great difficulty able to read off, after a fashion, one favorite hymn at which his book always opened at the opportune moment. One Sunday morning, just before the beginning of the services, some mischievous boys, not having the fear of the Lord before their eyes, got hold of the book and pasted 'Old Grimes' over the favorite hymn. At the auspicious moment the book opened at the accustomed place, and the old preacher, after properly adjusting his glasses, slowly began: 'Old Grimes is dead, that good old man.' Amazed beyond description, the preacher instantly suspended the reading, carefully wiped off his glasses, looked appealingly to the congregation, and again solemnly and slowly began: 'Old Grimes is dead, that good old man.' The congregation now equally astounded with himself, the aged pastor suspended the reading, carefully removed his glasses, and laying down the book, solemnly observed: 'My beloved friends, I have been a-readin' and a-singin' outen this blessed book for nigh onto forty year, and I never seed this hymn in thar before; but it's in thar, brethren, and we 'll sing it through if it smashes up this meetin'!'

"Now," continued Vance, "my beloved brethren, I have been a-readin' and a-votin' of the Democrat ticket nigh 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 come devilish near killing 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.

TH

HE "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 strife 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 presumptions 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 be shown only 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 concludes its opinion with a pertinent quotation 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."*

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 moved sturdily on in 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 *Fourth Wallace Reports.

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 is n'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