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may be practicable,to hold appropriate religious services for the benefit of the commands, at least once on each Sunday, and to perform appropriate religious burial services at the burial of officers and soldiers who may die in such commands." Proper facilities for the performance of these duties must be furnished by the commanders of regiments, hospitals and posts, and monthly reports must be made by the chaplains to the adjutant-general of the army. (Revised Statutes of the United States, sections 1094, 1121-1127 and 1261.)
The same Statutes authorize the appointment of navy chaplains "for the public armed vessels of the United States in actual service, not exceeding twenty-four" in number, and "not less than twentyone nor more than thirty-five years of age at the time of their appointment." Their rank is defined and their annual compensation fixed according as they are at sea, or on shore, or on leave, or waiting orders. They are to make an annual report to the Secretary of the Navy in regard to "the official services performed by them." These services are referred to in the provision that "every chaplain shall be permitted to conduct public worship according to the manner and forms of the Church of which he may be a member." (Sections 1395-1398 and 1556.)
Such is the law of the United States in regard to army and navy chaplains. The power of Congress to make these provisions is derived from its
power" to raise and support armies" and "to provide and maintain a navy." The law certainly does not establish Christianity or place upon it the seal of governmental authority. Such a construction would make it inconsistent with the express prohibition which declares that "Congress shall make no law respecting an establishment of religion."
It is true that the army chaplain must be " a regularly-ordained minister of some religious denomination"; but this denomination is not necessarily Christian. There is no reason in the law why a Jewish Rabbi might not be appointed; and this would be eminently proper if the soldiers of a regiment or at a post were Jews. Nor is there any requirement that the navy chaplain should be an ecclesiastic at all; and whether, such or not, he is at liberty to conduct public worship "according to the manner and forms of the Church of which he may be a member." The religious services to be held by the army chaplain are described as “appropriate;" and the day specially named therefor is Sunday, not because Congress designed to establish Sunday as a sacred day but because, in the practice of the American people, it is the usual day of rest, and in that of Christians the usual day for religious services.
The obvious purpose of the entire arrangement is to promote the good of the army and navy of the United States and supply certain religious fa
cilities to those who are in the employment of the Government, and who by the nature and circumstances of their service would otherwise be wholly deprived of them. There is no need of such provisions for those who are engaged in the civil service of the country; and, hence, none are made. The law does not establish a religion, even for the army and navy, or compel its acceptance, or require any one to attend its services; and, moreover, it carefully avoids any designation of these services as distinctively Christian. If the chaplains are usually Christian ministers, this may be sufficiently explained by the fact that Christianity is the prevalent type of religion among the American people. Let any other type be equally prevalent, and the Government would naturally recognize the fact in its chaplain appointments, as it could without any essential change in the law. Those who infer a quasi-connection between Church and State, as arising from these chaplaincies of the United States, extend their inference far beyond the premises and entirely beyond the intention of the law. No court of justice would entertain the inference for a moment.
Turning, then, to the question of State chaplaincies, we select those of the State of New York as an example. In respect to chaplains to open the sessions of the legislature with prayer the law is wholly silent. As a matter of history, this service was omitted altogether for several years prior to 1838; and at that time the clergy of Albany made
an arrangement to render it without compensation, which, we believe, has continued to be the practice ever since. The practice implies the existence of the religious system represented by these clergymen; but it does not bestow upon it any legal character, and would not, even if the clergymen were formally appointed by each house of the legislature. The constitutions of Michigan (IV., 24) and of Oregon (I., 5), while not forbidding the appointment of such chaplains, expressly provide that "no money shall be appropriated for the payment of any religious services in either house" of their respective legislatures.
The act of April 23d, 1862, passed by the legislature of New York, entitled "An act to provide for the enrollment of the militia," etc., declares (section 106) that "to each regiment or battalion. there shall be appointed one chaplain, who shall be a regular ordained minister of a Christian denomination." Here a Christian minister, in the character of a chaplain, is included in the organization of the staff department; and this is all that the act says about him.
The Revised Statutes of New York (Part IV., chapter 3, title 2, article 1, and sections 40, 60) provide for the appointment of a chaplain for each of the State prisons of the State and assign to him the following duties: 1. "To perform religious services in the prison, under such regulations as the inspectors may prescribe, and to attend to the
spiritual wants of the convicts." 2. "To visit the convicts in their cells, for the purpose of giving them religious and moral instruction, and to devote at least one hour in each week-day and the afternoon of each Sunday to such instruction." 3. "To furnish, at the expense of the State, a Bible and hymn-book to each convict." 4. "To take charge of the library, and to take care that no improper books are introduced into the cells of the convicts; and, if any such books shall be found in the cells or in possession of any convict, to take them away, and return the same to the agent; and, for the purpose of properly discharging these duties, to visit weekly each cell in the prison." 5. "To visit daily the sick in the hospital." 6. "To make an annual report to the inspectors, up to the first of December, relative to the religious and moral conduct of the prisoners during the year."
The same Statutes (Part IV., chapter 3, title 1, article I, and section 13) contain the following provision in respect to county prisons: "It shall be the duty of the keeper of each county prison to provide a Bible for each room in the prison, to be kept therein; and he shall, if practicable, cause divine service to be performed for the benefit of the prisoners at least once each Sunday, provided there shall be a room in the prison that can be safely used for that purpose."
Taking, then, the State of New York as an example of legislation on the subject of chaplaincies,