Something of Men I Have Known / With Some Papers of a General Nature, Political, Historical, and Retrospective

by Adlai E. Stevenson

XXVII NOT GUILTY OF PREACHING THE GOSPEL

THE "DRAKE CONSTITUTION" IN MISSOURI—THE CRIME OF PREACHING THE GOSPEL—A PROVISION OF THIS CONSTITUTION FOUND TO BE A VIOLATION OF THE CONSTITUTION OF THE UNITED STATES—MINISTERS OF VARIOUS SECTS TRIED FOR PREACHING WITHOUT FIRST TAKING AN OATH TO SUPPORT THE "DRAKE CONSTITUTION"—THE JUDGE FINDS THAT NOT ONE OF THEM HAS PREACHED THE GOSPEL.

The "holding" of a nisi prius judge upon one of the western circuits of Missouri, near the close of the Civil War, is without a precedent, and it is quite probable that no occasion will ever arise for citing it as an authority. It will remain, however, a case in point of how a "horse-sense" judge can protect the innocent against unusual and unjust prosecution.

What is known in Missouri history as the "Drake Constitution" had then but recently supplanted the organic law under which the State had for a long time had its being. No counterpart of the Constitution mentioned has ever been framed in any of the American States. It could have been only the product of the evil days when "judgment had fled to brutish beasts, and men had lost their reason." Possibly at no time or place in our history has there been more emphatic verification of the axiom, "In the midst of arms, the laws are silent."

The "Drake Constitution" was formulated at a time when fierce passion was at its height, when the sad consequences of civil war were felt at every fireside, when neighbor was arrayed against neighbor, the hand of brother uplifted against brother, and "a man's foes were they of his own household." As is well known, certain provisions of this Constitution were, at a later day—upon a writ of error—set aside by the Supreme Court of the United States as being in violation of the Federal Constitution. One of the thirty distinct affirmations or tests of the Drake Constitution was to the effect that, if any minister or priest should be guilty of the crime of preaching the Gospel, or of solemnizing the rite of marriage, without first having taken an oath to support said Constitution, he should, upon conviction, be subjected to a fine of not less than five hundred dollars, imprisonment for six months in the common jail, or both.

Under the provision indicated, a Catholic priest was convicted in one of the circuit courts of Missouri, and duly sentenced to fine and imprisonment. Upon his appeal, the Supreme Court of the United States reversed the decision of the lower court, and virtually abrogated the provision of the Constitution under which the accused had been convicted. The great court of last resort decided the test oath, imposed as above mentioned, to be a violation of that provision of the Constitution of the United States which declares, "No State shall pass any bill of attainder, or ex post facto law." It held a bill of attainder to be "a legislative act which inflicts punishment without a judicial trial"; and an ex post facto law "one which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." The court said: "The oath thus required is, for its severity, without any precedent that we can discover. In the first place, it is retrospective; it embraces all the past from this day; and if taken years hence, it will also cover all the intervening period. . . . It allows no distinction between acts springing from malignant enmity, and acts which may have been prompted by charity, or affection, or relationship. . . . The clauses in question subvert the presumption of innocence, and alter the rules of evidence which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable. They assume that the parties are guilty; they call upon the parties to establish their innocence; and declare that such innocence can only be shown in one way—by an inquisition in the form of an expurgatory oath into the consciences of the parties." And then, as preliminary to the discharge of the priest from long imprisonment, the court concluded its opinion with a pertinent question from the writings of Alexander Hamilton: "It substitutes for the established and legal mode of investigating crimes and inflicting forfeitures, one that is unknown to the Constitution, and repugnant to the genius of our law."*

[*Footnote: Fourth Wallace Reports.]

During the period extending from the promulgation of the Drake Constitution to the setting aside of some of its obnoxious provisions as heretofore mentioned, an old-time judge still held court on one of the Missouri circuits. He had somehow been overlooked in the political upheaval to which the State had been subjected. He had come down from a former generation, and, unabashed by the clash of arms, still served sturdily on his wonted way. The rife spirit that boded destruction to ancient landmarks had passed him by; Magna Charta and the Bill of Rights were to him abiding verities.

Now it so fell out that during the period mentioned, while presiding in one of the border counties of his circuit, he was greatly astonished, at the opening of his court upon a certain morning, to find half a dozen ministers of the Gospel, all of whom were personally known to him, snugly seated in the prisoners' box.

With characteristic brusqueness, the judge at once demanded of the attorney for the Commonwealth why these men were under arrest. The not unexpected reply was, that they had been indicted for preaching without first taking an oath to support the Constitution of the State of Missouri.

"Ah, Mr. Prosecutor, a very serious offence, a very serious offence indeed. The makers of our fundamental law have wisely provided that no man shall be permitted to preach the Gospel until he has first taken an oath to support the Constitution of the State of Missouri. It is the duty of this court to see to it that this wholesome provision of our Constitution is duly enforced."

Addressing himself now to the prisoner nearest him, His Honor inquired: "Is it possible, sir, that you have been guilty of the crime of preaching the Gospel without having first taken an oath to support the Constitution of the State of Missouri?" The prisoner, a tall, venerable-appearing gentleman, in typical black, quietly replied that he could not conscientiously take the required oath, but had only continued in the pastoral work in which he had been for a lifetime engaged.

"A mere subterfuge, a mere subterfuge, Mr. Prosecutor," observed the judge, as with apparent fierceness his eyes were fixed upon the offender. "This prisoner cannot be permitted, sir, to interpose his conscience as a barrier against the enforcement of this salutary provision of our most excellent Constitution. He must be punished, sir, he must be punished."

