These constitutions, therefore, have not established religious toleration merely, but religious equality; in that particular being mon place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction what ever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation or society with which the church or the members thereof are connected." Walworth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 296, 301, 24 Am. Dec. 223. See Ferraria v. Vasconcellos, 31 Ill. 25; Lawyer v. Cipperly, 7 Paige, 281; Shannon v. Frost, B. Monr. 253; German, &c. Cong. v. Pressler, 17 La. Ann. 127; Sohier v. Trinity Church, 109 Mass. 1; Calkins v. Cheney, 92 Ill. 463. Equity will not determine questions of faith, doctrine, and schism unless necessarily involved in the enforcement of ascertained trusts. Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84. Such a corporation is not an ecclesiastical, but merely a private civil corporation, the members of the society being the corporators, and the trustees the managing officers, with such powers as the statute confers, and the ordinary discretionary powers of officers in civil corporations. Robertson v. Bullions, 11 N. Y. 243; Miller v. Gable, 2 Denio, 492. Compare Watson v. Jones, 13 Wall. 679. The church connected with the society, if any there be, is not recognized in the law as a distinct entity; the corporators in the society are not necessarily members thereof, and the society may change its government, faith, form of worship, discipline, and ecclesiastical relations at will, subject only to the restraint imposed by their articles of association, and to the general laws of the State. Keyser v. Stansifer, 6 Ohio, 363; Robertson v. Bullions, 11 N. Y. 243; Parish of Bellport v. Tooker, 29 Barb. 256, 21 N. Y. 267; Burrel v. Associated Reform Church, 44 Barb. 282; O'Hara v. Stack, 90 Pa. St. 477; Warner v. Bowdoin Sq. Bapt. Soc.; 148 Mass. 400, 19 N. E. 403. In New Hampshire the signers of the articles of association and not the pew-owners are the corporators. Trinitarian Cong. Soc. v. Union Cong. Soc., 61 N. H. 384. See also Holt v. Downs, 58 N. H. 170. An action will not lie against an incorporated ecclesiastical society for the wrongful expulsion of a member by the church, Hardin v. Baptist Church, 51 Mich. 137, 16 N. W. 403; Sale v. First Baptist Ch., 62 Iowa, 26, 17 N. W. 143. The courts of the State have no general jurisdiction and control over the officers of such corporations in respect to the performance of their official duties; but as in respect to the property which they hold for the corporation they stand in position of trustees, the courts may exercise the same supervision as in other cases of trust. Ferraria v. Vasconcellos, 31 Ill. 25; Smith v. Nelson, 18 Vt. 511; Watson v. Avery, 2 Bush, 332; Watson v. Jones, 13 Wall. 679; Hale v. Everett, 53 N. H. 9; Boxwell v. Affleck, 79 Va. 402; First Ref. Pres. Ch. v. Bowden, 14 Abb. N. C. 356. Where a bishop holds property in trust, upon his insolvency, courts will prevent the diversion of the property to his creditors. Mannix v. Purcell, 46 Ohio St. 102, 19 N. E. 572. But the courts will interfere where abuse of trust is alleged, only in clear cases, especially if the abuse alleged be a departure from the tenets of the founders of a charity. Happy v. Morton, 33 Ill. 398. See Hale v. Everett, 53 N. H. 9. It is competent to form such societies on the basis of a community of property. Scribner v. Rapp, 5 Watts, 311, 30 Am. Dec. 327; Gass". Wilhite, 2 Dana, 170, 26 Am. Dec. 446; Waite v. Merrill, 4 Me. 102, 16 Am. Dec. 238. The articles of association will determine who may far in advance not only of the mother country, but also of much of the colonial legislation, which, though more liberal than that vote when the State law does not prescribe qualifications. State v. Crowell, 9 N. J. 391. Should there be a disruption of the society, the title to the property will remain with that part of it which is acting in harmony with its own law; seceders will be entitled to no part of it. McGinnis v. Watson, 41 Pa. St. 9; M. E. Church v. Wood, 5 Ohio, 283; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Monr. 253; Gibson v. Armstrong, 7 B. Monr. 481; Hadden v. Chorn, B. Monr. 70; Ferraria v. Vasconcellos, 23 Ill. 456; Fernstler v. Siebert, 114 Pa. St. 196, 6 Atl. 165; Dressen v. Brameier, 56 Iowa, 756, 9 N. W. 193. And this even though there may have been a change in doctrine on the part of the controlling majority. Keyser v. Stansifer, 6 Ohio, 363. See Petty r. Tooker, 21 N. Y. 267; Horton v. Baptist Church, 34 Vt. 309; Eggleston v. Doolittle, 33 Conn. 396; Miller v. English, 21 N. J. 317; Niccolls v. Rugg, 47 Ill. 47; Kinkead r. McKee, 9 Bush, 535; Baker v. Ducker, 79 Cal. 365, 21 Pac. 764. Whichever body the ecclesiastical authorities recognize as the church, whether it contains a majority of members or not, is entitled to the property. Gaff v. Greer, 88 Ind. 122; White Lick Meeting v. White Lick Meeting, 89 Ind. 136. Peculiar rights sometimes arise on a division of a society; as to which we can only refer to Reformed Church v. Schoolcraft, 65 N. Y. 134; Kinkead v. McKee, 9 Bush, 535; Niccolls v. Rugg, 47 Ill. 47; Smith v. Swormstedt, 16 How. 288; Henry v. Deitrich, 84 Pa. St. 286. The administration of church rules or discipline the courts of the State do not interfere with, unless civil rights become involved, and then only for the protection of such rights. Hendrickson v. Decow, 1 N. J. Eq. 577; Harmon v. Dreher, Speers Eq. 87; Dieffendorf . Ref. Cal. Church, 20 Johns. 12; Wilson v. Johns Island Church, 2 Rich Eq. 192; Den . Bolton, 12 N. J. 206; Baptist Church v. Wetherell, 3 Paige, 301; German Reformed Church v. Seibert, 3 Pa. St. 282; State v. Farris, 45 Mo. 183; McGinnis v. Watson, 41 Pa. St. 9; Watson v. Jones, 13 Wall. 679; Chase v. Cheney, 58 Ill. 509; Calkins v. Cheney, 92 Ill. 463; Gartin v. Penick, 5 Bush, 110; Lucas v. Case, 9 Bush, 297; People v. German, &c. Church, 53 N. Y. 103; Grosvenor v. United Society, 118 Mass. 78; State v. Hebrew Congregation, 30 La. Ann. 205, 33 Am. Rep. 217; State v. Bibb St. Ch., 84 Ala. 23, 4 So. 40; Livingston v. Rector, &c., 45 N. J. L. 230; Richardson v. Union Cong. Soc., 58 N. H. 187; Matter of First Pres. Soc., 106 N. Y. 251, 12 N. E. 626; Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84. Decision of church tribunal as to the election of a deacon is conclusive. Atty.-Gen. v. Geerlings, 55 Mich. 562, 22 N. W. 89. But trustees may be prevented by the courts from continuing to employ a minister who has been deposed: Isham v. Fullager, 14 Abb. N. C. 363; see Hatchett v. Mt. Pleasant Ch., 46 Ark. 291; from closing a church building: Isham v. Trustees, 63 How. Pr. 465; and may be compelled to open it to a regularly assigned pastor. People v. Conley, 42 Hun, 98; Whitecar v. Michenor, 37 N. J. Eq. 6. In a congregationally governed church a minority of officers may be enjoined from putting in an organ against the wish of the majority of the officers and members: Hackney v. Vawter, 39 Kan. 615, 18 Pac. 699; and a minority of members from excluding the majority from using the church. Bates v. Houston, 66 Ga. 198. But an excommunication will not be allowed to affect civil rights. Fitzgerald v. Robinson, 112 Mass. 371. As to the nature and effect of the contract between the society and the minister, see Avery v. Tyringham, 3 Mass. 160, 3 Am. Dec. 105, and note; Perry v. Wheeler, 12 Bush, 541; East Norway Lake Ch. v. Froislie, 37 Minn. 447, 35 N. W. 260; Downs r. Bowdoin Sq. Bapt. Soc., 149 Mass. 135, 21 N. E. 291; West v. First Pres. Ch., 41 Minn. 94, 42 N. W. 922. Under New York statute unless a minister's salary is fixed in a certain way, the church is not liable. Landers r. Frank St. M. E. Ch., 97 N. Y. 119. The civil courts may intervene as to a breach of contract for salary. Bird v. St. Mark's Church, 62 Iowa, 567, 17 N. W. 747. As to what is extra vires for such a society, see Harriman v. Baptist Church, 63 Ga. 186, 36 Am. Rep. 117. of other civilized countries, nevertheless exhibited features of discrimination based upon religious beliefs or professions.1 Considerable differences will appear in the provisions in the State constitutions on the general subject of the present chapter; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious persuasion, society, or sect, ineligible to civil office; 2 and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion.3 There are excep 1 For the distinction between religious toleration and religious equality, see Bloom v. Richards, 2 Ohio St. 389; Hale v. Everett, 53 N. H. 1. And see Madison's views, in his Life by Rives, Vol. 1, p. 140. It was not easy, two centuries ago, to make men educated in the ideas of those days understand how there could be complete religious liberty, and at the same time order and due subordination to authority in the State. "Coleridge said that toleration was impossible until indifference made it worthless." Lowell, "Among my Books," 336. Roger Williams explained and defended his own views, and illustrated the subject thus: "There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination or society. It hath fallen out sometimes that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal I affirm that all the liberty of conscience I ever pleaded for turns upon these two hinges that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship if they practise any. I further add that I never denied that, notwithstanding this liberty, the commander of this ship ought to command the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their service, or passengers to pay their freight; if any refuse to help, in person or purse, towards the common charges or defence; if any refuse to obey the common laws and orders of the ship, concerning their common peace and preservation; if any shall mutiny and rise up against their commanders and officers; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, no corrections nor punishments; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Knowles, 279, 280. There is nothing in the first amendment to the federal Constitution which can give protection to those who practise what is forbidden by the statute as criminal, e. g. bigamy, on the pretence that their religion requires or sanctions it. Reynolds v. United States, 98 U. S. 145. 2 There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Delaware, Maryland, and Kentucky. 3 The Constitution of Pennsylvania provides "that no person who acknowledges the being of God, and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.” Art. 1, § 4. — The Constitution of North Carolina: "The following classes of persons shall be disqualified for office : First: All persons who shall deny the existence of Almighty God," &c. Art. 6, § 5 — The Constitutions of Mississippi and South Carolina: "No person who denies tional clauses, however, though not many in number; and it is believed that, where they exist, they are not often made use of to deprive any person of the civil or political rights or privileges which are placed by law within the reach of his fellows. Those things which are not lawful under any of the American constitutions may be stated thus: 1. Any law respecting an establishment of religion. The legislatures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects. Whatever estab the existence of the Supreme Being shall hold any office under this Constitution." The Constitution of Tennessee: "No person who denies the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this State." - On the other hand, the Constitutions of Georgia, Kansas, Virginia, West Virginia, Maine, Delaware, Indiana, Iowa, Oregon, Ohio, New Jersey, Nebraska, Minnesota, Arkansas, Texas, Alabama, Missouri, Rhode Island, Nevada, and Wisconsin expressly forbid religious tests as a qualification for office or public trust. Very inconsistently the Constitutions of Mississippi and Tennessee contain a similar prohibition. In the Constitutions of Alabama, Colorado, Georgia, Illinois, Iowa, Kentucky, Michigan, New Jersey, Rhode Island, and West Virginia, it is provided that no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions. The Constitution of Maryland provides "that no religious test ought ever to be required as a qualification for any office of trust or profit in this State, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution." Declaration of Rights, Art. 37. -The Constitution of Illinois provides that "the free exercise and enjoyment of religious profession and worship without discrimination shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship." Art. 2, § 3. - The Constitutions of California, Colorado, Connecticut, Florida, Georgia, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nevada, New York, and South Carolina contain provisions that liberty of conscience is not to justify licentiousness or practices inconsistent with the peace and moral safety of society. 1 A city ordinance is void which gives to one sect a privilege denied to others. Shreveport v. Levy, 26 La. Ann. 671. It is not unconstitutional to permit a schoolhouse to be made use of for religious purposes when it is not wanted for schools. Nichols v. School Directors, 93 Ill. 61, 34 Am. Rep. 160; Davis v. Boget, 50 Iowa, 11. But in Missouri it seems the school directors have no authority to permit such use. Dorlin v. Shearer, 67 Mo. 301. Under the Illinois Constitution of 1848 the legislature had no authority to take a private school-house, erected under the provisions of a will as a schoolhouse and place of worship, and constitute it a school district, and provide for the election of trustees, and invest them with taxing power for the support of a school therein. People v. McAdams, 82 Ill. 356. But the basement of a church may be used for a school and teachers of one sect employed. And if religious instruction is given daily, though not required by lishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle; it is enough that it creates an inequality of right or privilege. 2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.1 3. Compulsory attendance upon religious worship. Whoever is not lead by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizens or to society; but those which spring from the relations between himself and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws are obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies, which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship. the authorities, a taxpayer cannot have equitable relief. Millard v. Board of Education, 121 Ill. 297, 10 N. E. 669. [A municipal corporation cannot hold as trustee real estate devoted to religious uses. Maysville v. Wood, 102 Ky. 263, 43 S. W. 403, 39 L. R. A. 93.] 1 We must exempt from this the State of New Hampshire, whose constitution permits the legislature to authorize "the several towns, parishes, bodies corporate, or religious societies within this State to make adequate provisions, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality;" but not to tax those of other sects or denominations for their support. Part 1, Art. 6. As to meaning of Protestant, see Hale v. Ever ett, 53, N. H. 1. The attempt to amend the above provision by striking out the word "Protestant" was made in 1876, but failed, though at the same time the acceptance of the Protestant religion as a test for office was abolished, and the application of moneys raised by taxation to the support of denominational schools was prohibited. [But to appropriate moneys to a hospital in payment for treatment and cure of poor persons under a contract for such treatment is not to appropriate moneys in support of a religious society, even though all the incorporators of the hospital are of one faith, the hospital corporation being entirely independent of all church or religious organizations, and being open to persons of all faiths or no faith. Bradfield v. Roberts, 175 U. S. 291, 20 Sup. Ct. Rep. 121. Subventions cannot be made to sectarian schools to aid them in even purely secular instruction. Synod of Dakota v. State, 2 S. D. 366, 50 N. W. 632, 14 L. R. A. 418, and note.] |