It is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect.  Such oaths have never been exacted in England, nor on the Continent of Europe; at least I can recall no instance of the kind.  Test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power.  It was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct.

The Court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the Constitution against the passage of bills of attainder.  In depriving parties of existing rights for past conduct, the provisions of the constitution of Missouri imposed, in effect, a punishment for such conduct.  Some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the Constitution against the passage of an ex post facto law.  The decision of the Court, therefore, was for the discharge of the Catholic priest.  The judgment against him was reversed, and the Supreme Court of Missouri was directed to order the inferior court by which he was tried to set him at liberty.

Immediately following the case of Cummings that of Ex-parte Garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of Congress of January 24th, 1865.  Mr. A.H.  Garland, now United States Senator from Arkansas, had been a member of the Bar of the Supreme Court of the United States before the civil war.  When Arkansas passed her ordinance of secession and joined the Confederate States, he went with her, and was one of her representatives in the Congress of the Confederacy.  In July, 1865, he received from the President a full pardon for all offences committed by his participation, direct or implied, in the rebellion.  At the following term of the Court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of Congress, and the rule of the Court made in conformity with it, which he was unable to take by reason of the offices he had held under the Confederate government.  The application was argued by Mr. Matthew H. Carpenter, of Wisconsin, and Mr. Reverdy Johnson, of Maryland, for the petitioner—­Mr. Garland and Mr. Marr, another applicant for admission, who had participated in the rebellion, filing printed arguments—­and by Mr. Speed, of Kentucky, and Mr. Henry Stanbery, the Attorney-General, on the other side.  The whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented.