Courtesy of the Missouri State Archives
By Sean McLachlan
On Sunday, September 3, 1865, Father John Cummings preached to his small Catholic congregation in the Pike County town of Louisiana. It is not recorded what the twenty-five-year-old priest said to his mostly Irish immigrant congregation at St. Joseph’s Church, but the mere act of his giving a sermon that day would change the course of Missouri history.
Two days later, a grand jury at Bowling Green indicted him. The priest faced up to six months in jail and a fine of five hundred dollars. His crime? Preaching without a permit.
Just two months before, the General Assembly had passed a new state constitution. Dominated by the newly formed Radical Republican party, which wanted to punish Missourians who had fought against the government in the Civil War, the General Assembly drafted a constitution that required an “Iron-Clad” oath of loyalty before someone could vote, hold public office, practice law, teach, or preach. A person had to swear he had never fought for the Confederacy or vocally supported it. “Feeling sympathy” for the Confederacy was also made treasonous, as was “admitting dissatisfaction with the Government of the United States.”
These were harsh measures, but the state had just been through years of bitter fighting, and the Radicals wanted the rebellion squashed for good. Similar laws were being passed throughout the South, and there was already one in place for federal employees.
The other faction of the Republican Party, the Conservative Unionists, tried to get the loyalty oath overruled by an amendment. But they were a minority in the Radical-dominated General Assembly, and their proposal got nowhere. The constitution went to a popular referendum, passed by barely 1,800 votes, and became law on July 4, 1865. Governor Thomas Fletcher declared that people had sixty days to take the oath or be in violation of the law. The deadline had expired the day before Cummings gave his sermon.
Cummings was not alone in refusing to take the oath, and he wasn’t the only clergyman to be arrested for preaching illegally. However, he soon became the symbol of the opposition. When the constitution passed, Archbishop Peter Richard Kenrick of St. Louis sent a letter to all priests in his diocese advising them not to take the oath and pledging his support if they didn’t. Episcopal Bishop C.O. Hawks and Methodist Bishop Henry Kavanaugh told their clergy to act on their conscience but didn’t actively encourage them to refuse. The General Association of the Baptist Church of Missouri met in Boonville in mid-August and declared the oath a violation of the constitution, but many Radical members upheld the oath and formed the Loyal Missouri Baptist Convention. In fact, representatives from every denomination criticized the new law. Lawyers objected to the oath, too, and many prominent St. Louis attorneys refused to take it.
It seems the majority of clergy who preached that Sunday flaunted the law. Dozens were arrested and posted bond, but all their cases were held over until the next court session by judges eager to avoid the responsibility of imprisoning preachers. Most preached unhindered for months, especially in rural areas opposed to the Radicals. It appears many officials felt uncomfortable arresting clergy and hoped the whole matter would blow over. But the case of Cummings vs. State of Missouri (1866) would put the state in the national limelight.
The Friday after his sermon, Cummings appeared before Judge Thomas Jefferson Fagg, who had lost a considerable amount of money at the end of the war when his slaves became\ free. In a touch of irony, the “court” was actually a local Methodist church in Bowling Green that had to perform double duty after the county courthouse was torched during the war. Cummings acted as his own defense and refused to post bond, insisting on being tried immediately. The charges were read and Cummings was asked how he pled.
“I am guilty, sir,” the priest replied humbly. This startled the court. When the judge asked if Cummings had anything further to say, the priest launched into an impassioned speech in which he compared the trial to that of Jesus and proclaimed that the state had no right to put conditions on his right to preach, because that came from a higher authority. He declared the law unjust and invalid.
Some lawyers watching the trial leapt to their feet when they heard this last statement. Asserting a law was unjust and invalid was actually a line of defense, they said, so his plea should be changed to “not guilty.”
Cummings agreed to have one of the lawyers, Robert Campbell, represent him. Campbell was a Conservative Republican opposed to the harsh measures of the Radicals, but his loyalty was unquestioned. He had been a general in the Union militia during the war. The judge accepted a change of plea and scheduled a retrial for the next day.
Cummings refused bond and spent that night in jail at Bowling Green. The St. Louis Daily Missouri Republican reported he shared a cell with two burglars and a horse thief. The trial didn’t last long the next day. Cummings had no defense other than the validity of the law itself, so he was found guilty of preaching without having taken the oath of loyalty and ordered to pay a fine of five hundred dollars. Since he refused, he was sent to jail until he paid.
