# The New International Encyclopædia/Civil Church Law, American

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CIVIL CHURCH LAW, American. The body of law which defines the ecclesiastical function of the State, and maintains the civil status of the religious bodies within the United States. The status of the American churches is without a parallel in Christendom, in that in no other State do all organizations for the purposes of religion bear exactly the same legal relation to the civil authority. This body of law has been developing during the life of the American people as a nation, and has become one of the fundamental principles of their political philosophy. It is to be found (1) in provisions of the Federal and State constitutions; (2) in statute legislation; (3) in the decisions of the State and Federal courts, which now include about one thousand leading cases in these matters.
The Ecclesiastical Function of the American State. Although there is within the United States no church or churches by law established, yet the American State has an ecclesiastical function to perform. Formulated in its briefest terms, this ecclesiastical function is to cause it to be legally possible and also convenient for all residents, whether citizens, subjects, or aliens within the jurisdiction of the American governments, to sustain voluntary ecclesiastical relations. In other States, it is regarded as a proper function of the civil power to provide for definite ecclesiastical relations; and the aggregate of those relations so specifically provided for is regarded as constituting an ecclesiastical establishment. In either case, the civil power has an ecclesiastical function; but the difference in the two concepts is this, that the development of the individual's sphere of speech and action has in the American State completely included the sphere of speech and action for all purposes of religion, and has correspondingly altered the
nature of the ecclesiastical function of the State, which, however, is none the less real because of such alteration. Such a function of the Government is no mere philosophical abstraction, but is a working institution, which has been in successful operation for more than a century. It has been carried wherever there has been an expansion of American sovereignty, and has been made to meet new conditions among new peoples, and has been so applied as to maintain its principles intact, and has everywhere produced substantially the same civil status for the churches.
History of Civil Church Law. Like other successful procedures, the separation of Church and State, and the equal status of churches, were not planned in detail and put into operation, but developed gradually under the force of public opinion. At the outbreak of the American Revolution, the Colonies were divided ecclesiastically into three groups. In one group, consisting of New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, the direct establishment of the communion of the Church of England was more or less complete in law. In the second group of Colonies, consisting of Massachusetts, New Hampshire, and Connecticut, the Congregational form of ecclesiastical organization, on the basis of the town and ‘poll’ parish, was established in law and in fact. In the third group of Colonies, consisting of Rhode Island and Pennsylvania, no ecclesiastical establishments had been developed, either in law or in fact. As a result of political revolution, the direct establishments by royal authority were nullified in law. The indirect establishments in the New England Commonwealths, built upon provincial legislation and local administration, remained undisturbed for some years. There remained, as survivals of the direct establishments, a number of incorporated parishes in New York and Virginia, and a few in other States; and, as remains of a still earlier establishment in New York, there were three or four incorporated Reformed Dutch churches that had received special protection by the Treaty of Breda, transferring the Province of New Netherlands to the British in 1667. During the Colonial Period, religious dissent had, with more or less vigor, resisted the legal Church establishments, and especially the system of compulsory taxation for the support of the clergy; and the overthrow of British sovereignty brought its opportunity. A demand developed very generally, even in the New England Commonwealths, but with stronger political backing in other sections, for a complete divorcement of political and Church affairs. There is evidence that the conditions were such that the politicians could not disregard this demand. At the formation of the Federal Government, religious liberty was secured to the people of the United States, so far as the action of the Congress was concerned, by the provisions of Chapter III., Article 4, of the Constitution, and the First Amendment. Both of these provisions were limitations upon the powers of Congress only; and neither the original Constitution nor any of the early amendments undertook to protect the religious liberties of the people against the action of their respective State governments. Religious affairs were included within the sphere of domestic relations, and were so left to the States to deal with.
