Editor’s note: Sept. 3 marks the anniversary of the Father John Cummings case in Louisiana, Mo. Following is the second story in a three-part series by Louisiana historian Brent Engel.
A Pike County clergyman was jailed for daring to speak without an OK from the government.
That was the claim made by defenders of Father John A. Cummings, a Louisiana priest arrested for refusing to take the loyalty oath narrowly passed by Missouri lawmakers and approved by voters as part of a new state constitution in the wake of the Civil War.
The case was “the first one to test the application of the” disputed avowal, wrote The Rev. William M. Leftwich in “Martyrdom in Missouri.”
The difference between Missouri’s loyalty oath and those already codified was that it targeted people who were not part of the government, the military or the courts — the traditional places where such pledges were allowed. It featured 86 acts for which people could be convicted of “disloyalty.”
The deadline to take the vow was Sept. 2, 1865. The next day, Cummings said Mass at St. Joseph Catholic Church on North Third Street in Louisiana.
“Curiously, he may well have taken the unadorned loyalty oath that had been prescribed by the 1861 (constitutional) convention for preachers, teachers and officials, and that had been substantially replicated in federal law,” author Gerald T. Dunne wrote in “The Missouri Supreme Court: From Dred Scott to Nancy Cruzan.” “The thought control effort of the 1865 convention was something else again, and here Cummings obviously drew the line.”
So did Pike County authorities. A grand jury in Bowling Green — made up of men who had recited the oath — took 20 minutes to indict Cummings on Sept. 4.
‘What are you put in for?’
Pike County Sheriff William Penix arrested Cummings and put him in the “felon’s cell” at the jail in Bowling Green.
An account in Leftwich’s book provides an unconfirmed glimpse of what may have happened next.
“Said one of the felons to the priest as he entered the cell, ‘What are you put in here for?’” the account reads. “‘For preaching the gospel,’ replied the priest. ‘Good,’ said the man. ‘I am in here for stealing horses.’”
Two burglary suspects and an accused rapist also occupied the cell. Public reaction was swift, as “men and women crowded around the jail” to catch a glimpse of the rebel priest, Leftwich said. One anonymous writer to the Missouri Republican found it difficult to believe that such incredulous events “occur in the most sacred places and under the most solemn circumstances — the temple of worship, the halls of legislation, and the Courts of Justice.”
Cummings’ detractors were just as adamant. The Bethany Times newspaper said the “hottest corner of hell (was) awaiting such preachers.”
At a court appearance Sept. 8, a defiant Cummings refused to enter a plea and spoke only long enough to recite the Apostles’ Creed, a reaffirmation of faith in the divinity of God and Jesus Christ.
Cummings refused bail and was set for trial Sept. 9 before Circuit Judge Thomas James Clark Fagg, who also was from Louisiana.
The priest confessed his guilt, but criticized the law as an unjust violation of religious freedom. Before Fagg could hand down a sentence, Missouri U.S. Senator and Louisiana lawyer John Brooks Henderson stood.
Henderson was in court on other business, but told Fagg that Cummings’ statement had “really amounted to a plea of not guilty since he had claimed, in effect, that the law imposing the test oath was invalid,” The Rev. Donald Rau wrote in “Three Cheers for Father Cummings” and published in “The Journal of Supreme Court History.”
Thanks to Henderson’s intervention, Fagg allowed Cummings to change his plea to not guilty. The priest turned down Henderson’s offer to provide legal representation after the senator “castigated Father Cummings for his claim that the oath was an infringement of religious liberty,” Rau said.
Instead, another attorney who happened to be in the courtroom spoke up.
Robert Alexander Campbell was a Bowling Green native, the son of a Presbyterian minister and a Union war veteran. He had attended the same college in Illinois as Fagg and been secretary of the 1861 state constitutional convention.
Campbell described the prosecution of Cummings as a “powerful and bitter persecution of the weakest victim to be found,” Dunne wrote.
At a bench trial the next day, Fagg found Cummings guilty and fined him the state-mandated $500 — more than $7,300 today. The priest refused to pay, and would not let anyone else provide the money. So, Fagg sent him back to jail.
“If Father Cummings wished to generate publicity for the plight of clergymen in Missouri under the new Constitution, he succeeded admirably,” Rau noted.
“Walking about the streets of Bowling Green or giving bond and returning to Louisiana was not martyrdom,” added Thomas S. Barclay in the April 1924 edition of The Missouri Historical Review. “But to languish in jail … served to give the oath of loyalty a widespread, and, in many respects, a notorious publicity.”
The conviction was appealed to the Missouri Supreme Court and heard in October 1865.
Two of the justices were from Northeast Missouri – Chief David Wagner, of Lewis County, and Walter Lovelace from Montgomery County. Nathaniel Holmes was from St. Louis.
The three had taken the oath after being appointed in the wake of the new state constitution. All eyes turned to St. Louis, where arguments were made.
“When the news of the Cummings case spread over the state, it provided widespread discussion, and the public mind was filled with the deepest interest,” Barclay wrote. “The details were placed before the people with all the embellishments that the newspapers were able to add, and the remote regions of the state soon became familiar with the particulars.”
Campbell listed eight points as to why his client was innocent. He mainly argued Cummings’ right to freedom of religion had been violated and that the oath was an “ex post facto” law which criminalized acts that were not against the law when performed.
Cummings’ other attorney, Charles C. Whittelsey, said the vow conflicted with other parts of the Missouri Constitution. He also said rights that are considered “inalienable” could not be taken away by government.
Whittelsey proposed that freedom of religion was more than just a guarantee to worship as one pleased. It also meant that if clergy were required to be state-approved, congregations would not be “free to worship according to the dictates of their own consciences” but captives of “those who happened to have the majority of votes.”
The justices were not swayed, sustaining Fagg’s ruling in Pike County.
“The court concluded the oath clause merely required professionals to affirm they were not guilty of treason or disloyalty; if they were guilty of either, it was reasonable to conclude that allowing them to practice public professions and vote was not in the public interest,” author Joseph A. Ranney wrote for “In the Wake of Slavery: Civil War, Civil Rights and the Reconstruction of Southern Law.”
Cummings’ boss, St. Louis Archbishop, the Most Rev. Peter Richard Kenrick, kept his promise to stand by the priest.
Kenrick also called in some powerful legal help that had big time connections at the next stop in the appeal — the U.S. Supreme Court.
Next time: A case for the ages.