News of the trial spread. As Cummings cooled his heels behind bars, his parishioners camped outside in a show of support, and newspapers across the country took up the case. Northern papers lambasted Missouri for jailing a priest whose only offense was giving a sermon, and opponents within the state made him their symbol of resistance. Campbell and several other lawyers appealed to have the case heard before the State Supreme Court. When this was granted, Cummings allowed some friends to post his bond. He had spent exactly a week in jail.
Now it was up to the lawyers. They ignored Cummings’s statement that there was a constitutional right to preach, because the US Constitution does not explicitly state that. Instead, they claimed the oath requirement was ex post facto, or after the fact, because it made\ someone a criminal for acts done before they were illegal, such as feeling sympathy for the rebellion. Active support for the rebellion had been a crime, but the new law was ex post facto because it added additional punishment. It was also ex post facto because it changed the way loyalty was determined.
The lawyers also asserted that the Missouri Constitution was a bill of attainder, a punishment without the benefit of a trial, because it assumed all clergymen to be guilty and put the burden on them to prove their innocence.
Cummings and his legal team did not have a sympathetic audience in the Missouri Supreme Court, which included men handpicked by Governor Fletcher. The court ruled that the law wasn’t ex post facto because it didn’t punish a past event, but rather was an existing law outlining the qualifications for certain professions. It also ruled the oath didn’t constitute a bill of attainder since it didn’t punish anyone for a particular crime, merely kept them from practicing certain professions.
Cummings’s lawyers appealed to the US Supreme Court, and at this point they received a powerful ally, Montgomery Blair, a leading attorney and former member of Lincoln’s cabinet. His credentials included representing the slave Dred Scott in his famous suit for freedom. After Lincoln’s assassination, Blair became a close advisor to President Andrew Johnson and urged him to treat former rebels gently for the sake of national unity. Blair brought in another important lawyer, David Dudley Field, who was the brother of one of the Supreme Court justices. Archbishop Kenrick gave financial support.
This legal dream team used the same line of reasoning as in the previous trial but to a much more receptive audience. A final decision, however, didn’t come until January 14, 1867, when the court ruled that Missouri had kept Cummings from preaching for committing an act (disloyalty) that wasn’t a crime when it was committed. The oath was a bill of attainder since it presumed guilt without trial and therefore constituted a violation of a citizen’s rights. This ruling from the highest court in the land killed the loyalty oath in Missouri. An amendment to the Missouri Constitution in 1870 abolishedloyalty oaths for voters and jurors as well.Cummings vs. Missouri became a cornerstone of later legislation and has been quoted in Supreme Court cases where the debate centered on loyalty oaths. In a 1952 decision regarding whether public employees had to swear they had never been members of the Communist Party, Justice Hugo Lafayette Black called the Cummings ruling “one more of the constitution’s great guarantees of personal liberty.”
While the ruling abolished the loyalty oath, it was already being widely ignored. The Missouri
Statesman of May 11, 1866, noted, “Not one of the Catholic bishops, priests, or ministers of any other denomination who preaches in St. Louis has been indicted in that county. Yet they preach every day.” After the initial arrests when the state constitution came into effect, few police officers or judges tried to enforce the law. This was due to the widespread assumption that the Supreme Court would declare the oath unconstitutional and because all but the most ardent Radicals wanted to avoid the embarrassment of arresting a church leader.
The Radicals in the General Assembly criticized the decision—one even called for the abolition of the Supreme Court—but their hands were tied. The abolition of the test oath for voting led to a resurgence of the Democratic and Conservative Unionist parties. Within a decade the Radicals would be a spent force inMissouri politics.
Considering Cummings’s importance to Missouri history, surprisingly little is known about him. Official sources can’t agree whether he was born in Ireland or Missouri, and little is recorded other than that he attended St. Vincent’s Seminary at Cape Girardeau from 1859 to 1863 and was ordained by Archbishop Kenrick.
Cummings continued to preach, first in Louisiana, Missouri, and then Indian Creek, until 1870, when he became ill and retired. He died three years later. Although he had changed the laws of his state and his country, no newspaper ran an obituary for him. Yet his legacy lives on every time someone gives a sermon.