Cummings and the Loyalty Oath
From the days
of the apostles, Christians have often found themselves opposing
unjust laws of government with this response: "We must obey God
rather than men." Today, the U.S. Catholic bishops are facing down
a federal government that has ordered Catholic institutions to provide
employee insurance coverage for sterilization, abortifacient and
contraceptive drugs, in violation of the Church's teachings and
its members' consciences. The bishops reply: "We cannot – we
will not – comply." Ninety years ago, Catholics battled to
the U.S. Supreme Court in Pierce
v. Society of Sisters, for the right to educate their children
in parochial schools.
So it has always
been. As George Washington is reputed to have said: "Government
is not reason; it is not eloquent; it is force. Like fire, it is
a dangerous servant and a fearful master." Government is not our
It was the
summer of 1865. The American civil war was over and the radical
reconstructionists held the state of Missouri tightly. A new state
constitution, the "Drake" or "carpetbagger" constitution, was forced
on the citizens, narrowly passing by a margin created by the "yes"
votes of the occupying Union soldiers. The purpose was to punish
and remove from public view those who had favored the southern cause
in the newly-ended war. The new constitution required a loyalty
oath to the United States in which the oath-taker swore that he
was loyal to the Union during the war. Giving aid and comfort
to the enemy and avoiding the draft were cited as disqualifiers,
but the oath went much further. Anyone who had ever made a mere
suggestion of sympathy with those engaged in the rebellion were
considered disloyal. An example of such disloyalty was seen in a
man who had brought his dying confederate brother home for burial.
No one was allowed to vote without swearing the oath.
it a crime for any officeholder, lawyer, teacher, corporation director/manager
or member of the clergy to practice their profession after September
2, 1865, unless they had taken the oath. Missouri Gov. Fletcher
took a hard line on enforcement, suggesting that the state penitentiary
at Jefferson City be enlarged to accommodate all the clergymen and
teachers who refused to take the oath. Donald Rau, "Three Cheers
for Father Cummings," 1977 Yearbook, Supreme Court Historical
Society. [See a copy of the handwritten oath
of B.F. Crosswhile here]
of St. Louis, Peter Kenrick, viewed the oath as an infringement
of religious liberty and determined to resist. Believing the oath
to be unconstitutional, he instructed the priests of the state not
to take the oath, saying "The next thing we know, they will be dictating
what we shall preach." Rau, "Three Cheers."
3, 1865, Father John Cummings, the young pastor of St Joseph Catholic
Church in Louisiana, Missouri said his regular Sunday mass and preached
from the pulpit. He had not taken the oath. The next morning a grand
jury convened under Judge Thomas Fagg indicted Father
Cummings for preaching the Gospel. A contemporary account takes
up the story:
Sheriff, one Wm. Pennix (give all their names to infamy), once
a strong pro-slavery man, arrested Father Cummings and lodged
him in jail, consigning him to the 'felon's cell' and the association
ot thieves. Said one of the felons to the priest as he entered
the cell, "What are you put in here for?' 'For preaching the Gospel,'
replied the priest. 'Good,' said the man, 'I am in here for stealing
and imprisonment of Mr. Cummings produced vast excitement. Men
and women crowded around the jail, and the commotion was so great
that the Judge and his men were anxious to bail him out, but he
would not be bailed out. Then they were anxious that he should
run off, and gave him a chance to do so, but even this poor boon
he declined, preferring to remain in jail. In a few days Archbishop
Kenrick, of St. Louis, sent up and had him bailed.
~ W.M. Leftwich,
in Missouri, 1870
Father Cummings appeared before the court. He pled guilty to preaching
without taking the oath, but complained that the law was wrong.
Fagg accepted the plea and readied to sentence the priest. The proceedings
were surprisingly halted, however, because a solidly pro-union lawyer
and U.S. Senator from Missouri, John Henderson, happened to be in
the courtroom that day on other business. Henderson rose and objected,
pointing out that Father Cummings had actually pled "not guilty"
since he claimed the law was invalid. The court had to agree and
allowed withdrawal of the guilty plea. A bench trial was held and
Judge Fagg convicted the priest, sentenced him to pay a $500 fine
and to be held in jail until it was paid.
It was to
be another day of surprises for the Radicals. Much to their chagrin,
Father Cummings refused to pay his fine or to post bond for an
appeal, and refused to permit anyone else to pay his fine for
him. The reaction of Father Cummings' parishioners at Louisiana
must have added considerably to the discomfort of the Radicals.
They refused to accept the imprisonment of their pastor without
protest. "Father Cummins' [sic] parishioners came up from Louisiana,
and camping about the dungeon of their beloved shepherd, were
in much the same frame of mind as the children of Israel when
they set down and wept by the rivers of Babylon."
~ Rau, "Three
Cheers for Father Cummings"
priest remained imprisoned in the Pike County Jail at Bowling Green
for more than two years, while his conviction was affirmed by a
Missouri Supreme court (just fifteen years after its decision in
the Dred Scott case). With the support of Archbishop Kenrick
and the assistence of nationally respected lawyers, Cummings finally
won his freedom in the Supreme Court of the United States. In addition
to denouncing the odiousness of all loyalty oaths, the court noted
that other countries at least limit their loyalty oaths to contemporaneous
conduct, but here "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...." Cummings
v. State of Missouri, 71 U.S. 277 (1866).
The Court found
the law to be an unconstitutional ex post facto law enacted
to punish past conduct that was not a crime at the time. The Court
also held the law to be an unconstitutional "bill of attainder"
which is any legislative act which inflicts punishment without a
trial. Father Cummings was then released and resumed his duties.
and ministers had also been convicted under the law and some
of those also imprisoned for a time.
second-most famous Supreme court litigant died young, just ten years
after his famous defiance of the state. Father Cummings is buried
at St. Louis, Missouri in Calvary Cemetery, just 500 yards from
Missouri's most famous litigant, Dred Scott.
© 2012 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.