[* 467] *CHAPTER XIII. OF RELIGIOUS LIBERTY. A CAREFUL examination of the American constitutions will disclose the fact that nothing is more fully set forth or more plainly expressed than the determination of their authors to preserve and perpetuate religious liberty, and to guard against the slightest approach towards the establishment of an inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. The American people came to the work of framing their fundamental laws after centuries of religious oppression and persecution, sometimes by one party or sect and sometimes by another, had taught them the utter futility of all attempts to propagate religious opinions by the rewards, penalties, or terrors of human laws. They could not fail to perceive, also, that a union of Church and State, like that which existed in England, if not wholly impracticable in America, was certainly opposed to the spirit of our institutions, and that any domineering of one sect over another was repressing to the energies of the people, and must necessarily tend to discontent and disorder. Whatever, therefore, may have been their individual sentiments upon religious questions, or upon the propriety of the State assuming supervision and control of religious affairs under other circumstances, the general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and religious worship should be questions between each individual man and his Maker. Of these questions human tribunals, so long as the public order is not disturbed, are not to take cognizance, except as the individual, by his voluntary action in associating himself with a religious organization, may have conferred upon such organization a jurisdiction over him in ecclesiastical matters. These constitutions, therefore, societies, having little resemblance to those which constitute a part of the 1 The religious societies which exist in America are mere voluntary have not established religious toleration merely, but religious equality; in that particular being far in advance not only of the machinery of government in England. They are for the most part formed under general laws, which permit the voluntary incorporation of attendants upon religious worship, with power in the corporation to hold real and personal estate for the purposes of their organization, but not for other purposes. Such a society is "a voluntary association of individuals or families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected." Walworth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 301. See Ferraria v. Vasconcellos, 31 Ill. 25; Lawyer v. Clipperly, 7 Paige, 281; Shannon v. Frost, 3 B. Monr. 258; German, &c., Cong. v. Pressler, 17 La. Ann. 127; Sohier v. Trinity Church, 109 Mass. 1. Such a corporation is not an ecclesiastical, but merely a private civil corporation, the members of the society being the corporators, and the trustees the managing officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson v. Bullions, 11 N. Y. 249; Miller v. Gable, 2 Denio, 492. Compare Watson v. Jones, 13 Wall. 679. The church connected with the society, if any there be, is not recognized in the law as a distinct entity; the corporators in the society are not necessarily members thereof, and the society may change its government, faith, form of worship, discipline, and ecclesiastical relations at will, subject only to the restraints imposed by their articles of association, and to the general laws of the State. Keyser v. Stansifer, 6 Ohio, 363; Robertson v. Bullions, 11 N. Y. 249; Parish of Bellport v. Tooker, 29 Barb. 256; same case, 21 N. Y. 267; Burrel v. Associated Reform Church, 44 Barb. 282. The courts of the State have no general jurisdiction and control over the officers of such corporations in respect to the performance of their official duties; but as in respect to the property which they hold for the corporation they stand in position of trustees, the courts may exercise the same supervision as in other cases of trust. Ferraria v. Vasconcellos, 31 Ill. 25; Smith v. Nelson, 18 Vt. 511; Watson v. Avery, 2 Bush, 322; Watson v. Jones, 13 Wall. 679; Hale v. Everett, 53 N. H. 9. But the courts will interfere where abuse of trust is alleged only in clear cases, especially if the abuse alleged be a departure from the tenets of the founders of a charity. Happy v. Morton, 33 Ill. 398. See Hale v. Everett, 53 N. H. 9. articles of association will determine who may vote when the State law The mother country, but also of much of the colonial legislation, which, though more liberal than that of other civilized countries, nevertheless exhibited features of discrimination based upon religious beliefs or professions.1 does not prescribe qualifications. State v. Crowell, 4 Halst. 390. Should there be a disruption of the society, the title to the property will remain with that part of it which is acting in harmony with its own law; seceders will be entitled to no part of it. McGinnis v. Watson, 41 Penn. St. 9; M. E. Church v. Wood, 5 Ohio, 286; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Monr. 253; Gibson v. Armstrong, 7 B. Monr. 281; Hadden v. Chorn, 8 B. Monr. 70; Ferraria v. Vasconcellos, 23 Ill. 456. And this even though there may have been a change in doctrine on the part of the controlling majority. Keyser v. Stansifer, 6 Ohio, 363. See Petty v. Tooker, .21 N. Y. 267; Horton v. Baptist Church, 34 Vt. 309; Eggleston v. Doolittle, 33 Conn. 396; Miller v. English, 21 N. J. 317; Niccolls v. Rugg, 47 Ill. 47; Kinkead v. McKee, 9 Bush, 535. Peculiar rights sometimes arise on a division of a society; as to which we can only refer to Reformed Church v. Schoolcraft, 65 N. Y. 134; Kinkead v. McKee, 9 Bush, 535; Niccolls v. Rugg, 47 Ill. 47; Smith v. Swormstedt, 16 How. 288. The administration of church rules or discipline the courts of the State do not interfere with, unless civil rights become involved, and then only for the protection of such rights. Hendrickson v. Decow, Sax. Ch. 577; Harmon v. Dreher, 2 Speers Eq. 87; Dieffendorf v. Ref. Cal. Church, 20 Johns. 