acts by churches or members thereof a crime. Almost invariably these defendants contend that the State statutes or municipal ordinances are unconstitutional as in contravention of that clause of the first amendment which provides: "Congress shall make no law * * * prohibiting the free exercise (of religion)." It is submitted that, here too, the more scholarly approach in these controversies between the church and the state should be, at the inception at least, one presenting the principles, as set forth in interchurch-and-state common law, and not the constitutional law approach. The restrictive force of the first amendment is not a delimitation of an existing jurisdiction in the Government to create interests in religion. The Government never possessed such jurisdiction.15 The traditional teaching of the Catholic church makes an interesting comparison with the juridical propositions in favor of separation of church and state advanced by Jefferson, Madison, Bracton, Justices Frowyke, Miller, and Brayley, the minister, Mr. Williams, and countless others, judges, canonists, philosophers, scholars. Scholars of church history teach that the foundation of the church caused deep changes in the social and juridical life of the human race. A new juridical concept and order was placed in the framework of society. The church as founded by Christ revolutionized the social concepts of antiquity. Christ introduced new concepts: (1) A separation of religion from the national and political sphere; and (2) a separation of ecclesiastical law from the national and political sphere. The national aspect of religion was stressed before the time of Christ. The Roman Empire stressed a cosmopolitan aspect of religion, because in the Pantheon all religions of all conquered peoples were practiced. The Jewish religion and state were national. With the foundation of the church came the idea of a supranational religion for all people of all times and of all nations without respect to national boundaries. An autonomous supranational religious law entered the world with the foundation of the church by Christ. For the first time in history there was a Socifetas Perfecta (sovereign society) that was not the state.16 Leo XIII, speaking for the Catholic Church, said: 17 "God has divided the government of the human race between two authorities, ecclesiastical and civil, establishing one over things divine, the other over things human. Both are supreme, each in its own domain; each has its own fixed boundaries which limit its activities * * *. Everything, therefore, in human affairs that is in any way sacred, or has reference to the salvation of souls and the worship of God, whether by its nature of by its end, is subject to the jurisdiction and discipline of the church. Whatever else is comprised in the civil and political order, rightly comes under the authority of the state; * * *"" On this point Rev. James P. Kelly, J. C. D., says: "With regard to human law, the church adheres to the doctrine that all authority is from God, and that in God's plan for the orderly government of the world, He has delegated His authority to two perfect sovereign societies. Each of these sovereign societies is independently and exclusively competent to regulate the affairs of men within its own sphere. These two sovereign powers are the church and the state. The church was established by God for the spiritual welfare of man in this world and to lead him to an eternity of happiness in heaven. The state was constituted as the supreme authority for the temporal welfare of man in this world. The legitimate civil authority, which we shall call the state, is considered by the church to have been granted authority from God to legislate, administer, and pass judgment within its own sphere, but that sphere is confined to the temporal welfare of man in this world to the exclusion of his own spiritual welfare, and the means established by God to lead man to eternal life." 18 * * * Dean Pound says: "In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign, that is, of a politically organized society, was fundamental. It seemed as natural and inevitable to have church courts and state courts, each with their own field of action and each, perhaps, tending to encroach on the other's domain, but each having their own province in which they were paramount, as it seems to Americans to have two sets of courts, Federal courts and State courts, operating side by side in the same territory, each supreme in their own province * * 19 15 See Freedom of Religion, by O'Brien and O'Brien, in The Jurist, VI (1946), passim. 16 From unpublished lectures by Stephen Kuttner, J. U. D., professor of History of Canon Law, Catholic University of America. 17 Ep. encycl., Immortale Dei, Nov. 1, 1885. See Four Great Encyclicals (1931 edition published by the Paulist Press), at pp. 52 and 53. 