Father Cummings and the Loyalty Oath

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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 state often demands more than the Christian conscience can give. 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.

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 oath below.]

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:

[A] Radical 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 horses.”

The arrest 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, Martyrdom in Missouri, 1870

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.

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.”

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.


Loyalty oath of Wm C. Wilson, State of Missouri, County of St. Louis, page one, August 25, 1865. Dexter P. Tiffany Collection, Missouri History Museum, St. Louis, Missouri. B67/F2

Judge Napolitano on Election 2016 and Being a Pro-Life Libertarian

Judge Napolitano talks about the election as well as the basis of his natural-law based libertarianism. As a pro-life Catholic libertarian, I am grateful to have such a well-spoken, high-profile libertarian expressing these ideas. It is worth the whole 33 minutes:

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Free City Podcast Interview

FreeCitiesPodcastFree Cities Podcast focuses on real life examples of decentralization and market alternatives to problems.

Anthony Caprio and I discussed why Romans chapter 13 is not the blanket support for the state that many Christians believe; What about theft and greed in a free society? and might a stateless society offer better options for living a moral life?

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A question for non-libertarian Catholics

Catholic LibertarianWhen there is a problem or issue to resolve, should we prefer voluntary solutions over coercive solutions? I promise to come back to this question, but first a few things . . .

Any discussion of Catholics and libertarianism on the internet will always attract some troll who drops in just long enough to conclude that “Catholicism and libertarianism are incompatible.” A few of these folks will stick around to complain that Catholics can’t be libertarian because . . .

  • libertarians are selfish individualists
  • libertarians are libertines
  • libertarians dissent from the doctrines or moral teachings of the Church
  • libertarians cannot see Christ in others
  • libertarians are pro-abortion

While such statements surely apply to some libertarians, these criticisms have nothing to do with libertarianism in itself.

Doing evil that good may come of it

In Romans 3:8, St. Paul tells us that the ends do not justify the means: one must not do evil so that good may come of it. Likewise Pope Saint John Paul II teaches this principle in his encyclical, Veritatis Splendor:

Let us say that someone robs in order to feed the poor: in this case, even though the intention is good, the uprightness of the will is lacking. Consequently, no evil done with a good intention can be excused.

Don’t tread on your neighbor

The golden rule famously tells us to do unto others what we would have them do unto ourselves; and we are told in Tobit 4:15: “Do to no one what you yourself dislike.”

In libertarianism, there is but a single rule. It is called the non-aggression principle: that no one may initiate physical force against another. Unless one trespasses against the person or property of another, they must be left in peace. We call this freedom. It is not just a moral imperative; man’s freedom also serves a spiritual purpose.

Freedom: Hothouse of sin or prerequisite for virtue?

Archbishop Fulton Sheen once explained this about earthly freedom:

Take the quality of freedom away from anyone, and it is no more possible for him to be virtuous than it is for the blade of grass which he treads beneath his feet to be virtuous. Take freedom away from life, and there would be no more reason to honor the fortitude of martyrs than there would be to honor the flames which kindle their faggots. Is it therefore any impeachment of God that he chose not to reign over an empire of chemicals?

“Virtue in its concrete order is possible only in those spheres in which it is possible to be vicious. Man can be a saint only in a world in which it is possible to be a devil.

~Through the Year with Fulton Sheen, Servant Books, 1985 pp 110-111.

Libertarians understand that freedom is a double-edged sword. The dilemma is that freedom is indispensable and yet opens the door to all kinds of evil. Freedom enabled Satan to rebel against God. Adam and Eve in the garden abused their freedom and brought death into the world. The same freedom is granted to each of us. Since the beginning, God has decreed our freedom, all the while knowing the danger–and seeing the suffering to come–decided that the game is worth the candle. See “Why God is more libertarian than we are.

Thomas Aquinas & libertarians on victimless crimes

Catholic libertarianLibertarians agree that no one should be permitted to commit violence against others, but we may use necessary force to protect persons and property. The protection of persons or property is a legitimate act, whether done by individuals or by the community. Libertarians agree: we must keep the peace.

We do question, however, the use of force against anyone who has not threatened or harmed another. Saint Thomas Aquinas recognized a distinction between acts that harm others and those are commonly referred to as vices or “victimless” crimes. He wrote:

[H]uman laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

St. Thomas argued the wisdom of such a live-and-let-live philosophy, and acknowledged that to go further would cause more harm than good. See more here. It is a good rule, but the modern world knows no such limits when it comes to the one institution which claims a monopoly on the right to initiate violence against others. That institution is the state.

The Church and Government

Once upon a time, the ancient Israelites were lead by the “judges.” The judges did not have many duties. They led the army in times of war and people came to them to settle disputes. The nations around Israel had kings, so the Israelites begged for a king. God explained how bad life would be under a king. They said “We don’t care. Give us a king,” So God gave them a king. And that king was pretty bad. Most of their later kings were even worse. It seemed that people were not ready to give up bossing and being bossed around.

The Church has lived with the state since Roman times. Christian teachings often mention the state, urging it to justice. But the Church does not demand particular solutions to societal and economic problems. Neither does the Church proclaim any particular form of governance, but only that it provide for the common good, i.e peace and security, protection of individual rights and the general prosperity of society. See “Does the Bible approve of violent government?”

