The Historical Relation of Law and Religion Author(s): Charles C. Marshall Source: The Journal of Religion, Vol.

13, No. 1 (Jan., 1933), pp. 18-38 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/1195731 . Accessed: 16/05/2011 22:24
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THE HISTORICAL RELATION OF LAW AND RELIGION

ASPECT' IN ITS AMERICAN CHARLES MARSHALL C.
New York City

wouldrequire HE subject,if treatedas expressed, the

elementnecessarily the andLatinAmerica; historical and leadsback some centuries, religionin its relationto law to somereference underlying involves conceptions. philosophical to Forall this,thereis littlespace. I shallconfine report the my

in of consideration developments bothAnglo-Saxon

"American State." of States America-the United

I. SIXTEENTH-CENTURY ORIGINS

The medieval aspirationsin religious and political life had been towardunity; the humanrace-so ran the tradition-was, by the law of nature-the divine law-a religioussociety; governmentwas a theocracy; Christ as God was king, but his two vice-gerentson earth, the pope and the emperor,bespoke the and inevitabledualisminvolvedin the terms: "religion" "law," "church"and "state." This dualismnot only evolved out of a conceptionof unity-the spiritualconceptionof Christas king
' A reportto the Congressof Comparative Law, held at The Hague, August 2-6, Law of Berlin. Academyof Comparative 1932,underthe auspicesof the International The Academysolicitedmorethan two hundredreports,and delegatesrepresenting fifty-fivenationsparticipated. and Relations Religion of Law,reportswereconand Onthe Historical Ethnological of CheikhAhmedIbrahamand Ali M. Badavi, EgyptianUnivertributedby Professors ArnoldP6schl,Graz;Fulvio sity, Cairo;HenriMaunier,Paris;EugeneJarra,Warsaw; CharlesS. Le Mesurier, McGill Harbin,Manchuria; Maroi,Turin;V. A. Riasanovsky, University,Montreal;ChoucriCardahi,Presidentof the Courtof Appeals,Lebanese Republic,Beirut; Fr. M. Goadby,Director of Legal Studies to the Governmentof Palestine,Jerusalem;S. G. Vesey Fitzgerald,Lecturerin Hindu and Mohammedan C. of Charles Marshall the American Law,Oxford; Bar,New York;Dr. C. W. Westrup, Universityof Copenhagen. An importantoutcomeof the Congressis the scheme to create an International of basis. Facultyfor the study of all branches the law on a comparative
IS8

LAW AND RELIGION

19

over the human race-but it looked to an ultimate realization of unity in the universalmoraland spiritualorder.
II. THE MEDIEVAL LEGAL AND POLITICALINTERPRETATION OF THE CHRISTIAN REVELATION

The interpretation was that at the advent of Jesus Christthe naturaland universalorder,theretofore prevailing,was changed by the direct interventionof the Creatorin his creation, and his revelation to man through Jesus of a supernaturalorder which from thence onwardwas to take the place of the natural order theretoforeprevailing; natural society was to be eliminated and the Christianchurch,a supernaturalsociety potentially universaland supreme,was to take its place in the cosmic order. Under this conception an idea was dogmatized into the into church,and thenceincorporated the governmentand law of the Western world-an idea of religious universalismas contrasted with Judean and pagan religiousracialism;instead of pre-empting a national territory for a national religion, the Christianchurchpre-emptedthe whole earth for its members and sanctionedthe usurpation an accommodating by interpretation of the teachingof Jesus. All who couldnot accept the dogmas of the church became at once outlaws from the cosmic naturalor divine order-aliens to God and man, without rights in the politicalorder (the state), condemnedto a fugitive existence or to death, the heretics of history.
III. THE THEORY OF THE TWO POWERS

Underthe interpretationI have outlined,this theory was developed; at the beginningof the sixteenth century, religionand law restedon it; the churchand the state werethe two and only two perfect societies, perfect moral or juristic personalities, known to human thought. A few definitionsof terms as hereused will save wordsMoral personalities: groups or associations of human or physical entities, by the law of nature spontaneously coming into being through the

20

THE JOURNALOF RELIGION

needsof man'ssocialnature-moral entitiesby the law of natureapart

from the recognition or sanction of the state by positive law;2

moralpersonalities whicharerecogJuristicor juridical personalities:

nized in or sanctioned by the state as having, irrespective of legal incor-

poration,the right to exist (minoribus aequiparantur): moralor juristicpersonalities whichthe state personalities: Corporate law has madelegalpersonalities definite with by positive legalrightsand or whichthe state recognizes havingthe rightsand as legal functions; status of corporate but personalities, conferred someotherauthority by
higher, in the premises, than the state, e.g., by the church under the theory of the two powers;

societiesor associations: Idealistic thoseexistingfor the prosecution of the spiritual,religious, and moral,intellectual, culturalinterestsof men in the sociallife; Naturallaw: the law that men find,or thinkthey find,in the nature of things;religion callsit divinelaw. In the theory of the two powers, the church and the state

were not only moral personalities-they were the only perfect moralpersonalities, societates perfectae-in that they werepotencommensurate scope with mankindat large, and were in tially possessedrespectivelyof juridicalcompetence,in their respective jurisdictions, provideall meansnecessaryto theirrespecto tive ends. The church,however,had a specialdivineordination, as revealedin the Christianrevelation,unto her supremespiritual jurisdiction,which gave her a supernaturalstatus, paramount, in the natureof things-i.e., in the divine intent-over the natural status of the state. The foundationsof the church in this legal and political theory were laid, not on earth, but in Purgatory. Her power to open from time to time the gates of Hell to releasethe souls of men, the power to bind and loose in conscience,the power of the keys-these made her supreme over the state.
IV. MAN'S RELATION TO THE STATE CONDITIONALBECAUSE OF HIS ABSOLUTE RELATION TO THE CHURCH

2 The definition does not coverthe corporation or certainmoralor juristicpersole sonalitiesincidentalto propertydonations,e.g., benefices,etc. They are not strictly within the scopeof this paper.

So long as the idealistic life of man and his spiritualaspirations and religiousinterestswere given over to the jurisdiction

LAWAND RELIGION

21

of one universal tangible church, his relation to that visible churchwas absoluteand his relationto the state-to civil government-relatively conditionaland subordinate.The matter of interest here is the necessary and inevitable absolutism or sovereignty of the one tangible church and its hierarchyover the entireidealisticrangeof the humanmind,whetherfunctioning in the religious,the moral, the intellectual, or the political to sphere;"the exerciseof privatejudgmentwas impossible most and sinful to all."'3
V. MORALAND JURISTIC PERSONALITIES IN THE THEORY OF THE TWO POWERS

Each of the two powers combinedwithin itself all the subordinate and inferiormoral and juristic personalitiesdeveloping in its particularjurisdiction;thus all political associations wereintegratedin the state, and all idealisticassociationswere integratedin the church. Owingto the inherentsupremacyof the church,all idealisticassociations,in the state, rightfullyattained a juristic status only by the recognitionor sanction of the church. Their participationin the supernaturalstatus of the church-her divine ordination-gave them, like the church, inherentrights as opposedto the state; they were independent of the state, and, in the enjoymentof corporateand legal rights, conferredexclusivelyby the church. These in historicaldevelopmentwerefoundto be the rightsto acquireandholdproperty in any amount deemed necessaryby the church,and to enjoy or the unlimitedright of propaganda education. As the idealistic associationsof the church, thus set in independenceof the state, coveredthe entire moraland intellectuallife of man, the paralyzingeffect on society was prodigious.There was a perpetual mortmainof ideas. Their fructificationrequiredthe associativelife. They perishedwithout it. At the time underconsideration,no idea generatingin the humanmind, no discovery in scienceor the arts, no theory in philosophy,couldfind for itself an associativelife exceptas the associationwas integratedin
3 The apt wordsof LordBryce,cf.

TheHolyRomanEmpire,p. 422.

22

THE JOURNALOF RELIGION

the churchand wholly subordinated it. If the churchdid not to approveof the idea, the idea must eke out a fugitive existence or perish under ecclesiastical decrees, outlawed like heretics from society and the state.
VI. THE COLLAPSE OF THE THEORY OF THE TWO POWERS

In the religiousrevolution, the Reformation,the Christian church subdividedde facto, and the universal religious sovereignty of the Bishop of Rome-the pope-was abrogated. The Treaty of Passau (1552) and the ReligiousPeace of Augsburg (1555) secured the independence of territories of Lutheran princesagainst the religiousjurisdictionof the pope. England, under Henry VIII, renouncedthat jurisdiction,and set up the of religioussupremacy the king in its place. The Treaty of Osnabruck and the Peace of Westphalia (1648) extended the independenceof papal jurisdictionto the territoriesof the Calvinist states. The one churchwas disunitedand subdividedinto several religioussocieties. Thereaftersubdivisionproceededrapidly. Associations which were neither Catholic, Calvinist, nor Lutheran,which denied the Trinitarianfaith-Jews, Quakers, Socinians,and Deists, etc.-demanded rights within the state assimilatedto those enjoyed by Trinitarianbelievers,and were re-enforced skeptical and atheistical societies thrownoff by by the fermentin France. TeutonicandAnglo-Saxon Europelargely discardedthe theory of the two powers and recognizedreligious liberty as necessary to the political life of man. Latin Europe held to the theory with a tenacious grasp never yet wholly relaxedin laws and institutions. The subdivisionof the churchand the disintegrationof the visible universalspiritual authority had a profoundeffect upon law and upon the theory of the origin and basis of civil authority. Populargovernment with its origin in the people came to assert its independence of ecclesiastical sanction and to contest the validity of the dynastic state and its origin, through the medium of the church,in God.

LAW AND RELIGION

VII. THE AMERICAN STATE

23

North America,a continentvirgin to civilization,was settled largely by Anglo-Saxon people whose native states had already discardedthe theory of the two powers. In this territorialand racialenvironmentthere came to maturity a new social and political system. The sovereigntyof the churchwas disintegrated into a multiplicityof moralpersonalities,that of the state, into the people-a multiplicity of physical entities or personalities. The state became the mere delegate of powersfrom the people under the guarantyby the people, to the citizen, of civil rights against the state itself. All powersnot delegatedby the people were reservedto them. Thus all life was releasedfrom the constriction of two moralpersonalities-the two powers-into the of efflorescence a multiplicityof humanideasand functionsin as state was to be neither many moralpersonalities. The American monist nor dualist but pluralist. Madisonhad said, in the Federalist, that in a free government the security for civil rights must consist in a multiplicity of interests, and the security for religiousrightsin a multiplicityof sects; what came to pass was but the incorporation his idea in American of law. Absolutismin was limited by the subdivisionof the universalchurch religion into a multiplicity of moral personalities.Absolutism in the state was limited by the transfer of civil sovereignty to the people.
VIII. MORALAND JURISTIC PERSONALITIES IN AMERICAN LAW

The disintegration the churchset free its subordinate of associations. The changes in the conceptionof the state as an organizationof constitutionallimitationsand of powersdelegated by the people made it impossibleto integrate those personalities in the state. Could it have been done it would have produced the absolutestate-the Leviathanof Hobbes. An escape -such as it was-from the dilemma,was found-or thought to be found-in the political dogma of the freedomof conscience. Indeed, the dogmawas requisiteto the functioningof the mul-

24

THE JOURNALOF RELIGION

tiplicity of moralpersonalitiesinto which religiousand political life had been resolved. The first amendmentto the federal Constitutionprovided: "Congressshall make no law respectingan establishmentof religion, or prohibitingthe free exercisethereof."4By thus guaranteeing the freedomof all religions,the Constitutionrepudiated the exclusive claims of every religion,and relegatedreligion, in its relation to law, to the natural order. Thenceforth like its kindred,philosophyand science,it must find its life and functionnot in one religiousestablishmentbut in a multiplicity of moralpersonalitiesof equivalentlegal status. The constitutional guarantiesto the citizen of religiousfreedom,of life and liberty and the equal protectionof the laws, secureda juristic status for all moralpersonalities,freed from the dominationof every establishmentof religion-in sharpcontrastto the status within the churchunderthe theoryof the of moralpersonalities two powers. From the beginning,the Americanlaw concerningreligious associations,and all idealisticassociations,seemsto have develby oped fromthe clearrecognition the peoplethat such associations are moralentities by naturallaw, and as such enjoy a real and not a fictitiouspersonality,of whichpositive law in the nature of things must take cognizance. to In jurisdictionswhere the state has refusedincorporation and charitablesocieties, e.g., Virginia,West Virginia, religious early Pennsylvania,it has recognizedthe juristicstatus of such moral personalitiesby enacting legislation providing indirect meanswherebythey might hold and acquirepropertywith cognate legal rights. Such means have been found in trusteessand even in incorporatedagencies.6A trustee argues a real, not a fictitious,beneficiary,and an agency, a real and not a fictitious principal. Mr. JusticeBrandeishas recentlystated that he finds
4 The amendment relates to federal jurisdiction only. The state constitutions provide their own religious limitations and vary in degree of religious freedom. 5 Heiskell v. Trout, 31 W. Va. 8io. 6 Trustees &*c. Guthrie, 86 Va. v. z25;Wilson v. Terry, 29 W. Va. I69.

LAWAND RELIGION

25

muchauthorityin the American that even an associationfor law businessends "is just as distinct and palpablean entity, in the idea of the law, as distinguished fromthe individualscomprising Civicassociations,the state's moralperit, as is a corporation."' as well as her idealistic associations,shared in the sonalities, new freedomwhichpervadedall departments life. It has been of embodied in the electoral system of the state: while laws receive their sanctionand governmentits authority,by the action of majorities,the absolutismof the latter is prevented by the equality in status grantedto majoritiesand minoritiesalike as juristicpersonalities.The result is that there can be, ultimately, no absolutismof a majority, for no triumphby a majority can extinguishthe constitutionalright of the minority to embody an idea. No matter how often that idea may be repudiated, the minority may bring it back into the electoral arena where, waxing into a majority, it may finally integrate it into the life of the state-if it has the vitality of truth.
IX. MAN'S RELATION TO THE STATE UNDER AMERICAN LAW IS CONDITIONALBECAUSE OF HIS ABSOLUTE RELATION TO GOD AND CONSCIENCE

The relationof the citizen to the Americanstate is analogous in part to the relationof the citizen to the medievalstate. It is conditional,but unlike the relation in the medieval state, it is conditionalnot to a tangible,universalchurchor religioussoverof eigntybut to the conscience the citizen,freelyexercised.That meansa free state and the equal right of all churchesbeforethe law, the freedom of the conscience and the right of private judgment sincerely exercised. While duty to a higher power than the state thus distinguishesthe Americanorder no less than the medieval,thereis a radicaldistinction: in the medieval state, the higher power was a particularchurchobeyed under the penalty of damnation;in the Americanstate, it is God and conscience freely realizedby the individual.
7 Eisner v. Macomber, 252 U.S. 231.

