Commonwealth not to legislate in respect to religion.

116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

UNITED STATES -No religious test shall ever be required as a qualification to any office or public trust under the United States -Art. VI, sec. 3.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.-Amendment I.

HISTORICAL NOTE.-Clause 16, Chap. V. of the Commonwealth Bill of 1891 was :— “A State shall not make any law prohibiting the free exercise of any religion. This was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr. Higgins moved an amendment to make the clause read: "A State shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance Mr. Higgins argued that these words might be necessary to prevent an implication, arising out of the recognition of Almighty God in the preamble, that the Commonwealth had power to legislate upon religious matters. The objections raised to the amendment were that the "free exercise of religion" was too wide an expression, and might sanction objectionable rites; and that the provision was unnecessary, as the Federal Parliament had no power to legislate as to religion. Mr. Higgins' amendment was negatived, as was also a suggestion by the House of Assembly in Tasmania, to add the words "nor appropriate any portion of its revenues or property for the propagation or support of any religion." The clause itself was then negatived. (Conv. Deb., Melb., pp. 654-64.) At a later stage Mr. Higgins proposed a new clause, in substantially the form of the above section. Mr. Symon moved, as an amendment, to substitute the following provision :-

"Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any public office or public trust under the Commonwealth."

After debate, Mr. Symon's amendment was negatived by 22 votes to 19, and Mr. Higgins' clause was carried by 25 votes to 16. (Conv. Deb., Melb., pp. 1769-79.) Drafting amendments were made after the fourth report.

The Commonwealth is forbidden to make any law for establishing any religion or for imposing any religious observance. A preliminary observation which should be made is that the term Commonwealth as used in this section does not mean the Federal community, but the Government of the Commonwealth acting through any of its agencies or instrumentalities. The people and States constituting the Federal community could at any time interpose and amend the Constitution in order to authorize the enactment, by the Federal Parliament, of the laws now prohibited. The prohibition itself and the circumstances under which it has found a place in the Constitution next demand attention.

By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship. The Christian religion is, in most English speaking countries, recognized as a part of the common law. "There is abundant authority for saying that Christianity is a part and parcel of the law of the land." (Per Kelly, C.B., in Cowan v. Milbourn [1867], L. R. 2 Ex. 234.) In America the courts of the Union and of the States find it necessary, in administering the common law, to take notice that the prevailing religion is Christian. (Vidal v. Girard's Executors, 2 How.

127.) Consequently the fundamental principles of the Christian religion will continue to be respected, although not enforced by Federal legislation. For example, the Federal Parliament will have to provide for the administration of oaths in legal proceedings, and there is nothing to prevent it from enabling an oath to be taken, as at common law, on the sanctity of the Holy Gospel. (Cooley's Principles of Const. Law, 224 )

In considering the question of religion, the Federal Convention was called on to decide (1) whether it was advisable to grant substantive power of this kind to the Federal Parliament; and if not, (2) whether it was necessary to deny this power to the Federal Parliament. As regards the first question, it was not seriously suggested that any such power should be granted. The only arguable point was whether it ought to be denied, and if so, to what extent? The Federal Parliament is a legislative body capable only of exercising enumerated powers. Its powers are determined and limited by actual grants to be found within the Constitution. Anything not granted to it is denied to it. If it is not granted the power to deal with religion, it cannot legislate concerning religion. It is superfluous to deny to it what is not granted— what it does not possess. The force of this reasoning, based on recognized canons of federal construction, was generally conceded. At the same time it was found that the American Constitution contained two important negative sections relating to religion. As originally drawn, that Constitution, in Art. VI., s. 3, declared that no religious test should ever be required as a qualification for an office or public trust under the United States Government. By the first amendment it was provided that Congress should make no laws respecting an establishment of religion or prohibiting the free exercise thereof. The prohibition of religious tests was a denial of power-a denial which was necessary, because otherwise there would have been nothing to prevent the Federal legislature, in defining the qualifications for federal office, to impose such tests. It was therefore a provision of practical use and value. The prohibition coutained in the first amendment was one of the ten articles in the so-called "American Bill of Rights" adopted after the establishment of the Union, in order to satisfy popular demands and sentiments. No logical or constitutional reasons have been stated why such a negation of power which had never been granted and which, therefore, could never be legally exercised, was introduced into the instrument of Government. It does not appear that its necessity has ever been demonstrated. Still, that was one of the grounds on which Mr. H. B. Higgins asked the Convention of 1898 to adopt the section now under consideration.

The strongest argument, however, for the adoption of the earlier portion of sec. 116, was found in the special form of the preamble of the Constitution Act, which recites that the people of the colonies, "humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Commonwealth." Referring to this recital, it was stated by Mr. Higgins that, although the preamble to the Constitution of the United States contained no such words as these, it had been decided by the courts in the year 1892 that the people of the United States were a Christian people; and although the Constitution gave no power to Congress to make laws relating to Sunday observance, that decision was shortly afterwards followed by a Federal enactment declaring that the Chicago Exhibition should be closed on Sundays. This law, he said, was passed simply on the ground that among Christian nations Christian observances should be enforced. (Conv. Deb., Melb., p. 1734.) If, then, such Federal legislation could be founded on a Constitution which contained no reference whatever to the Almighty, how much more likely was it that the Federal Parliament might, owing to the recital in the preamble, be held to possess power with respect to religion of which we have no conception. Consequently, argued Mr. Higgins, the power to deal with religion in every shape and form should be clearly denied to the Federal Parliament. These arguments were allowed to prevail, and the provisions of sec. 116 became part of the Constitution. (See, however, note, § 4, supra, “Humbly relying on the blessing of Almighty God," and Church of the Holy Trinity v. United States, 143 U.S. 457, there cited.)

The appearance of this section in a chapter purporting to deal with the States is

somewhat anomalous; it can only be accounted for by the fact that it took the place of clause 15 of Ch. V. in the Draft Bill of 1891, which declared that a State should not prohibit the free exercise of any religion. How such a clause crept into the Bill of 1891 it is difficult to conjecture. It was rejected without hesitation by the Convention of 1898, which saw no reason or necessity for interfering with the States in the free and unfettered exercise of their power over religion.

Whilst the Constitution forbids the Federal Parliament to interfere with the free exercise of religion, it does not make any provision for protecting the citizens of the States in their religious worship or religious liberties; this is left entirely to the State Constitutions and laws, and there is no inhibition in regard to the subject imposed upon the States. (Permoli v. First Municipality, 3 How. 589; Ex parte Garland, 4 Wall. 398. Baker, Annot. Const. p. 179.)

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, and this section cannot be invoked as a protection against legislation for their punishment. (Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333. İd.)

"In the great case of Reynolds v. United States, the constitutional immunity of the individual in respect to the freedom of religion and worship was fixed and defined. The court declared that by this constitutional restriction Congress is deprived of legislative power over opinion merely, but is left free to reach actions which it may regard as violations of social duties or as subversive of good order. The free exercise of religion secured by the Constitution to the individual against the power of the government is, therefore, confined to the realm of purely spiritual worship; i.e., to relations between the individual and an extra-mundane being. So soon as religion seeks to regulate relations between two or more individuals, it becomes subject to the powers of the government and to the supremacy of the law; i.e., the individual has in this case no constitutional immunity against governmental interference." (Burgess, Political Sc. I. p. 194.)

An appropriation of money to a hospital conducted by a Roman Catholic sisterhood is not a law respecting an establishment of religion. (Bradfield v. Roberts, 175 U.S. 291.)

464

Rights of residents in States.

117. A subject of the Queen, resident in any State 46, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

UNITED STATES.-The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. - Const., Art. IV., sec. 2.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deny to any persons within its jurisdiction the equal protection of its laws.-Fourteenth Amendment, sec. 1. HISTORICAL NOTE.-Clause 17, Chap. V., of the Commonwealth Bill of 1891

was:

"A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws."

At the Adelaide session, 1897, this was adopted verbatim. At the Melbourne session, it was proposed, on the suggestion of the Legislative Assembly of New South Wales and the Legislative Council of Tasmania, to omit the first portion. No one was able to suggest a privilege or immunity of a citizen of one State which could be abridged by a law of another State, and it was pointed out that there was no definition of citizenship. Mr. Barton and Mr. Wise wished to give the citizens of each State the privileges and immunities of citizens of the other State; Mr. Reid and Mr. Symon said that this would be an interference with the independence of States, and that the Convention was only concerned with protecting the federal citizenship. Mr. Wise, as a test question.

moved the first few words of an amendment suggested by the House of Assembly in Tasmania, based on the fourteenth amendment of the American Constitution, and declaring that the citizens of each State should be citizens of the Commonwealth, and entitled to all the privileges and immunities of citizens of the Commonwealth in the several States. After debate, this was negatived by 24 votes to 17; and the words dealing with privileges and immunities were then struck out. An amendment by Mr. O'Connor, to add "deprive any person of life, liberty, or property without due process of law," was negatived by 23 votes to 19. An amendment by Mr. Glynn, to add "deny to the citizens of other States the privileges and immunities of its own citizens,” was also negatived, and the whole clause was struck out. (Conv. Deb., Melb., pp. 664-91.) At a later stage Dr. Quick moved to insert in the " 'powers of Parliament" clause a new sub-clause "Commonwealth citizenship." The importance of the question was recognized; but there were three different opinions expressed :—(1) That the Parliament should have power to deal with the question; (2) that citizenship ought to be defined in the Constitution itself; (3) that the rights of citizenship were already secured in the Constitution, and that citizenship itself had never been defined in Great Britain, and was better not defined. The sub-clause was negatived by 21 votes to 15. (Conv. Deb, Melb., pp. 1750-68.) On the reconsideration of clauses, Mr. Symon moved, in place of the clause struck out, to insert: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Dr. Quick moved as an amendment to insert a definition of Commonwealth citizenship:-" All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth." This was thought too wide, and opinions were expressed that the better plan would be to empower the Parliament to deal with the question. Mr. O'Connor then moved to insert :-" Every subject of the Queen, resident in any State or part of the Commonwealth, shall be entitled in any other State or part of the Commonwealth to all the privileges and immunities to which he would be entitled if a subject of the Queen resident in that latter State or part of the Commonwealth." This was objected to as being too wide, and making residence in one State equivalent to another, for all purposes. It was suggested that the clause should be put negatively, instead of affirmatively, and Mr. O'Connor then proposed it as follows:-"No subject of the Queen, resident in any State, shall be subject in any other State to any disability or discrimination not equally applicable to the subjects of the Queen in such other State." This was agreed to. (Id. pp. 1780-1802.) After the second report Mr. Deakin moved to substitute "such" for "the" before subjects," in order to indicate to the Drafting Committee that State rights of defining citizenship were not interfered with. This was agreed to. Drafting amendments were made after the fourth report.

§463. "A Subject of the Queen."

The clause of the Bill of 1891, cited above, provided that a State should not make or enforce any law abridging any privilege or immunity of citizens of other States, nor deny to any person, within its jurisdiction, the equal protection of the laws. The framers of that clause did not define State citizenship, as distinguished from municipal citizenship. The term citizen was a novel one in the connection in which it was used. The clause was constructed out of pre-existing materials to be found in two clauses in the Constitution of the United States, viz., (1) "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." (Art. IV. sec. 2.) (2)" Nor shall any State . . deny to any person within its jurisdiction the equal protection of the laws." (Fourteenth Amendment, sec. 1.)

Referring to the importance of the first of these provisions, Von Holst says :—“ To it is chiefly due the fact that, step by step with the progressive development of the United States, the practical nationalization of the people proceeds." (Const. Law, p. 247.) The marginal note to the clause of the Draft Bill referred to reads:-" And

protection of citizens of the Commonwealth;" that note is not warranted by the clause itself, which did not mention a citizenship of the Commonwealth, but only protected the privileges and immunities of citizens of States.

Sec. 117 of the present Constitution represents the modest outcome of an attempt on the part of the Convention of 1898 to improve the work of 1891, and to establish a status capable of being designated "Federal citizenship." It was suggested that in a federal Commonwealth, such as was being called into existence, there should be a fullbloomed national citizenship above and beyond and immeasurably superior to State citizenship. A person might be a domiciled resident of a State and an elector for a State, but at the same time he would occupy a broader and more dignified relationship in his membership of the great federated community, of which the States were separate parts and entities; and that relationship ought to be expressly defined. These contentions, apparently logical, were not sustained. Membership of the federal Commonwealth may, as a legal relation, be deduced from the Constitution, but it is not expressed there in the concrete form which the advocates of the foregoing views proposed.

According to the root meaning of the word, as well as its original use, a citizen was a member of a city. The political life of ancient Greece knew nothing higher or more developed than a city commonwealth, which occasionally combined with other city commonwealths in a kind of Federal Union. The independent self-ruling city was the political unit and the political ideal. A citizen was a member of a city state. The city was, to the Greek, his all in all; he was above all things a citizen. His political career and horizon were restricted to a city community. (Freeman's Greater Greece and Greater Britain, p. 18.) The Greek felt the tie of membership of such a community, with all the duties which sprang from membership. He owed faith and loyalty to his city--loyalty in its true and ancient sense of obedience to the law. The tie was local ; the duty was local; of a tie of personal allegiance, binding and subjecting him to a personal superior-of loyalty in that sense the old Greek, the Phoenician never had any thought or experience (id. pp. 19-20.)

In the Roman Republic the term "civitas" expressed the bundle of rights and obligations connoted by citizenship; the conceptions involved in the Roman civitas implied citizenship in an enlarged sense, as denoting not the membership of a city state, as known to the Greeks, but the membership of a complex and highly organized political community which, beginning in the city of the Seven Hills, expanded into a national republic, which united all Italy and then all the known world into one Empire. According to Roman law men were originally divided into citizens (cires) and aliens (perigrini). The rights of citizens fell into two branches, political and civil. Political rights were those relating to the electoral and legislative powers (jus suffragii) and capacity for office (jus honorum); civil rights related to property (commercium) or to marriage (connubium). Aliens were deprived of political rights. They were also refused proprietary and family rights, except to a limited extent. (Poste's Gaius, p. 176.)

In the middle ages, during which the monarchies of modern times grew and became organized, personal allegiance or subjection became the tie which bound the people together, causing them to rally round and acknowledge a leader, who in return for allegiance and service afforded them his protection. Allegiance and subjection were then the test of membership of a political community. The members of such a community owing personal duty to a single sovereign were called "subjects." That relationship was one that could not be acquired or lost without the permission of the personal sovereign.

"By the English common law, founded on the principle of feudal ligeance and homage, none were admissible as natural-born subjects, if they were not born in a place actually possessed at the time of their birth, either by the king himself or by some prince doing homage to him for it; except, first, the children of any subjects born beyoud sea who at the birth of those children should be in the service of the Crown; secondly, the sovereign's children born during the royalty of their parents; and, thirdly,