deemed
still more sacred, many of us are so infatuated as to overlook the mischief.
say that the persons who will be affected by it have previously forfeited that
right, and that, therefore, nothing is taken away from them, is a begging of the
question. How do we know who are the persons in this situation? If it be answered,
this is the mode taken to ascertain it--the objection returns--'tis an improper
mode; because it puts the most essential interests of the citizen upon a worse
footing than we should be willing to tolerate where inferior interests were concerned;
and because, to elude the treaty, it substitutes for the established and legal
mode of investigating crimes and inflicting forfeitures, one that is unknown to
the Constitution, and repugnant to the genius of our law.'
views have frequently been expressed by the judiciary in cases involving analogous
questions. They are presented with great force in The matter of Dorsey;
[FN26] but we do not deem it necessary to pursue the subject further.
7 Porter, 294.
judgment of the Supreme Court of Missouri must be reversed, and the cause remanded,
with directions to enter a judgment reversing the judgment of the Circuit Court,
and directing that court to discharge the defendant from imprisonment, and suffer
him to depart without day.
IT IS SO ORDERED.
CHIEF JUSTICE, and Messrs. Justice SWAYNE, DAVIS, and MILLER dissented. In behalf
of this portion of the court, a dissenting opinion was delivered by Mr. Justice
Miller. This opinion applied equally or more to the case of Ex parte Garland
(the case next following), which involved principles of a character similar to
those discussed in this case. The dissenting opinion is, therefore, published
after the opinion of the court in that case.
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