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OF THE JOURNAL RELIGION

This conditionalrelation of the citizen to the state, and his absolute relation to a higher order of life, is recognizedin the initial documentin Americanpoliticalhistory declaring,as selfevident truths, that men are endowed by their Creator with certain inalienablerights, that governments derive their just powers from the consent of the governed,and that, when any form of governmentbecomesdestructiveof these ends, it is the right of the people to alter or abolish it. This conditionalrelationship to the state sustains the right to revolution which Hamilton describedas paramountto all positive forms of government;makes the rights of conscienceinalienableor absolute and rights which, as Story said, the citizen need not surrender which the governmentor society cannot rightfullytake away; and supportsthe ChiefJustice of the United States in his statement in the MacintoshCase,videinfra, that "duty to a higher power than the State has always been maintained,"and that "the essence of religionis belief in a relation to God involving duties superiorto those arisingfrom human law."
X. THE CASES

The Americanstate found itself with a multiplicityof moral personalities-idealistic associations-to which the people in their sovereigntyhad given constitutionalguarantiesof life and liberty, not only againsteach other, but against the state itself. The workingout of a rational and harmoniouslaw governing their relations to the state and to each other became and still is the difficulttask of the judiciary. Most of the cases have dealt with the religious society or church, but that is merely the religiousphase of the generic idealistic society. In the last analysis it seems to make little differencein Americanlaw whether the object of the association, in point, is religious, educational, charitable, or moral. Most of the cases deal with corporations,but the principles enunciatedrelate essentially to moral or juristic personalities, irrespectiveof incorporation.

LAWAND RELIGION

27

In the leading case of Watsonv. Jones,8the federalSupreme Court placed the religious association, in its relation to the state, on "the higherplane"-that is, above the contractual. The Court said:
In this countrya full and free right to entertainany religious belief, to practiceany religiousprinciple, and to teach any religiousdoctrine whichdoesnot violatethe lawsof moralityandproperty, whichdoes and not infringe to personal rights,is conceded all. The law knowsno heresy and is committedto the supportof no dogma,the establishment no of sect. The right to organizevoluntaryreligiousassociations assist in to the expression dissemination any religious and of and doctrine, to create tribunalsfor the decisionof controverted questionsof faith within the of association,and for the ecclesiastical government all the individual and withinthe general is members, congregations officers association, unquestioned.

The jurisdiction,here concededto churchtribunals,indicates

an extraordinary solicitude in the state for the freedom of religious associations and for their enjoyment of a unique status growing out of the recognition by the state of their absolute relation to a higher order of life. The Supreme Court of Illinois has said: The Constitution intendedto guarantee, fromall interference the by in State, not only each man's religiousfaith, but his membership the and whichmightbe adopted.Theonlyexchurch, the ritesanddiscipline to shall not be ception uncontrolled libertyis, that actsof licentiousness and inconsistent with the peaceandsafetyof the State, excused, practices shall not be justified.9 The Supreme Court of Kentucky has said: Civil government no just or lawfulpowerover the conscience, has or faith or formsof worship, churchcreedsor discipline, long as their or as fruitsneitherunhinge civil supremacy, demoralize its society,nordisturb
peace and security.Io

In the case of the Mormon Church," the United States Supreme Court said:
10 Gartin v. 8 8o U.S. 679. Penick, 69 Ky. IIo. 9 Chase v. Cheney, 58 Ill. 509. The Late Corporationof the Churchof Jesus Christ of Latter Day Saints v. United 1" States, 136 U.S. i.