There were then inserted in the early constitutions of the several States the guarantees of religious liberty generally in the forms that we are familiar with. The development of the local peculiarities in the ecclesiastical institutions of the several States and sections of the country continued without interruption. The Colonial legislatures had granted a few charters of incorporation to local churches, and this practice was continued for some years by the State legislatures. It was, however, abandoned in time, because of the objection made by the political minorities, that the granting of such particular charters was special legislation, secured by political influence. At this period the American churches were beginning to revive from the exhaustion caused by the war, and were becoming the legal and equitable owners of property. Legal means for securing property to pious and charitable uses were sorely needed. Hence, a demand arose in several of the Middle States for a uniform procedure by which the local organizations of all religious bodies could secure a corporate form, with full control of their property. To meet this demand there were enacted a series of general statutes, beginning with that of New York, of April 6, 1784. An act of similar intent and of like provisions was passed, in 1793, by the State of New Jersey; and these two statutes became the models for similar laws in many of the Northern States, The provisions of these statutes were very meagre. No reference was made to particular ecclesiastical politics, except in the case of the Protestant Episcopal churches. The powers conferred upon the religious corporations so created were very limited, and nowhere were such corporations allowed to be self-perpetuating. Partiality to certain religious bodies was dreaded, and there was a very real fear that something might be done toward recreating an ecclesiastical establishment. The prevailing policy in legislation during the period extending through the third decade of the nineteenth century was based upon the idea that the civil power should treat all organizations alike, by doing as little as possible for any of them. The method of providing for the incorporation of religious societies by general statute has developed unequally in different sections of the country. As late as the year 1866, the States of Rhode Island, Virginia, and South Carolina had no such statute; and thirty years later, in 1896, a general statute of incorporation was still forbidden in the States of Virginia and West Virginia.
The third stage in the development of American civil Church law has been the result of specializing legislation in two directions. One form has been the discrimination between religious organizations proper and other social, educational, and philanthropic organizations. The second form of specialization has consisted in supplementing the general provisions of the statutes with optional provisions for corporations of particular denominations and polities. Through these supplemental provisions, there has been wrought into the statute law the recognition of purely ecclesiastical functionaries; and this is done most effectively by the creation of ecclesiastical corporations sole. There has developed a marked legislative cordiality toward the churches. At the beginning of the twentieth century, the policy is to treat all interests alike,
by giving to each all that is asked. The early concept of religious organization in American law was naturally that of a simple and completely autonomous local society. To denominations whose type of polity corresponds to this concept, the legislation of the general statute era was satisfactory. The special optional provisions have, therefore, been enacted as a rule for the benefit of churches having polities by which the local bodies sustain definite relations to some more general authority, such as synodical and episcopal churches. At the present time, twenty-five distinct denominations have been thus specially legislated for. American religious corporations are not ecclesiastical corporations in the sense of the English law, but are merely private corporations not for profit. The constituent elements of these corporations vary all the way from the total number of church members to the corporation sole: as, for example, a presiding elder, bishop, or archbishop.
The Principles of Civil Church Law. In the course of the adjudication of the many causes that have arisen from ecclesiastical matters, the civil courts have developed the following as the basic principles of American civil Church law: (1) All ecclesiastical relations are voluntary, both in their inception and continuation. (2) The freedom of action for the purposes of religion is guaranteed to every one by the organic law, and is limited by the same law by the civil rights of others, and by all that is necessary for the purpose and good order of the State and for the protection of public morals. (3) No civil right can, in the eyes of the law, be impaired by an ecclesiastical relation. (4) The law of the land is a part of the law of the churches. (5) No law of the churches, when it is found to be in conflict with the law of the land, has any validity. (6) The civil courts are open for the adjudication of ecclesiastical causes when civil rights are involved. (7) The civil courts, when they assume jurisdiction of a cause, will accept the decisions of ecclesiastical tribunals, if such tribunals act according to the Church law, and do not exceed their jurisdiction. (8) The authority of the civil courts over all religious organizations is secured by the same means as in the ease of private persons and secular organizations: judgments, decrees, and the issue of the writs of mandamus, information in the nature of quo warranto, prohibition, and injunction. (9) The principles of the law of charitable uses and of trusts, as modified by statute, are applied to property devoted to the purposes of religion. (10) The American clergyman, from the standpoint of the law, is a voluntary member of the association to which he belongs. The station is not forced upon him; he seeks it. He accepts it with all its consequences, and with all the rules and laws and canons then subsisting or to be made by competent authority. Such laws cannot, in any event, endanger his life or liberty, impair any of his personal rights, deprive him of property acquired under the laws, or interfere with the free exercise and enjoyment of religious profession and worship; for these are protected by the constitutions and laws.
The results of American civil Church law may be summed up in the language of the Supreme Court of the United States, in the case of Watson vs. Jones, 13 Wall. U. S., 639, as follows:
“In this country, the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine, which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect.” It is these principles of civil Church law that are to govern in all the relations of the civil power and the churches beyond the confines of the United States — in the insular possessions of the Hawaiian Islands, Porto Rico, and the Philippines.