The role of the State: both the real and the ideal

When the Church does suggest solutions to problems, the state will often figure prominently in those solutions. The Church can hardly do otherwise considering that the state is everywhere. Today, it is more massive and controlling than anytime in history. Even so, the Church’s social encyclicals are not shy in confronting the state where it encroaches on human rights, especially in its teachings on subsidiarity (the principle that governance should always be at the lowest possible level of society).

Even recognizing limits to state power, the encyclicals also charge the state with a responsibility to promote social justice and protect people’s rights. This is no more or less than the protection of the common good. At times the social encyclicals suggest certain initiatives by the state which–putting it mildly–seem beyond the competency of the state. Proposals to regulate voluntary and honest economic activity come to mind.

Certainly the state fulfills a just purpose when it protects us from those who would harm us. It only makes sense that when someone is hitting me over the head, I could use the help of someone who also specializes in hitting people. The state–whose only tool is violence–may have the resources to solve my problem. The trouble is, when we ask the state to do more than keep the peace and protect fundamental rights, we ask too much. This is because only a wise state, one with integrity and perfect knowledge could fulfill such a mandate as the Church urges upon it. That state has never existed.

Instead, we have governments run by the most corrupt of men, the best of which are thieves and the worst, tyrants. They wage unjust war almost continuously and use it to expand their powers. Violence is the essence of the state. See more here.

The Question: Should we have a preferential option for non-violence?

The Catholic libertarian asks this question of his fellow Catholics: When the community has a problem to solve or has a worthy goal to reach, would you be willing find a voluntary solution in place of a coercive solution? Would the Church object to this “preferential option” for non-violence? Many Catholics call on governments–when dealing with other governments–to find peaceful solutions, using violence only as last resort. If non-violence is preferable in dealing with nations, even hostile nations, how much more should coercion be avoided in dealing with our own neighbors here at home.

As Catholic libertarians, we propose voluntary, non-coercive solutions. We will argue that charity, mutual aid and lifting barriers to honest work are better solutions to poverty than the welfare state. We are going to suggest that drug abuse is a social problem, a mental health and spiritual problem, but not a criminal one. We will contend that any armed forces must be limited to self-defense, rather than messing around in other countries’ business, replacing strongman dictators with jihadist leaders.

As a moral issue, no Catholic–no Christian of any stripe, for that matter–should choose violence when a voluntary solution is available. This does not makes us libertines, nor make us selfish individualists. We do not dissent from the doctrines or moral teachings of the Church. We are pro-life. We see Christ in our brother and we accept this personal challenge from the letter of St. James:

If a brother or sister is ill-clad and in lack of daily food, and one of you says to them, ‘Go in peace, be warmed and filled,’ without giving them the things needed for the body, what does it profit?

Those are marching orders for every Christian, but the modern state makes it easy to ignore our personal duty, and so we dismiss the needy saying: “Go to the government, be warmed and filled.”

What remains of “love your neighbor” in that?

Catholic libertarians favor a genuine charity that springs from love instead of coercion. Such charity puts the whole golden rule into action. First, as a guide to what we ought to do for our neighbor; and then as a caution as to what we must not do, for this is not a measure we apply to others. We apply it to ourselves.

It is time for Catholics, and every Christian, to consider libertarianism, the most just system in a fallen world and the only political philosophy that takes love for our neighbor, human dignity and free will seriously.

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Freedom Toons – Catholic and Libertarian

Seamus Coughlin is a Catholic libertarian cartoonist. Below is his video, “What Libertarians Actually Believe: Stereotypes.” For more from this talented guy, head over to his website, Freedom Toons.

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Something for my conservative Catholic friends

Anarcho-Ichthus-favSome of us Catholic libertarians come from a conservative political background. We understand the dilemma to which Catholic Republicans have become accustomed in recent decades. It seems like the choice is between electing either 1) lying Republicans who quickly disappoint or 2) lying Democrats whose very promises are an affront.

Confession1With that in mind, I invite you to check out, this article by my friend Mark Cavaliere: “Confession of a Catholic Libertarian.” Mark is the administrator of the Catholic Libertarians Facebook page.

Mark’s road will be very familiar to many. For all who are beginning to doubt whether the right guys are ever going to get control of the mess that the government has become, read Mark’s Confession and then look into liberty. Find out how Catholic it really is.

To begin exploring Catholicism and Liberty, go to Getting Started: Catholicism and libertarianism

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Freedom Feens – Why be libertarian?

microphoneFreedom Feens is a daily, liberty-related radio show with Michael W. Dean and a rotating cast of co-hosts.

Freedom Feen Hugo González and I co-hosted Thursday’s show. The 2-hour show is broadcast live at LRN.FM weeknights at Midnight Central time and at noon on weekends.

Show notes for 06/11/2015:

Occupational licencing — Porcfest 2015 — Do libertarians approve of vices?  — Why people come to libertarianism — Make an AR-15 at home with Ghost Gunner

Download or listen to today’s show here:

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I will be with the Freedom Feens broadcasting live from the Porcupine Freedom Festival in Lancaster, N.H. during the week of July 21-27, 2015, beginning at midnight Sunday night (CST).

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