| Mo. | Oct 15, 1865
delivered the opinion of the court.
The appellant stands convicted under sections three, six, nine and fourteen of the second article of the Constitution of this State. The ninth section, inter alia, declares that no person shall “ be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages,” unless such person shall have first “ taken, subscribed and filed” the oath specified in section six.
It is contended that that pari^ of the Constitution requiring the persons above enumerated to take, subscribe, and file said oath before they are permitted to pursue their avocations or callings, is in contravention of Article I., sec. 10, of the Constitution of the United States, which prohibits the States from passing “ any bill of attainder, ex post facto law, or laws impairing the obligation of contracts,” and is, therefore, inoperative and void.
Bills of attainder are said to be such acts of the Legislature as inflict capital punishment upon persons supposed to be guilty of high crimes and offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If they inflict a milder punishment than death, they are called bills of pains and penalties. Bills of attainder may include bills of pains and penalties, and they
When, therefore, it is apparent that laws are clothed with these characteristics, and are in conflict with the supreme law of the land — the Federal Constitution — courts will unhesitatingly declare them invalid and of no effect.
'The question, then is : Is the provision in the State Constitution referred to, justly obnoxious to these objections ? It does not come within the legal meaning and sense of a bill of attainder; for, as we have seen above, that is an act
The clause in the Constitution here in controversy, confiscates no estates, declares no forfeitures, nor does it inflict any pains and penalties. In fact, it passes judicially, on nothing. It imposes certain prescribed acts, as prerequisites to doing certain things, and for failure to comply with these acts, or violating the law as it exists, the party is held amenable. It does not, therefore,' come within the meaning, scope or reasoning of a bill of attainder, nor of pains' and penalties.
But it is said that the law is ex post facto in' its operations. We will briefly examine and see whether it has any of the attributes properly belonging to laws of this description. The term ex post facto has application to civil laws of a criminal nature. (2 Sto. on Const., § 1345; Watson v. Mercer, 8 Pet. 110; Calder v. Bull, 3 Dal. 386; Carpenter v. Commonwealth, 17 How. 456" court="SCOTUS" date_filed="1855-02-13" href="https://app.midpage.ai/document/carpenter-v-commonwealth-of-pennsylvania-86945?utm_source=webapp" opinion_id="86945">17 How. 456.) It seems clear that the oath prescribed in the Constitution was adopted, not with a view to punishment for any past offence, but for future protection. The preventive provision, embodied in the fourteenth section, is not retroactive, but wholly prospective'. It is not easy to perceive how, or in what manner, it attempts to subject to criminal punishment any person guilty of any of the offénces mentioned in the third section. It is true certain qualifications are affixed as conditions on which certain designated classes shall engage in some kind of professions and callings. It is declared that no person shall be permitted “to teach, preach,” &c., without first having taken an oath; and that any one who shall persist in exercising
Clearly, he who refuses to take the oath, and still continues to pursue a calling, where the taking thereof is a prerequisite, or sine qua non to render it lawful, violates an existing law. He is not held liable for any acts supposed to have been done or committed antecedently, but for violating an actual subsisting law after its enactment. The distinction between what is legally meant by punishment, and the disability which may incidentally attach, is clear and obvious. It will not be seriously denied, that the State has the right to impose restrictions and conditions on her citizens in the exercise of their callings or professions, as a municipal regulation, provided it is deemed necessary to the public good, and does not deprive them of any natural right; and whether the exigencies of the times demand such enactments, the law-making power is the proper and appropriate judge.
But it is contended that the provisions requiring clergymen to take, subscribe and file an oath, is inconsistent with the fundamental principles of free government, as declared by sections 1, 8, 9,11, 18, and 27, of the bill of rights. So much of the above sections as apply to the case here, are—
“ Section 1. That we hold it to be self-evident that all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
“Sec. 8. That no person can, on account of color, &e., * * * be restricted in the exercise of religious worship, or be hindered in acquiring education; or be subjected in law to any other restraints or disqualifications in regard to any personal rights, than such as are laid upon others under like circumstances.
“ Sec. 9. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. That no person can, on account of his religious opinions, be rendered ineligible to any office of
“ Sec. 11. That in all criminal prosecutions, the accused has the right to be heard by himself and his counsel, &c.
“ Sec. 27. That the free communication of thoughts and opinions is one of the invaluable rights of man; and that every person may freely speak, write, and print, on any subject,. being responsible for the abuse of that liberty.”