28

THE JOURNAL RELIGION OF

and TheStatehasa perfect open rightto prohibit polygamy allother of the sentiment mankind notwithstanding against enlightened offences of and conviction which maybeadvocated thepretence religious by they practiced. The languageof the opinionin this case makes the limitation one against offensesratherthan against the mere expressionof opinion,but clearlyreservesto the state the right to determine the sinceritywith which the plea of religiousconvictionor conscience is made in behalf of the offensespracticed. In Davis v. Beasonr" same Court recognizedthe right of the the citizen "to entertainsuch notions respectinghis relationto his Maker, and the duties they impose, and which may be approvedby his judgmentand conscience,and to exhibithis sentiments, in such form of worship as he shall think proper." It then held constitutionalthe statute of the federal territoryof Idaho prohibiting,fromvoting, any personwho is a bigamistor a polygamist or who teaches, advises, counsels,or encourages others to become bigamists or polygamists, or to commit a crime. The decision clearly is not directedagainst the presentation in speculativeopinionof the allegedmerits of a polygamistsystem, nor againstthe expression,in the samefield, of the opinion that an act penalizedby the law of the state as a crime,may, morally, be not a crime; it seems to be directedsolely against the teaching the encouragement the practice polygamy and of of and the commission a crimeor offensesagainstthe established of law. From these opinions it would seem that the "uncontrolled liberty," the "full and free right" referredto by the courts, while it permitsthe entertainmentor discussionof opinionsand ideas, and even their polemical or speculative dissemination, does not extend to overt acts-to offenses as contrastedwith opinions. Thought and idea are thereby left at liberty, while conductis constrained within the currentstandardsof morality.
SI133U.S. 333-

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Education in the sense of school-teaching has been largely reserved, with great emphasis by the courts, to the jurisdiction of the state. In recent cases'3 the Supreme Court of the United States held void statutes of Nebraska and Iowa prohibiting the teaching of all foreign languages, and a statute of Ohio prohibiting the teaching of German in all schools, whether private or public, religious or secular. In none of these statutes was there any prohibition of the teaching of the forbidden languages except in schools. The Court held this an unreasonable discrimination and that therefore the statutes violated the constitutional guaranties of life, liberty, and property. The decisions were rendered expressly upon the ground, not that the state was without power to prescribe in respect to the teaching in schools, if there were due occasion for it, but that the cases in question failed to disclose any due occasion. The Court made express recognition of the natural rights of parents to guide the education of their children, but expressly reserved, from all impairment, state constitutional powers when, in the opinion of the state, occasion should arise. In Meyer v. Nebraska the Court said: Thepowerof the Stateto compel attendance someschoolor to make at reasonable for all schools,including requirement they a that regulations shallgiveinstruction English, not questioned.Norhaschallenge in is been madeof the State'spowerto prescribe curriculum institutions a for which it supports.Thosemattersarenot withinthe presentcontroversy. Very significant was the dissenting opinion, in the Meyer case, of Mr. Justice Holmes, in which Mr. Justice Sutherland concurred, declining to agree with the Court in its decision, and stating that, while he appreciated the objections to the law, it appeared to him to present a question upon which men reasonably might differ, and that he was unable to say that it was unconstitutional.
'3 Meyer v. State of Neb., 262 U.S. 390; Bartels v. State of Ila., 262 U.S. 404; Bohning v. State of Ohio, 262 U.S. 404; Pohl v. State of Ohio, 262 U.S. 404.

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THE JOURNALOF RELIGION

to mustbe position,thatcertainstudiesplainly essential goodcitizenship and be which manifestly is inimicalto thepublic taught, thatnothing taught welfare. The case of Scopes v. The State of Tennessee'5involved the

In the cases of Pierce(Governor Oregon) theSocietyof Sisv. of and v. Hill Military Academy,'4 private schools, the ters'4 two Court declaredunconstitutional statute of Oregonrequiring the the educationof all childrenbetween the ages of eight and sixteen in public schools,to the exclusionof private schools.There was no evidenceor claimthat the private schoolswerenot satisfactory. The Courtheld that in the absencethereof,the statute unjustly deprivedthe defendantsof their constitutionalrights and was, therefore,void. In his recent encyclicalon the Education Youth,Pope Pius of XI referredto the Oregoncase as restrictingthe state against the church. He stated that the court based its decisionon the naturallaw that the child is not the mere creatureof the state and that those who nurturehim and direct his destiny have the right, coupledwith the high duty, to educatehim. But the Pope seems to have overlooked the following expression by the Court: No question raised is the of to concerning power theStatereasonably allschools, inspect, to andexamine regulate supervise them,theirteachers andpupils; require all children proper attendsome to that of age thatteachers be of goodmoral shall character patriotic and disschool,

rights of an individual,but the decisionhas an importantrelation to state jurisdiction over educational associations. The Courtheld constitutionala statute of Tennesseeforbiddingthe teachersthat man has descendedfrom teachingby public-school a lowerorderof animals. The statute was sustained. The Court held that it was not an exerciseof the police powerby the state in its political status but an exerciseof its ordinarycontractual power in its corporatestatus as a proprietor,or employer of labor-those whom the state employedit could controlwithin
14268 U.S.

5Io.

's 154 Tenn. Io5.