18 "Marriage, Divorce and Annulments," The Jurist, IV (1944), 246, 247. The Catholic church holds unswervingly to the doctrine that it is the one true church. However, the members of this church realize that the secular law in the United States considers churches of all denominations to be sovereigns and have exclusive jurisdiction over spiritual matters within their respective Spheres,' 19 47 Harvard Law Review 1, at p. 6. It is only in very recent years that the United States Supreme Court has been experiencing manifest difficulty in cases involving the respective jurisdictions of state and church. The decisions and opinions in the Jehovah's Witnesses cases have been markedly divergent. The recent decision upholding the claimed privilege of a minister of a church to enter without permission upon the land of another for the purpose of exercising his religion by orally preaching, by playing phonograph records of sermons, by manually delivering printed sermons, or otherwise, was, according to Mr. Justice Reed: ** * * the first case to extend by law the privilege of religious exercises beyond public places without the assent of the owner. This case was discussed by the authors hereof in a previous article.20 The Everson case has apparently given the present nine justices of the United States Supreme Court even more trouble. It would appear that a thorough resurvey is in order of the entire subject of freedom of religion and of separation of church and state from the time of Bracton to the present day. It is respectfully submitted that unless the United States Supreme Court speedily adopts the true doctrine of separation of church and state, the doctrine based on the separation of their respective jurisdictions, the Court's future decisions on religious controversies will cause large segments of the people of this country the utmost anxiety. Los ANGELES, CALIF. APPENDIX Rev. KENNETH R. O'BRIEN. Press reports following the Everson decision indicate that of the 48 States, 15 have legislation which authorizes or requires, in one form or another, transportation for parochial-school pupils, and 24 States limit their transportation to public schools only. The 15 States authorizing transportation for non-public-school pupils are California, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, Montana, New Hampshire, New Jersey, New York, Oregon, and Rhode Island. In Colorado, Louisiana, and Minnesota the State attorneys general have ruled that their general transportation statutes permit private-school pupils to ride on the public-school busses. In Maine, North Dakota, and South Dakota the attorneys general have ruled to the contrary. The 24 States which limit their transportation to public-school pupils only are Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Idaho, Mississippi, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. In Iowa the school-bus statute is ambiguous, conflicting opinions of attorneys general are in existence, and litigation is pending. In Texas, litigation is also pending to clarify the meaning of the statute. In the State of Washington the statute specifically provides for private-school children, but a prior statute was held unconstitutional and legal action is pending on the present law. Courts in four States, California, Kentucky, Maryland, and New Jersey, have held statutes valid; six, Delaware, Iowa, New York, Oklahoma, Wisconsin, and Washington, have held statutes invalid. Senator AIKEN. We have just one other request, I understand, one from Charles E. Babcock of Vienna, Va. Mr. Babcock. this STATEMENT OF CHARLES E. BABCOCK, CHAIRMAN, NATIONAL LEGISLATIVE COMMITTEE, JUNIOR ORDER UNITED AMERICAN MECHANICS OF THE UNITED STATES OF NORTH AMERICA Mr. BABCOCK. Mr. Chairman and members of the committee: I want to thank you for giving me this opportunity to take up some of your busy time, for giving me just a minute or two. 30 Freedom of Religion, in The Jurist, VI (October 1947), 503. The concept, freedom of religion, and the oncept, separation of church and state, have several common constituents. I am national legislative chairman of the national legislative committee of the Junior Order of United Mechanics with headquarters in Philadelphia at 2930 North Broad Street, Philadelphia 32. I am here at the request of our national board of officers who are the executive body of our organization between the periods of our national councils which occur biennially. The Junior Order is composed of 1,500 lodges or councils throughout the United States. It is a patriotic fraternity of American citizens, voters and potential voters. It has 94 years of very loyal service to the people of the United States in the matter of education, immigration, and naturalization without the hope of any compensation direct to ourselves. We are opposed to all of these bills, gentlemen, and any other bills which have for their tendency the giving a Federal official authority over the authority of the school educational systems. We are in favor of schools, for their improvement and development where those schools are limited to free public schools. But we are very seriously concerned over the propaganda and the inroads for which the free public schools are being used as a vehicle to break down our heritage of the separation of church and state. I would like, gentlemen, to insert, as a conclusion of my comment, an article which begins: There should be burned into the minds of every American citizen those words of James Madison in his immortal Memorial and Remonstrance against any taxation whatsoever to support any religious schools or any religion. The balance of this, if I may, is taken from the Bulletin of the Friends of the Public Schools, printed in Washington, D. C., May 1946, and I would like to turn this into the stenographer as my concluding remarks. Senator AIKEN. It will be included. (The article referred to follows:) THE FIGHT TO KEEP CHURCH AND STATE SEPARATE THE HIDDEN DANGER IN THE NEW JERSEY BUS DECISION There should be burned into the mind of every American citizen these words of James Madison in his immortal Memorial and Remonstrance against any taxation whatsoever to support any religion or any religious schools: "They saw all the consequences in the principle and they avoided the consequences by denying the principle.' "We need", as Dr. Herty, a great American chemist who showed the world how to make good paper out of scrub pine, said, "To think it through.' Or as Lincoln said,we need to "know where we are,' ," and "whither we are tending" before we decide "what to do and how to do it." And so in order to clarify this "free buses" for parochial school children we are going back far enough in history to show "whither we are tending" and why. As we have shown in four articles on this subject, Roman Catholics are now, since Pope Pius XI's encyclical of December 31, 1929, emphasizing the "Families' rights in choosing schools for the children in those "families." Why not "parents"? We don't know. We have delved deeply into only one other encyclical of the Roman Catholic Church but, so far as we have read, the "rights of families" has not been emphasized if indeed they were mentioned in encyclicals until after the decision of the Supreme Court in the Oregon School case in 1925. That decision was to the effect that parents had the right to send their children to the school of their choice. But the Supreme Court laid down five conditions that all schools for American children must abide by, in order to be acceptable to the Court. They are 1. The State has the right "reasonably to regulate all schools, surpervise, and examine them, their teachers and pupils." (We have seen no Roman Catholic mention of this proviso, and from their other utterances suspect they want to forget it and hope all others do.) 2. "to require that all children of proper age attend some school." 3. "That teachers shall be of good moral character and patriotic disposition." (How about Communist teachers and Communist schools?) 4. "That certain studies plainly essential to good citizenship must be taught." (Remember this when you read what Pope Leo XIII had to say of American ideals in 1884.) 5. "That nothing be taught which is manifestly inimical to the public welfare." The decision in the Oregon School case is relied on by the Roman Catholics to justify their right to operate parochial schools. But while they pay lip service to the "families" rights (not parents) they avoid mention of these other requirements except No. 2, that all children must attend some school. The Oregon decision gives no right to the "church" to compel Roman Catholics to send their children to the "church's" parochial schools. And so while Pope Pius XI pays lip service to the "families" he puts the "church" first and forbids Catholics to send their children to public schools under penalty of severe discipline. Remember Pope Pius XI wrote his encyclical over 4 years after the Oregon School decision. The Catholic Church had time to study it and apparently decided they better play up the "families" to the public but firmly and quietly maintain the "church's" claim to first consideration. Pope Leo XIII, 41 years before the Oregon decision, made a vicious attack on all secret societies, but especially the Masons, and took occasion to condemn the fundamental ideas on which out government is founded as set forth in the Declaration of Independence. He condemns the Masons as wanting to direct the education of children to "be citizens" of the "State," according to the ideals which he condemns. And he adds rather plaintively that they (the Masons) do this without leaving "to ministers (priests) of the church any part either in directing or watching them." Pope Leo XIII wrote the following concerning Masons and their ideals"The sect of the Masons aims unanimously and steadily also at the possession of the education of children. They understand that a tender age is easily bent (so does the R. C. "Church") and that there is no more useful way of preparing for the State such citizens as they wish. Hence, in the instruction and education of children, they do not leave to the ministers of the church any part either in directing or watching them * * *. 