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

Freedom Feens – Doing Civil Disobedience

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

Ben Stone (the Bad Quaker) and I co-hosted Sunday’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 07/19/2015:

The Outlines of Civil Disobedience — The Limits of Civil Obedience — Breaking the Seal of the Confessional  —  PorcFest South?

Civil Disobedience

Download or listen to today’s show here:

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Or visit Freedom Feens

When St. Paul Tweaked the Emperor’s Nose

Christian statists like to drag out St. Paul’s epistle to the Romans to demonstrate that disobedience to government is not an option:

st paul“Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment.

For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain.”  Rom. 13:1-4

Some laws must be disobeyed

Long recognized, however, are certain exceptions to this “always obey the government” rule. While St. Paul here equates obedience with “doing what is good,” no one argues that governments have ever confined their conduct to what is good. We find the famous standoff recorded in the Acts of the Apostles where St. Peter and the apostles defy the rulers saying: “We must obey God rather than men.” Acts 5:29. Numerous other approving recitations of civil disobedience occur in both the Old and New Testaments.

Some must always (and everywhere) be obeyed

So first of all, we must disobey some laws, but even the government gets many laws right. This second sort of law are those that seek to prevent or correct harm to others; such prohibitions would have to be obeyed in any society.

Unjust Nanny-state Laws

Finally, alongside the protective laws (which must be obeyed) and the laws which command us to do evil (which must be disobeyed) we still have that great morass of laws designed either 1) to steal from us; or 2) punish us unless we conduct our own lives according to the ruler’s demands.

It may well be wise to obey this third sort of law (if only out of self-defense), but as to any Christian moral obligation to obey, a closer look at St Paul’s epistle to the Romans suggests another layer to the analysis and raises the question as what duty—if any—is owed to the authorities:

For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay all of them their dues, taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due. Rom.13:6-7.

How much honor is due?

The rulers might read this passage as satisfying homage, but the subversive undercurrent of this verse is barely beneath the surface for any objective reader. Indeed, justice might cry out that no taxes are due; that the bloody hands of the ruler merit no respect; and his thefts deserve not honor but punishment. Only a fool feels honored at having been wished “all the respect he is due.” St. Paul’s words are reminiscent of Bilbo’s speech at his birthday party:

I don’t know half of you half as well as I should like; and I like less than half of you half as well as you deserve.

~ J.R.R. Tolkien, The Lord of the Rings.

It’s hard to make out whether he is insulting or paying a compliment.

As with so much of scripture, the writings of St. Paul are rich with multiple levels of meaning. It turns out that the stern apostle possessed a perilous sense of humor, quite capable of lampooning the king.

Nero runs his race

In the year 66 A.D., the Emperor Nero left Rome to compete in the Olympic games and make a concert tour of Greece. At Olympia, he competed in the four-horse chariot race. The historian Suetonius, in The Twelve Caesars, reported that Nero drove his chariot with at least 10 horses. The emperor was thrown from his chariot during the race and had to be picked up and put back at the reins.

The emperor was unable to remain in his seat and gave up the race before the finish. Since he was the emperor, the judges crowned him the winner anyway. Nero generously declared the whole province a free country and gave the judges large sums of money.

This humiliation would have been fresh news when the buffoonish emperor returned to Rome and soon afterward had the apostle Paul beheaded. Could there be a connection between Nero’s race and a letter St Paul penned from a prison cell in Rome? The apostle wrote this in his last letter to his young friend Timothy,:

An athlete is not crowned unless he competes according to the rules. . . . [T]he time of my departure has come. I have fought the good fight, I have finished the race, I have kept the faith. Henceforth there is laid up for me the crown of righteousness, which the Lord, the righteous judge, will award to me on that Day.  2 Tim. 2:5, 4:6-8.

Nero the athlete had also competed, but he never finished the race. Nero did not compete according to the rules, yet was awarded the crown. Can there be any doubt that St Paul combined his bittersweet farewell to Timothy with a joke at Nero’s expense? If Nero was due respect simply for being the emperor–as Romans 13 is so often read–then St. Paul failed to follow his own rule. It is something to ponder when we consider one’s duty to any ruler or government.

disobedience700

Read the related post: “Does the Bible Approve of Violent Government” here.

Does the Bible approve of violent government?