LAW AND RELIGION

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the scope of their employment;the statute, it was held, did not violate the constitutionalprovisionsincludingthat of Tennessee that "no human authority can in any case whatever control or interferewith the rights of conscience." Interesting was the view suggested in the opinion that the statute, as construedby the Court, shouldbe favoredbecause, by prohibitingthe teachingof the descent of man from a lower orderof animals,it supportedthe idea of his direct creationby God,and so sustainedthe principleof the supremacyof the idea of God and consciencein Americanlaw. In the late case of U.S. v. Macintosh"6 federal Supreme the Court sustained state absolutism. Here, as in the Scopescase, the rights of an individual and not of an associationwere involved, but the decisionis one of paramountimportanceto the subject of conscienceand to the rights of idealistic societies in to promotingtheir ideals. The Courtdenied naturalization the defendantupon his avowal that he could take the Oath of Allegiance only with the reservationof his rights to refuse to bear arms in case of war, which, in his conscience,was not justified. The Court, in its opinion,made no referenceto the conditional relationin Americanlaw of the citizen to political government. In effect,it repudiatedthe rightof freedomof consciencein relation to the justificationof war and to the bearingof armstherein. It remainedfor four dissentingjustices-the Chief Justice, and Justices Holmes, Brandeis,and Stone-to come to the defense of the chief dogmaof Americanpublic law, and to declare in the dissenting opinion written by the Chief Justice, from which I have alreadyquoted, that in that law "duty to a higher power has always been maintained,"and that there is "a relation to God involving duties superiorto those arisingfrom any human relation.""
26 283 U.S. 60o.
'7 The case of Macintosh was decided by the Court under the decision in United

States v. Schwimmer, 279 U.S. 644, in which the opinion written by Mr. Justice Butler was silent on the absolute claims of conscience. Justices Holmes and Brandeis also dissented in that case.

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XI. THE REACTION OF RELIGION TO THE DEVELOPMENT OF AMERICAN LAW

The reactionwas very sharplydividedby a line betweenreligious societiesrootedin a developmentwhichhad discardedthe theory of the two powers,and that great religioussociety which had retained it-between the non-Roman or Protestant, and the Roman development. foundno difficultyin coalescingwith The Protestantchurches the newpoliticalorder. Each one of their threetraditions,Augsburg, Geneva, and Canterbury,as much as that of Rome, had asserted, with violence and fury, its exclusive status in divine right; but an ever increasingdiversity of doctrinehad led to a multiplicity of churches,which made the toleration of every churchthe sole alternativeto the extirpationof all. Their Protestant and democraticorganization; repudiationof hierarchical rule; rejectionof ecclesiasticalinfallibilityand supremacy;parof ticipationof the laity, by majorityvote, in the determination faith, moralsand discipline;avowal of the doctrineof the freedom of conscience-these have assimilated their organizations to the Americanstate; they acceptedwithout difficultythe same status of juristic personality accorded by the state to all its idealistic associations. In the slavery agitation and in the prohibition development,some of them have carriedchurchactivity into politics, law, and government;but their action has always been, as in their natureit had to be, the action of ordinary voluntary and private associations. On the contrary,the world-wideand intensive participation of the Catholic and Roman church in the politics, law, and government of states has been based on the claim of quite a differentstatus, to which the most authoritativeexpressionhas been given by the constitutionsof the Vatican Councilof 1870, the revisionof the CanonLaw, 1917, the encyclicalsof the five last pontificates. The constitutionsof the Vatican Council of I870.-In 1870 Pope Pius IX promulgatedthe conclusionsof the Ecumenical Vatican Council, of that year, in the DogmaticConstitution of

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the CatholicFaith'8and the First Constitution the Christian of Church.'" By the formerthe churchreassertedher medievalinterpretation of the Christianrevelation (II. supra,) affirming:that no one shall interpret the Scripturescontrary to the sense which the churchhas held and holds; that that meaningof the sacred dogmasis perpetuallyto be retainedwhich the churchhas once end; that the declared;that man is ordainedto a supernatural scriptures are a supernaturalrevelation; faith a supernatural virtue and above reason; created reason absolutely subject to truth uncreated (though known by Revelation to the church); the assertionsof sciencenot true if opposedto revealeddoctrines as taught by the church. on TheFirst Dogmatic Constitution theChurch Christ(Pastor of declaredthe infallibility, by the appointmentof AlAeternus) mighty God, of the Romanpontiff, when defininga doctrineof faith or moralsto be held by the church;it furtherdeclaredthe possessionby the church,throughthe appointmentof Christ,of a sovereignty-a power of jurisdiction-of the Roman pontiff, and to which all are boundby duty of subordination true obedience, to submitin matterswhichbelongto faith andmorals,and in those that pertain to the disciplineof the churchthroughout the world. "This,"said the Council,"is the teachingof Catholic truth, fromwhichno one can deviate withoutloss of faith and of salvation." A religious supremacy,under the penalty of damnation, is thus establishedover the entirerangeof moralmatters involved in civic action and relation,in lieu of the free conscienceof the citizen, requiredby the law; the principleof the theory of the two powersis again reasserted. The doctrinalexpositionof the church agrees: "In case of direct contradictionmaking it impossible for both jurisdictionsto be exercised,the jurisdiction of the Churchprevails and that of the State is excluded."''
8s Mirbt (1924), No. 6o6.
'9 Rev. CharlesMacksey, sometime professorof ethics and natural right at the XIV, 251, d. under the imGregorianUniversity, Rome. CatholicEncyclopaedia, of of primatur the Cardinal Archbishop New York.

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The effect of this legislation on the relation of religion to Americanlaw is obvious: The church takes possessionof the point of greatest strategicalvalue in her contest with the electo toral stato. The conscienceof the voter is subordinated ecclesiastical decreesand the popularvote made dependenton religious authority. A Roman Catholicmajority in any state, because of the subordinationof each of its members,under the penalty of damnation,to the moral determinationof the pope, must, if faithful to their religious profession, substitute the sovereignty of the pope for that of the people, in a state issue over a moral question. In his learned treatise, already quoted, reachesonly its immediatesubjectsand indirectlythroughthem the State which they constitute"; and again: "if, then, the physical personsconstitutingthe moralperson of the State are
the subjects of the Church, they are subject to her .... in the the Rev. Dr. Macksey says ". . ... the Church. .. . directly

fulfillmentof all civil dutiesof the State towardsreligionand the Church. The Church,because of the uselessnessof her insistence, or becauseof greaterevils to be so avoided,may waive the exerciseof this jurisdiction;but in principleit is hers."'20 The freedomdejure of moralpersonalitiesmust give way before a religiousmajority dominatedby the doctrinesexpressed by the Vatican Council;no minority could function or exist in objective moralright. These very conditionshave developedin Malta. There the ecclesiasticalright of the bishops to refuse priestly absolution to citizens who would not agree to vote in of civic electionsin compliancewith the requirements the bishhas been sustained by the Pope, the elections postponed ops by the government,and the state constitutionsuspended."2
20Catholic Encyclopaedia, XIV (New York, 1912), 252-53. Imprimatur of the

Cardinal of Archbishop New York.

22Cf. Correspondencewith the Holy See Relative to Maltese Affairs, January, 1929, to May, 1930, Presented by the Secretary of State for Foreign Affairs to Parliament by Commandof His Majesty; also Exposition of the Malta Question with Documents, February, 1929, June, 1930, printed at the Vatican Polyglot Press, 1930.

LAW AND RELIGION

35

Therevisionof theCanonLaw, I917.-The revisionreasserted the status of moral and juristic personalitiespeculiar to the theory of the two powers. By Canon Ioo it was set forth that the Catholic church and the apostolic see have the status of moralpersonalities,but by expressdivine ordination,and that all the inferiormoralpersonalities,underthe jurisdictionof the church,participate in that status. Amplifyingthe canons, the church teaches that such special divine ordinationmakes the church independent of all human authority, above all human law and independentof the state, and that her inferiorassociations, sharingin her divine status becomelikewiseindependent of the state; that the churchhas by such divine ordinationsupreme authority to create corporationsexercising civil rights irrespectiveof the state and thereforecompetentto acquireall property, in the judgmentof the churchnecessaryfor its purpose, and with the church,to exerciseall powerover education.22 It was the assertionof these powersby the churchand her associationsin Mexico that evoked the provisionof the Constitution of 1917: "The law recognisesno moralpersonalitiesin the institutions known as Churches." In the late treaty between Italy and the Holy See, article 29, it was stipulatedthat Italy shouldrecognizethe legal personality of ecclesiasticalentities created or to be createdby the Roman See. The Church of Rome is not recognized,within the federal jurisdictionof the United States, as a corporationor legal personality nor as juridicallycompetent to create corporationsor legal personalitiesexcept in respectto certainpropertyrightsin territoriesceded to the United States by Spainin the Treaty of Paris at the close of the Spanish-American War. That it shall has be to that extent recognized been decidedby the federalSuto SThe CanonicalJuristic Personalitywith Special Reference Its Status in the UnitedStatesof America, submittedto the Facultyof CanonLaw, CatholicUniversity of America,by BrendanFrancisBrown,A.B., LL.M., J.U.L.;imprimatur the Archof bishopof Baltimore.

36

THE JOURNALOF RELIGION

preme Court in the case of The City of Ponce v. The Roman CatholicApostolicChurch PortoRico.23 in Mr. Taft, when governor of the Philippines, on his mission to the Vatican, addressing Pope Leo XIII, said: The transfer sovereignty all governmental of and propertyrightsand interestsfromthe Crown Spainto the UnitedStates,in the Philippine of in froma governIslands,contained the Treaty of Paris,was a transfer ment betweenwhichand the Churchof Rome therehad been in those islands the closest associationin property,religion,and politics, to a whichby the law of its beingis absolutelyprevented from government with any Church.24 havingsuchassociations Catholic theology in America says:
.... the recognition of the Church'sright to function through purely

canonicalmoralpersons,established of and existingindependently the civil authority,is the idealarrangement the plan to whichCatholic and assent.25 theologyalonecangive unqualified The sovereignty of the Vatican City has not as yet been recognized by the United States government, and questions which may arise in the United States out of the claims of the Roman church by reason of such sovereignty, belong to prophecy, not to history.

