Test Oath Cases

In 1862, the U.S. Congress passed a law requiring that all federal office holders take an oath declaring that they had ‘‘never voluntarily borne arms against the United States’’ or ‘‘voluntarily given ... aid, countenance, counsel, or encouragement’’ to those making war against the United States. After the Civil War, Congress extended the statute to cover lawyers practicing in federal courts. In 1865, Missouri amended its constitution to require that office holders, teachers, lawyers, officers of corporations, college professors, and even clergymen take a similar oath. The Missouri law was broader than the federal law and required that the oath taker swear that he or she had never expressed sympathy for the rebellion.

In Cummings v. Missouri (1867) the Supreme Court struck down the Missouri law as an ex post facto law, in violation of the Constitution; the same day, and on the same reasoning, the Court struck down the revised federal law in Ex parte Garland (1867). In both cases Justice Stephen Field spoke for a five-to-four majority, arguing that the laws were ex post facto because they punished actions after they had been taken that were not prohibited at the time they were taken. These test oaths were also seen as violating basic civil liberties because the law went into effect without a jury trial—or any trial at all—and the law required that the oath taker incriminate himself. For the federal law this was clearly a violation of the Fifth Amendment protection against self-incrimination. The majority in each case consisted of the four pre- Civil War Democrats still on the Court (Justices Wayne, Nelson, Grier, and Clifford) as well as Justice Field, who while appointed by Lincoln was increasingly at odds with the Republican Party on the nature and purpose of the war. The four dissenters in both cases were Lincoln appointees sympathetic to the union cause.

Cummings involved a Catholic priest who refused to take a test oath and was fined $500 for acting performing his priestly functions. It is not clear whether he had in fact been a Confederate sympathizer. Garland, on the other hand, had been an attorney before the war, but then became a member of the Confederate Congress. At the end of the war he wanted to resume his law practice in federal court.

In his opinion in Cummings Justice Field asserted that the ‘‘disabilities created by the Constitution of Missouri must be regarded as penalties—they constitute punishment.’’ The same reasoning applied to the federal law with equal force. If the laws were ‘‘punishments,’’ then they were clearly ex post facto and unconstitutional because they were passed after the war ended and after the acts in question took place. The Missouri law, which barred oath takers who had expressed sympathies to the Confederate cause but not actually acted on those sympathies, was also problematic because it in effect made ‘‘thought’’ rather than ‘‘speech’’ or ‘‘action’’ a crime.

But were these ‘‘penalties’’ that ‘‘constitute punishment’’? The four dissenters argued they were not. The test oaths did not lead to fines or jail time. They did not prohibit people from voting, as conviction for a felony would. The dissenters also understood that many of those who did want to take the test oath could have been tried for treason because they had made war against the United States. The dissenters saw the oaths not as a punishment, but as a way of preventing traitors from participating in the government.

These cases are generally seen as victories for civil liberties over vindictive legislatures. However, especially in the Ex parte Garland, an alternative analysis might suggest the case should have gone the other way. Before the war Garland had been a lawyer admitted to argue before the U.S. Supreme Court. He abandoned the United States and accepted a position in the Confederate government, which then proceeded to make war on the United States. Having taken an oath to support the U.S. Constitution, he then made war on that Constitution. Garland was not a conscript who fought in the Confederate army. He was Confederate by choice and a Confederate policymaker. As such, it might have been reasonable for Congress to conclude that his improper behavior, while not illegal, nevertheless made him unfit to practice law before the U.S. courts. In this way, the test oath could have been seen as a new measure of character and fitness similar to other character and fitness requirements of modern law practice. Similarly, since Garland had taken an oath to support the Constitution before the war, it could be argued that prohibiting his later law practice was not an ex post facto rule, but rather the logical result of his violating the oath he took before the war.

PAUL FINKELMAN

References and Further Reading

• Hyman, Harold M. The Era of the Oath: Northern Loyalty Tests during the Civil War and Reconstruction. Philadelphia: University of Pennsylvania Press, 1954.
• ———. To Try Men’s Soul: Loyalty Tests in American History. Berkeley: University of California Press, 1959.