An analysis of these sections will not justify the conclusions arrived at by appellant’s counsel. We do not see that any one is forbidden to enjoy the fruits of his labor, but in doing so he must conform to the law ; the State asserts her superior control over all her citizens. The third section is not authority for the doctrine contended for; by its plain import, it was simply intended to place persons of color on an equal footing with all others in regard to their religious rights — nothing more and nothing else. Nor can it be said that, by section nine, freedom of worship is destroyed. The conscience is left perfectly free in the enjoyment of its natural rights of independent, religious action. Whilst there may be a restraint to officiating as a clergyman upon a failure to comply with the law, there is no clog or fetter on the freedom of the mind or conscience. There is no intermeddling with the natural and indefeasible right to worship God according to the dictates of the conscience; none are compelled to erect or support any place of worship, nor to attend any particular church against their consent.
The Legislature of Pennsylvania passed a law prohibiting any person to “ do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sun
“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent. No human authority can, in any case whatever, control or interfere with the rights of con-^ science; and no preference shall ever be given.-,by law to any religious establishment or modes of worship.”
Yet the Supreme Court of that State, on several occasions, have held the law to be constitutional, and no interference with conscience or infringement of natural and indefeasible right. ■
• In the last case, Specht v. The Commonwealth, (8 Barr, 322,) the court says: “ The Constitution of this State secures freedom of conscience and equality of religious rights. No man living under the protection of our institutions can be coerced to profess any form of religious belief, or to practise any peculiar mode of worship in preference to another.” In this respect, the Christian, the Jew, the Mahommetan,-and the Pagan, are alike entitled to protection; nay, the Infidel, who madly rejects all belief in a Divine Essence, may safely do so in reference to civil punishment, so long as he refrains from the wanton ánd malicious proclamation of his opinions with intent to outrage the moral and religious convictions of a community, the vast majority of whom are Christians ; but beyond this, conscientious doctrines can claim no immunity from the operation of general laws made for the government, and to promote the welfare of the whole people.” In the language of Chief Justice Gibson, “ the right of conscience,
But it is not necessary to pursue this subject further ; even if an apparent inconsistency existed, we would not be warranted in declaring this part of the Constitution void. All of the different parts compose one instrument, which constitutes our organic law. The presumption is, that each and every part was intended to be so restrained and construed as to give effect to the whole. This is according to the well known rules of construction. It is a well established principle of law, that courts are not at liberty to declare an act of the Legislature unconstitutional and void, unless its repugnancy is clear and manifest. Respect for a co-ordinate branch of the government, the presumption that they have not transcended their powers or passed beyond the bounds of their, legitimate sphere, invoke every intendment in behalf of their action. Every doubt is to be thrown in favor of the law. This is the rule in favor of ordinary enactments. (Adams v. Howe, 14 Mass. 345 ; Ex parte McCollom, 1 Cow. 564 ; Morris v. The People, 3 Denio, 381" court="None" date_filed="1846-12-15" href="https://app.midpage.ai/document/morris-v-people-6142348?utm_source=webapp" opinion_id="6142348">3 Denio, 381.) Now constitutional ordinances are high above mere legislative acts. (Butler v. Pennsylvania, 10 How. 415.)
It has been said by an eminent judge, when speaking of the subject of constitutional construction and of the powers of Conventions, “ It was competent to deal — subject to satisfaction by the people, and to the Constitution of the Federal Government — with all private and social rights, and with all.
But a direct appeal has been made to us to decide against the particular provisions in the Constitution under consideration, because they are contrary to justice and the fundamental principles of our institutions. With their justice or injustice, policy or impolicy, we have nothing to do. It is not for the judiciary to inquire ^whether laws violate the general principles of liberty or natural justice, or whether they are wise and expedient or not. They can only declare whether they are repugnant to constitutional provisions and limitations. It would be a violation of well established and safe principles for courts to resort to any other test. There is no higher law by which we can be governed. An attempt by judicial construction to obstruct a law, or a failure to enforce it, would be monstrous usurpation. We cannot make or repeal a law; we are not entrusted with any such power. If it is wrong, unjust or oppressive, an appeal must be made to the people in their political capacity at the polls, to apply the remedy. We will not attempt to exercise judicial legislation. We can scarcely conceive of any thing that would be a compensation for introducing into our jurisprudence such a pernicious doctrine.
The most odious and dangerous of all laws would be those depending on the discretion of judges. Lord Camden, one of the greatest and purest of English judges, said, “ that the
The judgment is affirmed.