TEST OATH CASES Cummings v. Missouri 4 Wallace 277 (1867) Ex Parte Garland 4 Wallace 333 (1867)

Historically test oaths were weapons to inflict penalties and punishments on obnoxious minorities and were enemies of freedom of political and religious thought. A test or loyalty oath should not be confused with an oath of allegiance, which is a promissory oath by which one swears to support the government and, if assuming office, to discharge its duties faithfully. An oath of allegiance concerns future conduct. A test oath is retroactive and purgative, because it is a disclaimer of specific beliefs, associations, and behavior deemed criminal or disloyal.

Missouri by its constitution prescribed a series of disavowals of belief and past conduct in the form of oaths to be taken by all voters, jurors, state officers, clergymen, lawyers, teachers, and corporation officers. All must swear as a condition of voting, holding office, teaching, and the like, that they had never been in armed hostility to the United States, had never by word or deed manifested adherence to the enemies of the country or desired their victory, had never been connected with any organization inimical to the United States, and had never been a Southern sympathizer. Anyone teaching, preaching, voting, or engaging in any of the specified activities without first taking the oaths was subject to fine and imprisonment. Cummings, a Roman Catholic priest, carried on his religious duties without taking the oath and was convicted.

The test oath prescribed by Congress was a disclaimer of having served the Confederacy and applied only to federal officials until extended in 1865 to members of the federal bar. It could be construed as a wartime qualification for office until it was extended to peacetime and to members of the federal bar. Until then it was not passed to inflict punishment for past offenses. The oath disqualified augustus h. garland, who had spent the war as a member of the Confederate Congress, from resuming his prewar practice before the Supreme Court, although he had been given a presidential pardon.

The Supreme Court, Justice stephen j. field writing for a bare majority, held unconstitutional both the Missouri requirement of a test oath and the federal requirement of 1865. Field reasoned that each violated the bans against ex post facto laws and bills of attainder. To conclude that they constituted ex post facto laws, Field had to demonstrate that they retroactively imposed punishment for acts not criminal when committed. Missouri's dragnet covered not only hostile acts against the government but "words, desires, and sympathies also," and some of the acts were not even blameworthy. The federal statute reached acts that under certain circumstances might not have been offenses, such as assisting persons in armed hostility to the United States, serving in innocuous positions in the South, or reluctantly obeying the existing order. Persons who were incapable of truthfully taking the oaths suffered disabilities that constituted punishment, such as the deprivation of civil and political rights, disqualifications from office and from the pursuit of lawful professions, and, in the case of Garland, disbarment. Justice samuel f. miller for the dissenters replied that an ex post facto law punished only in a criminal sense by imposing fines and imprisonment, not civil disabilities.

Field described a bill of attainder as a legislative act that inflicts punishment without a judicial trial. Attainders, he insisted, could be directed against whole classes, not just named individuals, and might inflict punishments conditionally, as in these cases. Cummings the priest and Garland the lawyer were presumed guilty until they removed that presumption by their expurgatory oaths; if it was not removed, they faced the punishment of being deprived of their professions without trial and conviction. Miller could see no attainder because the required oaths designated no criminal by name or description, declared no guilt, and inflicted neither sentence nor punishment. He saw merely a qualification for office, a position that Field savaged. Miller accurately argued, however, that Field stretched the conventional meanings of ex post facto laws and bills of attainder to cover the cases before the Court. For that reason, these decisions are today considered triumphs for civil liberties; in their time, however, they exposed the Court to accusations of sympathizing with the Confederate cause, opposing Reconstruction, and assisting enemies of the Union.

Leonard W. Levy
(1986)

Bibliography

Fairman, Charles 1939 Mr. Justice Miller and the Supreme Court. Pages 129–136. Cambridge, Mass.: Harvard University Press.

Swisher, Carl Brent (1930) 1963 Stephen J. Field: Craftsman of the Law. Pages 138–154. Hamden, Conn.: Archon Books.