Father Cummings and the Loyalty Oath by Randy England

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 friend.

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.

Missouri made 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]

Archbishop 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."

On September 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:

Soon after, 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.

The Catholic 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.

Other priests and ministers had also been convicted under the law and some of those also imprisoned for a time.

Missouri's 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.

Randy England [send him mail] is a writer, criminal defense lawyer and member of St. Peter Catholic Church in in Jefferson City, Missouri. He is a former prosecutor and grew up near St. Louis, Missouri. Randy is also the author of Unicorn in the Sanctuary (Tan Books) and the end times novel, The Last Fisherman: A novel of the last Pope, the anti-christ and the end of the age. Visit his website.