After reading aloud the penalty imposed for the commission of the offence mentioned, and with pen in hand as if about to make the appropriate entry upon the docket, His Honor again turned to the prisoner and inquired:

"Of what church are you a minister?" The steady reply, as of one prepared for the worst, was,

"I am a Presbyterian, Your Honor."

"Presbyterian! Presbyterian!" quickly observed the sage interpreter of the law. "Oh, you preach the tenets and doctrines of the Presbyterian Church, do you?" An affirmative reply was modestly given.

"You preach," continued His Honor in apparent amazement, "the doctrine of infant baptism, and of the final perseverance of the saints, do you?" An answer like the last being given, the judge remarked:

"You appear to be a man of intelligence, but don't you know, sir, that that isn't the Gospel? He has not been guilty of preaching the Gospel, Mr. Prosecutor, and will have to be discharged. You can go, sir, but if this court ever hears that you have been actually guilty of preaching the Gospel, you will be punished to the full extent of the law."

Addressing himself now to the comparatively youthful occupant of the lately vacated seat, His Honor inquired:

"What is your church, sir?"

In a manner by no means aggressive, and with tones the counterpart of the humblest that ever came from an Amen corner, the reply was,

"I am a Methodist, may it please the Court."

Eying the prisoner keenly, and with a manner expressive of surprise to which all that had gone before seemed indifference itself, his Honor, with apparent difficulty, at length ejaculated:

"A Methodist, a Methodist, Mr. Prosecutor. Oh, you preach the doctrine of the Methodist Church, do you?—infant baptism, and falling from grace?" To these hurried interrogatories, an affirmative was meekly but distinctly given.

"Well, don't you know that that isn't the Gospel? He is not guilty of preaching the Gospel, Mr. Prosecutor, and will have to be discharged. You can go, sir, but if this Court ever learns that you have been really guilty of preaching the Gospel without first taking an oath to support the Constitution of the State of Missouri, you will have to be punished, sir; the Court will see that there is no evasion of this salutary provision of our most excellent Constitution. Go, sir."

A clean-shaven, benevolent-looking gentleman of middle age was next in evidence. He had but recently assumed his present pastorate and was a deeply interested and attentive observer of all that was happening. In reply to the inquiry from the bench, he answered that he was a Universalist.

"A Universalist!" replied the judge, almost astounded beyond the power of expression. Recovering himself, he at length inquired:

"You preach the doctrine of universal salvation, do you?"

A slight bow indicated such to be the fact.

"You preach," continued his Honor, with warmth well suited to the subject-matter, "that there is no hell?"

A bow, much more emphatic, was unmistakable evidence that its author was a man who had the courage of his convictions.

"He doesn't believe that there is any hell, Mr. Prosecutor," thundered the judge, "he will have to be discharged; it is no violation of the Constitution of the State of Missouri to preach such infernal nonsense as that."

The official admonition, "Depart, sir," was promptly obeyed, and the apostle of the broad highway followed quickly in the wake of the aforementioned disciples of Calvin and Wesley, in the "narrow path" which led straightway out of the crowded court-room.

In rapid succession the two remaining prisoners on the front bench were questioned, and each in turn found "not guilty" of preaching the Gospel. An avowal of his belief in the tenet of "the Apostolic succession" instantly resulted in the acquittal of the first, while the second was with equal promptness found "not guilty" upon his admission that he preached the doctrine of "regeneration by ——" There was much confusion in the court-room at this moment, and the reporter failed to catch the concluding words of the confession. Finding himself, moreover, getting into deep water, he thoughtfully left on record that both the Episcopalian and the Christian pastor left the court-room with the admonition ringing in their ears, that if they were ever actually found guilty of preaching the Gospel they should be duly punished.

A lone prisoner remained in the dock. The days of the years of his pilgrimage were not few, and quite probably, except in a figurative sense, not evil. He was of sturdy build, quiet manners, and his countenance was indicative of great sincerity. In a voice extremely deferential he stated that he had once ministered to a dying Confederate, and it was impossible for him to take the required oath that he had never expressed any sympathy for any person who had ever been engaged in the Rebellion.

"Of what church are you a minister?" interrupted the judge.

"The Baptist Church," was the answer.

"The Baptist Church," instantly repeated the judge, and looking very earnestly at the accused, he asked;

"Do you preach the doctrines of the Baptist Church?"

An affirmative answer having been given, His Honor said:

"Upon his own confession he is guilty, Mr. Prosecutor: the Court holds the Baptist to be the true church, and this defendant has been guilty of preaching the Gospel without first taking the oath to support the Constitution of the State of Missouri. He will have to be punished."

Addressing the prisoner, he said: "You will have to be punished, sir; this Court can permit no excuse or evasion."

The graveyard stillness that now fell upon the little assemblage was at length broken by His Honor reading aloud the prescribed punishment for preaching the Gospel without first having taken the required oath.

"Yes, a fine of five hundred dollars or six months in the common jail, or both. A clear case, Mr. Prosecutor, this prisoner must be made an example of; hand me the docket, Mr. Clerk. Yes, the full penalty."

Then, before making the fatal entry, suddenly turning to the prisoner, he demanded:

"How long have you been preaching the Gospel?"

In hardly audible accents, the answer tremblingly given was,

"I have been trying to preach the Gospel ——"

"Only trying to preach the Gospel, only trying to preach the Gospel!" exclaimed the judge. "There is no law, Mr. Prosecutor, against merely trying to preach the Gospel. You can go, sir; but if this Court ever hears that you have succeeded in actually preaching the Gospel, you will be punished, sir!"