Page:The New International Encyclopædia 1st ed. v. 04.djvu/887

CIVIIi CHURCH LAW. 781 CIVIL CHURCH LAW. ture of tlic ecclesiastioal function of the State, which, however, is none tlic less real because of such alteration. Such a function of the Govern- ment is no mere [ihilosophical abstraction, but is a working institution, which has been in suc- cessful operation for more than n century. It has been carried wherever there has been an ex- pansion of American soverei<;nty, and has been made to meet new conditions among new peo- ples, and has been so applied as to maintain its principles intact, and has everywhere produced substantially the .same civil status for the churches. History or Civil Ciukcii l.wv. Like other successful procedures, the separation of Church and State, and the eqtial status of churches, were not planned in detail and put into operation, but developed gradually under the force of pub- lic opinion. At the outbreak of the American Revolution, the Colonies were divided ecclesias- tically into three groups. In one group, con- sisting of Xew York, New .lersey, Delaware, IMaryland, Virginia, Xorth Carolin-i. South Caro- lina, and Georgia, the direct establishment of the communion of the Cliurch of England was more or less complete in law. In the second group of Colonies, consisting of Massachusetts, Xew Hampshire, and Connecticut, the Congrega- tional form of ecclesiastical organization, on the basis of the town and "poll' parish, was es- tablished in law and in fact. In the third group of Colonies, consisting of Rhode Island and Penn- sylvania, no ecclesiastical establishments had been developed, either in law or in fact. As a re- sult of political revolution, the direct establish- ments by royal authority were nullified in law. The indirect establishments in the Xew England Commonwealths, built upon provincial legisla- tion and local administration, remained undis- turbed for some years. There remained, as sur- vivals of the direct establishments, a ntmiber of incorporated parishes in Xew York and Virginia, and a few in other States; and, as i-emains of a still earlier establishment in X'ew York, there were three or foftr incorporated Reformed Dutch churches that had received special protection by the Treaty of Breda, transferring the Province of X'ew Netherlands to the British in 1067. Dur- ing the Colonial Period, religious dissent had. with more or less vigor, resisted the legal Church establishments, and especially the system of com- pulsory taxation for the support of the clergy; and the overthrow of British sovereignty brought its opportunity. A demand develo])ed very gen- erally, even in the Xew England (Commonwealths, but with stronger political backing in other sec- tions, for a complete divorcement of political and Church afTairs. 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 se- cured 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 .mendment. Both of these provisions were limitations upon the pow- ers 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 atl'airs were in- cluded within the sphere of domestic relations, and were so left to the States to deal with. There were then inserted in the early constitu- tions of the several States the guarantees of religious liberty generally in the forms that we are familiar with. The develoimienl 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 in- corporation to local churches, and this practice was continued for .some years by the State legis- latures. It was, however, abandoned in time, be- cause of the objection made by the political minorities, that the granting of such particular charters was special legislation, secured by po- litical influence. At tliis period the American churches were beginning to revive from the ex- iuiustion caused by the war, and were becoming the legal and equitable owners of property. Legal means for securing |iroperty to jjious and charitable uses were sorely needed. Hence, a demand arose in several of the iliddle States for a uniform procedure by which the local organi- zations of all religious bodies could secure a corporate form, with full control of their prop- erty. To meet this demand there were enacted a series of general statutes, beginning with that of Xew York, of April fl, 1784. An act of similar intent and of like provisions was passed, in 1 793, by the State of X'ew Jersey ; and these two statutes became the models for similar laws in many of the Xorthern States, The jirovisions of these statutes were very meagre. Xo reference was made to particular ecclesiastical politics, except in the ca.se of the Protestant Episcopal churches. The powers conferred upon the reli- gious corporations so created were very limited, and nowhere were such corporations allowed to be self-perpetuating. Partiality to certain reli- gious 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 nine- teenth 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 religiois societies by general statute has de- veloped unequally in difl'erent sections of the country. As late as the year ISfifi, 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 Ameri- can civil Church law has been the result of spe- cializing legislation in two directions. One form has been the discrimination InHwecn religious organizations projier and other social, educa- tional, and philanthropic organizations. The .secimd form of specialization has consisted in supplementing the general provisions of the statutes with optional provisions for corpora- tions of particular denominations and polities. Through these sui)plemental provisions, there has been wrought into the statute law the recog- nition of purely ecclesiastical functionaries; and this is done most effectively by the creation of ecclesiastical corporations sole. There has de- veloped a marked legislative cordiality toward the churches. At the beginning of the twentieth century, the policy is to treat all interests alike.