Those who insist that the Bible approves of violent government as the God-mandated institution by which men must order society can cite numerous scripture passages to support that thesis. There is, for example, St. Paul’s epistle to the Romans:

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment. Rom. 13:1-2.

Elsewhere, St. Paul writes: “Remind them to be submissive to rulers and authorities.” Titus 3:1. Some would say that Christians are here instructed to obey authority, without exception, but other scriptures make it obvious that there is more to the story.

In Acts 5:29, we see the apostles defying the their rulers saying: “We must obey God rather than men.” Later, St. Augustine adds: “An unjust law is no law at all.” On Free Choice Of The Will, Book 1, § 5. The Catechism forbids obedience to any law “contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel.” CCC 2242

Obedience to government can never be absolute. No Christian may obey a law that requires them to disobey God. No Christian may commit an inherently evil act, even for a good purpose. Rom. 3:8 and here.

They may, however, find themselves in a situation of obeying an unjust law simply because to disobey would cause more harm than to obey. Thus, I pay my taxes because going to jail would prevent my supporting my family. If any man with a gun demands that I give him money, I may question both his authority and his demand, but obedience may be the wiser, Christian course.

As to the notion that government is instituted by God, all creation is instituted by God, as well as our need for order and authority, but as the Catechism of the Catholic Church teaches, “the choice of the political regime and the appointment of rulers are left to the free decision of the citizens.” CCC 1901.

God has left the social order in human hands and mankind has made mixed bag of it. If we rejoice that men no longer offer human sacrifice or enslave their fellow men, we cannot deny that immense evils are still perpetrated by governments everywhere. We cannot lay this at God’s doorstep. He permits it, but He neither approves nor appoints such things.

In the early years after Moses died and Joshua led the Israelites into Canaan, the people were ruled by what were called the “judges.” This rule was minimal—one might say libertarian. The taxes (the tithe) were voluntary. The judges did not generally meddle in people’s lives. The main roles of the judges were to resolve disputes brought to them and to provide leadership during wartime.

Some judges did a good job, but some did not, so the people came to the prophet Samuel and said, “Give us a king to govern us like all the nations.” Samuel was displeased by this, for the Lord was their king and had given them the law of Moses and the judges. So Samuel prayed to the Lord, and the Lord told him not to worry about it: “It is not you they have rejected, but they have rejected me as their king. . . . Now listen to them; but warn them solemnly and let them know what the king who will reign over them will do.” So Samuel did as the Lord directed and said to the people:

This is what the king who will reign over you will do: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots. He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive groves and give them to his attendants. He will take a tenth of your grain and of your vintage and give it to his officials and attendants. Your menservants and maidservants and the best of your cattle and donkeys he will take for his own use. He will take a tenth of your flocks, and you yourselves will become his slaves. When that day comes, you will cry out for relief from the king you have chosen, and the LORD will not answer you in that day. 1 Sam. 8:6-18.

With Samuel, we want to shout–across three millenia–“Don’t do it!” but they did and then paid the full price they had bargained for.

The Church, the scripture and our common sense all teach us to obey the laws of coercive government as long as those laws do not command us to do evil, but that does not suggest that the institution of such government itself is not inherently evil. St. Paul’s commands to obey do not baptize the institution itself.

If we read biblical commands to obedience as commending the goodness of the institution of government, then we must also accept Ephesians 6:5, as commending the institution of slavery. Here St. Paul commands: “Slaves, be obedient to those who are your earthly masters.” He writes elsewhere: “Slaves, in all things obey those who are your masters on earth.” Col. 3:22

Such commands—in the Roman world—were wise for both spiritual and worldly reasons, but no one today uses them to justify the continuation of the institution of human slavery. Christians unanimously condemn slavery as a grave moral evil. The Catholic Church forbids the “enslavement of human beings, to their being bought, sold and exchanged like merchandise.” CCC 2414.

Ultimately, both citizens and slaves may be obliged to obey their overlords, but neither slavery, nor violent government are commanded by God. The modern state has grown monstrous in its destruction of freedom; in its thefts and murders of innocents.

When government turns aside from the only possible justification for its existence it becomes illegitimate. It exists to protect human rights, and as the Catechism teaches: “[i]f it does not respect them, authority can rely only on force or violence to obtain obedience from its subjects.” CCC 1930. Neither the initiation of force–nor any authority that relies upon it–is necessary to a just society.