66* * * Here naturalists teach that men have all the same rights, and are perfectly equal in condition; that every man is naturally independent; that no one has a right to command others; that it is tyranny to keep men subject to any other authority than that which emanates from themselves. Hence the people are sovereign; those who rule have no authority but by the commission and concession of the people; so that they can be deposed, willing or unwilling, according to the wishes of the people. The origin of all rights and civil duties is in the people or in the State, which is ruled according to the new principles of liberty. The State must be godless; no reason why one religion ought to be preferred to another; all to be held in the same esteem. "Now it is well known that Freemasons approve these maxims, and that they wish to see governments shaped on this pattern and model needs no demonstration." Notice there is no mention by Pope Leo XIII of "families" nor does he say the State has the right to "inspect and examine teachers and pupils." Note also in next to the last sentence he says in the negative form that Masons refuse to prefer the Roman Catholic religion to all others. Just compare the Pope's complaint against Masons and naturalists with the first part of the Declaration of Independence and see how exactly they agree. Did Pope Leo XIII hate our Declaration of Independence? "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed * * * "" The closing sentence of the Declaration reads "And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor." Thomas Jefferson who wrote the Declaration of Independence was a Mason. You find no Godlessness in that Declaration. Through it all, as in Pope Pius XI's encyclical on education that is now quoted by bishops and others, runs the claim of the Roman Catholic Church as the only true religion and that it has a "divine right" to "direct all education, regardless of government.' That's the claim and aim-to make over the United States to a Catholic Church state. Madison, Monroe, Jefferson, and the other great patriots who made our government thought they had forestalled any such idea. Anyhow, they set us the example of how to stop the movement, and we are going to do it. The issue is now irrevocably joined and we, opponents of any sort of union of church and state 85 percent strong, must push the fight as Jefferson and Madison did in 1785 and '86. How completely the Revolution was started and fought by Protestants and likewise how completely the writing of the Declaration of Independence and the Constitution, as well as the setting up of the government, was the work of Protestants, is shown by the following figures. In School and Church by Conrad Moehlman, page 70, it is stated that when the 1790 census of the United States was taken, "Catholicism represented less than 1 percent of the population.' Indeed it is stated that as late as 1829, "in percentage," the Roman Catholic population had increased to only 2.8 percent. These are of interest principally to show that in the beginning the United States was more than 99 percent Protestant, including, of course, those who believe in no religion. These latter, however, were probably less numerous than the Catholics Then we must always remember that the Virginia bill of rights, which forbade any "assessment," no matter how small, to support any church or church school, was aimed not at the Roman Catholic Church but at the claims of certain protestant churches, and we might add that the majority of the signers of both the Declaration of Independence and the Constitution were Masons. Masons do not boast of these facts, but since the Roman Catholic Church assumes to bitterly attack the Masons and to try to overthrow the laws established under the Constitution, which certainly was greatly influenced in its writing by Masons, it is both right and proper that the Nation as a whole should understand these. figures and these facts leading up to the adoption of our form of Government. Senator DONNELL. The Remonstrance to which you refer is the one to which the minority opinion of the Supreme Court refers, the one they caused to be appended in the recent case of Everson versus the Board of Education? Mr. BABCOCK. It has a hidden danger, the New Jersey bus decision. Senator DONNELL. I understood you were giving a quotation from Madison, is that right? Mr. BABCOCK. That is the opening sentence to the article which I ask be included in the record. The article is factual, conservative, and largely historical. It is a very interesting item. Senator AIKEN. Thank you, Mr. Babcock. This completes the hearing for the morning. We will recess until tomorrow morning at 10 o'clock at which time six more witnesses will be heard, including Mr. Hilton Jackson, Miss Pearl Wannamaker, Mrs. Margaret Worrell, Mrs. Ethel Grubbs, Mr. W. R. Ogg, and Mrs. Roy Weagly. (Whereupon, at 11:55 a. m., the subcommittee adjourned until 10 a. m. Wednesday, April 30, 1947.) 60144-47-pt. 1- -28 |