Part 28 (2/2)

and a-votin' of the Deh onto forty year, and I never seed the name of old Horace Greeley on a Democrat ticket before; but it's _on thar,_ brethren, and we'll vote it through if it kills us--_and it does co the most of us!”_

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 ree 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 ti 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 forht, when the sad consequences of civil ere 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 Supre in violation of the Federal Constitution One of the thirty distinct affirmations or tests of the Drake Constitution was to the effect that, if anythe Gospel, or of sole 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 periodIt allows no distinction between acts springing fronant enmity, and acts which may have been prompted by charity, or affection, or relationshi+p

The clauses in question subvert the presumption of innocence, and alter the rules of evidence which heretofore, under the universally recognized principles of the coeable They assuuilty; 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 foratory oath into the consciences of the parties” And then, as preli imprisonment, the court concluded its opinion with a pertinent question fros of Alexander Haalforfeitures, one that is unknown to the Constitution, and repugnant to the genius of our law”

[Footnote: Fourth Wallace Reports]

During the period extending fro aside of some of its obnoxious provisions as heretofore e 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 coeneration, and, unabashed by the clash of arms, still served sturdily on his wonted way The rife spirit that boded destruction to ancient landhts were to hi the periodin one of the border counties of his circuit, he was greatly astonished, at the opening of his court upon a certain , to find half a dozen ministers of the Gospel, all of ere personally known to hily 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 cri 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 lifetie, Mr Prosecutor,” observed the judge, as with apparent fierceness his eyes were fixed upon the offender ”This prisoner cannot be perainst the enforcement of this salutary provision of our most excellent Constitution He must be punished, sir, healoud the penalty imposed for the commission of the offence mentioned, and with pen in hand as if about to ain 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 affiriven

”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 reence, 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 ressive, and with tones the counterpart of the humblest that ever came from an Amen corner, the reply was,

”I a the prisoner keenly, and with a one before seemed indifference itself, his Honor, with apparent difficulty, at length ejaculated: