State legislature were to prohibit interstate commerce by putting an embargo on imports from a neighboring State." In the common law it is an undisputed principle that the courts may declare an enactment of the legislature null and void, without being obliged to rely on any constitutional provision, where the legislature had no jurisdiction of the persons or subject-matter involved. Not only the State legislature has no jurisdiction over spiritual matters, but the courts of a State also have no such jurisdiction and by their decrees thereon cannot affect the rights and duties of parties. Madison said as much when he stated in his Memorial and Remonstrance: * * * 5. Because the bill implies either that the civil magistrate is a competent judge of religious truth; the contradictory opinions of Rulers in all ages, and throughout the world (this) is an arrogant pretension falsified by * * * ' (supra). The Massachusetts case of Carter versus Papineau et al,12 definitely stands for the proposition that a secular court has no jurisdiction over a spiritual matter. Effie A. Carter, the wife of Frank Albert Carter of the village of Cochituate in the town of Wayland, in the State of Massachusetts, brought suit, in 1913, for failure to give her communion, against Arthur Bradford Papineau, the rector of St. George's Church of Maynard, who conducted the services of the Episcopal mission in Wayland and William Lawrence, Bishop of Massachusetts (of the Protestant Episcopal Church of America.) She claimed that on or about August 20, 1911, she was a communicant of the Protestant Episcopal Church of America and was lawfully entitled to be present and participate in the services of that church; that on that day she entered a certain building used as a place of worship by that church in Wayland, where she was accustomed to worship, and at the proper time and in a proper manner came forward to partake of the Holy Communion; but "that the defendants then and there, without cause and without any notice or warning to her, or any charge against her, or any hearing or opportunity by her to be heard, refused to adminiser to her 'Holy Communion and repelled her from the Lord's Table without cause, whereby the plaintiff says that the defendants have held her up to public disgrace, humiliation, and shame, and have in effect represented that she was an open and notorious evil liver, and the congregation has thereby been offended, and that she was an unfit person to enter and worship in said church." The Protestant Episcopal Church of America has a body of canons or ecclesiastical law of its own, by which the plaintiff upon baptism and confirmation agreed to be bound, and under which her rights of worship must be determined. By the "rubric in the order for the administration of the Lord's Supper, or Holy Communion", the "minister" is given authority to refuse the rite to anyone whom he knows "to be an open and notorious evil liver, or to have done any wrong to his neighbors by word or deed." By "Canon 40. Of Regulations Respecting the Laity," section II, "When a person to whom the sacraments of the Church have been refused, or who has been repelled from the Holy Communion under the rubrics, shall lodge a complaint with the bishop, it shall be the duty of the bishop, unless he see fit to require the person to be admitted or restored because of the insufficiency of the cause assigned by the minister, to institute such an inquiry as may be directed by the canons of the diocese or missionary district, and should no such canon exist, the bishop shall proceed according to such principles of law and equity as will insure an impartial decision, but no minister of this church shall be required to admit to the sacraments a person so refused or repelled, without the written direction of the bishop. The rector had written a letter addressed to Mrs. Carter and before the service he had approached Mrs. Carter in the church and had offered her the letter. She refused to accept it. He placed it on a seat in front of her with the request: "I want you to read that before the service goes on." receive communion "until you satisfy me, or my successor or superiors of your The letter forbade her to repentance and amendment." Canon 16 gave to the rector control of the worship and spiritual jurisdiction of the mission "subject to the authority of the bishop." Before she brought suit in the State court, Mrs. Carter had her lawyer write to the bishop, complaining of the rector, and requesting the bishop's intervention. Obtaining no satisfaction from the bishop, she brought suit for damages for refusa I to give her communion, and also sought additional damages for being prevented by a constable from entering the church on two other occasions. The case was tried before a jury. At the close of the evidence, the judge, at Mass. 464 (1916). the request of the defendants, ruled that, as matter of law, the plaintiff could not recover on either count and ordered verdicts for the rector and the bishop. Mrs. Carter brought her case to the Supreme Judicial Court of Massachusetts. The Supreme Court decided against her on the ground that it had no jurisdiction over the matter, at least not until she had pursued the matter to a conclusion in the bishop's court. Mr. Justice Braley, speaking for the Supreme Judicial Court of Massachusetts, said in part: "The plaintiff has not availed herself of this right of appeal to the only personage having the requisite ecclesiastical authority to review her standing as a member and communicant or to pass upon her ceremonial rights in accordance with the principles of 'law and equity.' * * * The letter of her counsel to the bishop, to which no reply appears to have been made, cannot be considered as an appeal which had been denied. It contains only recitals of all her grievances, for the rectification of which his friendly intercession is requested. "But if an appeal had been properly taken and the decision had been adverse, the plaintiff would have been remediless, for in this Commonwealth her religious rights as a communicant are not enforcible in the civil courts. * * This Massachusetts case is the only decision on this particular sacramental phase of the subject in the United States. There are two English cases on the point: Rex v. Dibdin ((1910) P. D. 57)), and Thompson v. Dibdin ((1912) A. C. 533). In a note in 29 Harvard Law Review (March 1916) 560, on the Carter versus Papineau case, it was said: "In England, the union of church and state gives the secular courts an appellate jurisdiction from the tribunals of the established church. Rex v. Dibdin ((1910) P. D. 57), Thompson v. Dibdin ((1912) A. C. 533). In America, however, when civil rights are not involved, the secular courts have no jurisdiction over ecclesiastical disputes. Fitzgerald v. Robinson (112 Mass. 371). See Shannon v. Frost 3 B. Mon. (Ky) 253, 258). * * * if there is a right of appeal to a higher ecclesiastical authority, the courts will not give relief until that right has been exhausted. German Reformed Church v. Commonwealth (3 Pa. St. 282). See McGuire v. St. Patrick's Cathedral (54 Hun. 207, 220, 7 N. Y. Supp. 345, 351). * * *"" Mr. Justice Miller, in the leading case of Watson versus Jones, 13 speaking for the United States Supreme Court, said: "In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. * *. We cannot better close this review of the authorities than in the language of the Supreme Court of Pennsylvania, in the case of German Reformed Church v. Seibert (41 Pa. 21): * "The decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals * * * "" It was not necessary for the minority of the United States Supreme Court in the Everson case to base their opinion on the establishment-of-religion clause of the first amendment. These judges might have argued more logically, if not any more successfully, the proposition that the transportation of the children to the Catholic parochial schools was a spiritual matter over which the State of New Jersey had no jurisdiction, therefore its legislation imposing the tax was "impertinent to be observed," and consequently the act was null and void. The present authors take the position that, without qualification, such transportation is not a spiritual matter, but, on the contrary is a temporal matter, over which the State has exclusive jurisdiction and so may impose the tax. Under the Constitution of the United States, the States cannot create interests if they have no jurisdiction. These are the words of section 43 of Restatement of 80 U. S. (13 Wall.) 679 at 727, 732; 20 L. ed. 666, at 676-678. 1 the Law Of Conflict Of Laws as adopted and promulgated by the American Law Institute, in 1934. The institute made the following comment: "(a) Effect of fourteenth amendment to Constitution. If a State attempts to exercise power by creating interests with respect to persons or things which it has no jurisdiction to create, its action is in violation of the fourteenth amendment to the Constitution and is void in the State itself. The Supreme Court of the United States may review all cases whether from a lower Federal court or from a State court of last resort which involve a question of the exercise of power on the part of a State when it has no jurisdiction. It is submitted that it would show better legal scholarship for the United States Supreme Court to decide these cases on the jurisdictional approach rather than on the constitutional approach, especially in view of the fact that in order to make the fourteenth amendment effective in the proposition of law set forth in section 43, supra, lack of jurisdiction must first be shown, and once lack of jurisdiction is established, there is no need to argue the constitutional law question. Roger Williams, brilliant and learned minister, had emigrated from England to Massachusetts early in the seventeenth century. He preached that the civil government had no jurisdiction over religious matters. This doctrine disturbed the governmental officials of Massachusetts, and Williams was ordered to leave the colony. He moved to a sport where the city of Providence is now located. There, with othert who had joined him, he started a new settlement. The colonists entered into the following compact: "We whose names are hereunder, desirous to inhabit the town of Providence, do promise to subject ourselves in obedience to all such orders as shall be made for the public good by the major consent of the present inhabitants and others whom they shall admit unto them, only in civil things." Commenting on this compact, S. E. Forman, in Advanced American History, at page 41, says: "In this compact we see the great idea for which Williams stood, namely, the separation of church matters from state matters. In Providence the government was to have authority only in ‘civil things'; in respect to religious affairs it was to have no power whatever." Under the laws of the United States today the jurisdiction of a church in purely spiritual matters is exclusive of the jurisdiction of the State in which the church is located. The jurisdiction of the State in temporal matters is per se exclusive of the jurisdiction of the church. A church has jurisdiction only over persons who are members of that particular church and over nonmembers who have consented or subjected themselves to the exercise of jurisdiction over them. The Catholic church particularly claims jurisdiction over persons by baptism. "By baptism a person becaomes a subject of the church of Christ with all the rights and duties of a Christian, unless, in so far as rights are concerned, there is some obstacle impeding the bond of communion with the church, or a censure inflicted by the church" (Canon 87). Ever mindful of the limitations upon her jurisdiction this same church legislates: "Laws which are purely ecclesiastical in their nature do not bind unbaptized persons, nor baptized persons who do not have sufficient use of reason, nor baptized children who have the use of reason but are under 7 years of age, unless the law explicitly rules otherwise." (Canon 12.)14 A State has jurisdiction over a person if he is within the territory of the State, if he is domiciled in the State although not present there, or if he has consented or subjected himself to the exercise of jurisdiction over him either before or after the exercise of jurisdiction. These two jurisdictions are mutually exclusive, the jurisdiction of different sovereigns. In the exercise of their jurisdictions the church and the state can affect the rights and duties of those subject to their jurisdictions by legislation, by executive decree, or by a judgment of their courts. More recently in the United States the majority of judicial controversies involving the principle of separation of church and state have been raised in criminal prosecutions under State statutes or municipal ordinances which make certain 14 The Catholic church claims jurisdiction over its members in temporal matters bound to spiritual matters as well as in purely spiritual matters. See note 7, supra. As to cases of mixed jurisdiction, cf. The Jurist, IV (1944), 551, 552; canon 1553, sec. 2. As to the baptized non-Catholic, through baptism he has fundamentally subjected himself to the juris diction of the Catholic church. However, in virtue of custom or epikeia the tacit exemption of those who are in good faith may be assumed in regard to laws that are not invalidating or disqualifying. Cf. Cicognani Canon Law (trans. O'Hara and Brennan, Philadelphia; the Dolphin Press, 1935), 568, 569. 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." 15 * 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 *7719 15 See Freedom of Religion, by O'Brien and O'Brien, in The Jurist, VI (1946), passim. 19 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. 19 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 denomina. tions to be sovereigns and have exclusive jurisdiction over spiritual matters within their respective Spheres." 1947 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." 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. Rev. KENNETH R. O'BRIEN. APPENDIX 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, this one from Charles E. Babcock of Vienna, Va. Mr. Babcock. 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. Freedom of Religion, in The Jurist, VI (October 1947), 303. The concept, freedom of religion, and the nagupe, separation of church and state, have several common constituents. |