12; Johns Island Church, 2 Rich. Eq. 215; Den v. Bolton, 12 N. J. 206; Baptist Church v. Wetherell, 3 Paige, 301; German Reformed Church v. Seibert, 3 Penn. St. 291; Watson v. Farris, 45 Mo. 183; Mc Ginnis v. Watson, 41 Penn. St. 21; Watson v. Jones, 13 Wall. 679; Chase v. Cheney, 58 Ill. 509; Gartin v. Penick, 5 Bush, 110; Lucas v. Case, 9 Bush, 297; People v. German, &c. Church, 53 N. Y. 103; Grosvenor v. United Society, 118 Mass. 78. But an excommunication will not be allowed to affect civil rights. Fitzgerald v. Robinson, 112 Mass. 371. 66 1 For the distinction between religious toleration and religious equality, see Bloom v. Richards, 2 Ohio St. 390; Hale v. Everett, 53 N. H. 1. And see Madison's views, in his Life by Rives, Vol. I. p. 140. It was not easy, two centuries ago, to make men educated in the ideas of those days understand how there could be complete religious liberty, and at the same time order and due subordination to authority in the State. Coleridge said that toleration was impossible until indifference made it worthless. Lowell, Among my Books," 336. Roger Williams explained and defended his own views, and illustrated the subject thus: "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination or society. It hath fallen out sometimes that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges: that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship if they practice any. I further add that I never denied that, notwithstanding this liberty, the commander of this * Considerable differences will appear in the provisions [* 468] in the State constitutions on the general subject of the present chapter; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious persuasion, society, or sect, ineligible to civil office; 1 and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion.2 ship ought to command the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their service, or passengers to pay their freight; if any refuse to help, in person or purse, towards the common charges or defence; if any refuse to obey the common laws and orders of the ship, concerning their common peace and preservation; if any shall mutiny and rise up against their commanders and officers; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, no corrections nor punishments; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Knowles, 279, 280. 1 There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Louisiana, Delaware, Maryland, and Kentucky. 2 The Constitution of Pennsylvania provides "that no person who acknowledges the being of God, and a future state of rewards and punishments, shall, on account of his relig ious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth." Art. 1, § 4.- The Constitution of North Carolina: "The following classes of persons shall be disqualified for office: First. All persons who shall deny the existence of Almighty God," &c. Art. 6, § 5. The Constitutions of Mississippi and South Carolina : "No person who denies the existence of the Supreme Being shall hold any office under this Constitution." The Constitution of Tennessee: "No person who denies the being of a God, or of a future state of rewards and punishments, shall hold any office in the civil department of this State." On the other hand, the Constitutions of Georgia, Kansas, Virginia, West Virginia, Maine, Delaware, Indiana, Iowa, Oregon, Ohio, New Jersey, Nebraska, Minnesota, Arkansas, Louisiana, Texas, Alabama, Missouri, Rhode Island, Nevada, and Wisconsin expressly forbid religious tests as a qualification for office or public trust. Very inconsistently the Constitutions of Mississippi and Tennessee contain a similar prohibition. Art. 12, § 3. In the Constitutions of Alabama, Colorado, Georgia, Illinois, Iowa, Kentucky, Michigan, New Jersey, Rhode Island, and West Virginia, it is provided that no person shall be denied any civil or political right, privilege, or capacity on account of [* 469] There are exceptional * clauses, however, though not many in number; and it is believed that, where they exist, they are not often made use of to deprive any person of the civil or political rights or privileges which are placed by law within the reach of his fellows. Those things which are not lawful under any of the American constitutions may be stated thus: 1. Any law respecting an establishment of religion. The legislatures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects.1 Whatever establishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle ; it is enough that it creates an inequality of right or privilege. 2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.2 his religious opinions. The Constitution of Maryland provides that no religious test ought ever to be required as a qualification for any office of trust or profit in this State, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution." Declaration of Rights, Art. 37. The Constitution of Illinois provides that "the free exercise and enjoyment of religious profession and worship without discrimination shall for ever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentious ness, or justify practices inconsistent 1 A city ordinance is void which gives to one sect a privilege denied to others. Shreveport v. Levy, 26 La. Ann. 671. 2 We must exempt from this the |