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These societies not only need protection against molestation and disturbance; but, being the owners of property gathered by their voluntary offerings, and designed for Church purposes, they need to be clothed with legal rights in respect to its possession and use. In some way, either directly or indirectly, law must come in contact with them, and they must come in contact with law. So large a social fact as the organized religion of this country cannot exist without some form of such contact.
What we mean by the Law of Religious Societies is simply the law of the several States relating to them, and which, taken in the aggregate, may very properly be styled American Ecclesiastical Law. We mean also the law as it now is, and not as it was during the colonial period of our history. That there is such a law admits of no dispute. To state it in detail would be the work of a volume, if not many volumes. We have no such purpose. All that is proposed in this article is to give a few leading hints to some of its most general features, as the means of indicating the legal theory of the country in dealing with the subject of religion. On this point we submit the following statement :
1. The State tolerates religious societies, whether Christian or otherwise, in the sense of not making them unlawful, or doing anything to suppress them. They are in this respect regarded as innocent organizations, as working no harm to the State, as not being contrary to public policy, and as being an exercise of the right of voluntary association with which the State ought not to interfere. It is not necessary to spend words on this point, since the fact is one of acknowledged and universal prevalence.
2. The State protects religious societies, when met together and peaceably conducting themselves, against disturbance and interference. It will not interfere with them itself, or suffer others to do so. This protection recognizes and defends the general right of peaceable assemblage, and is simply a branch of the protection which the State extends to all persons when met together for lawful purposes, and conducting themselves lawfully. In most, if not all of the States of the Union, there are special statutes against disturbing religious meetings, defining the forms of the offense, designating penalties therefor, and providing the appropriate jurisdiction for their infliction. These statutes apply to all religious societies, no matter what may be the creed professed, or the polity adopted.
3. The State, for the purposes of its own jurisdiction and control, takes no cognizance of the Church proper, as distinguished from the incorporated religious society. It does not legislatively enter the domain of its purely ecclesiastical life, or attempt to regulate its affairs as such. Mr. Tyler, in his “ American Ecclesiastical Law” (p. 128), observes :
Religious societies usually maintain public worship according to some specified denominational usage ; but the corporation and the Church, although one may exist in the pale of the other, are in no respect correlative. The objects and interests of the one are moral and spiritual ; and the other deals exclusively with things temporal and material. The existence of the Church proper, as an organized body, is not recognized by the municipal law. (Petty vs. Tooker, 21 New York Reports, p. 267)."
The same author (pp. 54, 55) further remarks :
“ Over the Church, as such, the legal and temporal tribunals do not in general profess to have any jurisdiction whatever, 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 themselves.”
Justice Strong, of the Supreme Court of the United States, in his lectures on the “Relations of Civil Law to Church Polity, &c.” (p. 41), speaks of the Church "as an interior organization within a religious society," and then adds (p. 42) :
“I think it may be safely asserted, as a general proposition, that whenever questions of discipline, of faith, of Church rule, of membership, or of office have been decided by the Church in its own modes of decision, civil law tribunals accept the decisions as final and apply them as made.”
It is quite true that a Church is almost always
connected with a religious society, and that the two may be largely composed of the same persons; yet the Church itself, in distinction from the religious society of which we shall speak in the sequel, is unknown to the law for any purpose of supervision or control. The law does not appoint its officers, or prescribe any rules for their appointment, or determine what shall be its government or system of doctrine.
4. As a consequence, the State leaves the Church itself to be an entirely self-perpetuating and self-regulating organization within the limits of decency and good order. As to doctrines and government, as to the admission or exclusion of members, as to Church officers and their powers, as to the modes of worship and transacting every kind of spiritual business, as to the confederation of Churches under one system of polity and faith, as to all the religious matters and objects of the organization, the theory of American law is that the State has nothing to do with the Church. The Church can make no law for the State, and the State in regard to these subjects makes no law for the Church. As observed by Justice Strong (p. 37), the State “leaves the internal management of a Church exclusively to its own regulations."
This is but another mode of asserting the doctrine of a free Church in a free State. In the case of Harmon vs. Desher (1 Spear's Equity Reports, South Carolina, p. 80), the Court thus stated this
doctrine :-“The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference ; and, on the other hand, it has secured religious liberty from the invasion of the civil authority.”
5.-It follows, as a corollary, that the State in its organic capacity has no legal opinion as to the truth of the religion professed by the Church. All creeds are in its view equally orthodox and equally heretical, since it has nothing to do with them in either aspect. If a Church chooses to adopt and preach the Mormon faith, including its doctrine in regard to marriage, the State will not concern itself with the question. If any of the members actually practise polygamy, then their external conduct, but not their articles of faith, will bring them, as individuals and members of civil society, into conflict with the law and render them liable to punishment There is no penalty against their faith, or against its peaceable propagation ; but this immunity does not release them from their obligations as citizens, or exempt them from punishment if they violate the law in regard to marriage.
The underlying assumption of American law in iespect to matters of religious faith is that free discussion, and not any system of legal coercion or repression, is the proper remedy for errors of faith, and the only one consistent with an equal and impartial enjoyment of religious liberty. It, hence, leaves all Church organizations to make, to admin