The encyclicalsof the popes.-The encyclical Immortale Dei,

Pope Leo XIII: "TheAlmighty,therefore, appointed charge the humanrace has of the betweentwopowers, ecclesiastical the civil,the onebeingset over the and each divine,the otherover humanthings. Each in its kind is supreme, has fixedlimits withinwhichit is contained, limitswhichare defined by the natureand specialobjectof the province each,so that thereis, we of may say, an orbittracedout withinwhichthe actionof eachis brought into play by its own nativeright."26
" ... . it is to be understood that the Church, no less than the State
210

itself, is a society,perfectin its own natureand its own right,and that

23 24

U.S. 296; see also, Borlin v. Ramirez, 7 Philippines 41.

Universityof America, 196 (seesupra). p.

26

The Roman Catholic Apostolic Churchin Porto Rico (see supra). 2s Cf. The Canonical Juristic Personality (Brown), Faculty of Canon Law, Catholic The Great Encyclical Letters of Pope Leo XIII, Rev. John J. Wynne, S.J. (New

Quotedby the SupremeCourtof the United States in opinionin City of Poncev.

York:BenzigerBros.). Imprimatur the Archbishop New York,p. I14. of of

LAW AND RELIGION

37

the thosewhoexercise sovereignty oughtnot so to act as to compel Church her or to becomesubservient subjectto them,or to hamper libertyin the or of management herownaffairs, to despoilherin any way of the other her by JesusChrist."27 conferred upon privileges Encyclical letter Sapientiae Christianae, Pope Leo XIII: If the lawsof the Statearemanifestly variance at withthe DivineLaw, containingenactmentshurtfulto the Churchor conveyinginjunctions or adverseto the duty imposedby religion, if they violatein the person Pontiffthe authority JesusChrist,then truly,to resist of of the Supreme
becomes a positive duty, to obey, a crime.28

Wernz, the pre-eminent modern authority in the exposition of Canon Law, treating of the right of the church to declare civil laws invalid, states that laws so proscribed by the church "would actually be devoid of all binding force in the veryforum of the State itself."29 The encyclical letter VehementerNos,30Pope Pius X (190o6), declared null and void the law of the Republic of France separating the church from the state; and the encyclical Jamdudum in Lusitania,3' Pope Pius X (191 i), declared null and void a similar law in Portugal, absolving citizens within those states from all obligations in conscience to obey their law. The encyclical Ubi Arcano, Pope Pius XI, declared that the sacred right of Roman Catholics demands that the sacred sovereignty of the pope "must not be, nor must it ever appear to be subject to any human authority or laws whatsoever."32 The encyclical Quas Primas, Pope Pius XI, declared that "the Church which was established by God as a perfect society can not but demand as her right, a right which she cannot renounce, full liberty and independence from the civil power."33
28Ibid., p. I85. Jus Decretalium, Parati, I (ed. 1905), I9. 30Pii X Pontificis Maximi Acta, III (Rome: Vatican Polyglot Press, I9o8), 24. 31Ibid., Vol. VI (I9II). 32 The Encyclicals of Pius XI, James H. Ryan (St. Louis, Mo: Herder), p. 44. Imprimatur of the Archbishop of St. Louis. 33Ibid., p. 153.
29

27Ibid., p. 126.

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THE JOURNALOF RELIGION

The foregoing assertions by the church of its supremacy, within the state, over the consciences of the people, are no more emphatic than its assertions of its supremacy, within the state, over the education of their children:

Encyclical Divini Ilius Magistri34-on the ChristianEducation of Youth-Pope Pius XI:

sharerin the "In faith and moralsGodhimselfhas madethe Church herimmunity from divinemagisterium, by a specialprivilege and granted and of error; sure,and hence,she is the mistress men,supreme absolutely in in she has inherent herselfan inviolable rightto freedom teaching.By is of the necessary consequence Church independent any sort of earthly of power,as well in the originas in the exercise her missionas educator. Not merelyin regardto herproperend and object,but also in regardto
the means necessary and suitable to attain that end .... the Church

as a perfectsocietyhas the independent to rightto the meansconducive the end." "The Church's missionto educateembraces everynationwithoutexand ception,and all men whetherwithin or withouther membership, thereis no poweron earththat may lawfullyopposeher or standin her way."
34Acta Apostolicae Sedis, February 22, 193o, p. 49.