system of instruction is in some ways almost chaotic. As far as colleges and high schools are concerned, the stage of development of the central European states has not been reached.1

$98. RELATIONS OF CHURCH AND STATE. "It belongs to American liberty to separate entirely the institution which has for it object the support and diffusion of religion from the political government." The constitutions of all the states proclaim this principle in one form or another, and they put its chief consequences in the shape of express prohibitions. The American principle is not general toleration, but absolute religious freedom. This, according to American ideas, involves the complete withdrawal of religio-ecclesiastical relations as such from the sphere of action of the state and of political organizations of lower grade. The Americans are mistaken in their frequent assertion that this principle is carried out to its last consequences in all the states, but the differences are few and as a rule of no practical importance.

In all the states, the constitutions forbid the establishment of a state church or any distinction in favor of any religious denomination. If any advantage whatever were given one, this would be an injury to the others, and any injury suffered on account of religious convictions is op

1 Compare, besides the annual reports of the bureau of education and Barnard's American Journal of Education: Troschel, Volkscharakter und Bildungsanstalten der Nordamerikaner, 1867; Rigg, National Education, 1873; A Statement of the Theory of Education in the United States of America, 1874; F. Adams, The Free School System of the United States, 1875; Gilman, Education in America, 1776-1876, in the North American Review, 1876.

2 See Cooley, Const. Lim., 467-478; R. H. Tyler, American Ecclesiastical Law, Albany, 1866; F. Vinton, American Canon Law, N. Y., 1870; W. Strong, Relations of Civil Law to Church Polity, N. Y., 1875; S. B. Smith, Ecclesiastical Law, 2d ed., N. Y., 1878.

3 Lieber, On Civil Liberty and Self-Government, 99.

posed to the principle of absolute religious freedom. If this is true in relation to religious organizations, it must manifestly also be true as to all individuals. States are therefore unfaithful to this principle if their constitutions make the right to hold certain or all public offices dependent upon faith in a higher being, in a future life, etc. Some state constitutions do this. This inconsequence is either not recognized or else is regarded as justifiable, for, as far as the Anglo-Americans are concerned, there is very much truth in Kapp's assertion that religious liberty is understood by the great majority to mean "that every one has indeed the liberty to profess any religion but not the right to acknowledge no religion." All such provisions, however, are constantly and in an increasing ratio disappearing from the state constitutions.

Such

TAXATION FOR RELIGIOUS PURPOSES is forbidden. taxes cannot be levied by the townships and counties any more than by the state. Religion is an entirely private affair, and the imposition of public burdens for private affairs is inadmissible. No one can be compelled to contribute to the cost of satisfying the religious wants of somebody else. Whoever associates himself with others for such purposes and so voluntarily assumes material

1 Das Verhältniss von Staat und Kirche in der Union. Aus und über Amerika, II., 48.

2 For an exception, see Cooley, Const. Limit., 468, note 1. I give the provision of the Illinois constitution on this point verbatim, because it may be regarded as typical: “Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund whatever anything, in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money or other personal property ever be made by the state or any such public corporation to any church or for any sectarian purpose." Art. VIII., sec. 1, § 3.

obligations is nevertheless, of course, bound to meet these obligations. Controversies arising from this may be decided by the ordinary courts, but they can never have a general law character.

The states are forbidden to compel participation in any religious exercises or usages whatsoever. A member of a religious congregation is so solely because he wishes to be, and he can cease to be so for whatever reason and whenever he pleases. On the other hand, the state has no right to direct religious denominations whom they shall admit to membership, why they shall exclude from membership, how they shall arrange their church rules, when and how they shall impose ecclesiastical punishments, etc. It is only when they invade the legal rights of the citizen that the person injured can seek the protection of the courts. The churches, as religious communities, have unlimited self-government, but they can never, by appealing to their articles of faith or church regulations, justify the least violation of what the state recognizes as a right. Without detriment to their abso lute autonomy, they are as absolutely subject to the law as any stock company or social club.

THE FREE EXERCISE OF RELIGION cannot be hindered by the states. The Chinaman cannot be troubled in his temple of idolatry any more than the Catholic archbishop in his cathedral. No one is to be prevented from making the craziest religion his own and living up to it in accordance with the dictates of his conscience. But this holds good only so far as he does not thus come into conflict with the laws. The laws, in fact, do not affect religion, but always take care that no one, in the name of religion, shall actually oppose the requirements which the state, as a moral, civilized society, may and must make.1 He 1 The Illinois constitution provides: 'But the liberty of conscience hereby secured shall not be construed to excuse acts of

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who does this encroaches upon the legal rights of others, and indeed in this case upon the legal rights of the community, whereas the constitutional guarantee of religious freedom is to him only a guarantee that on that question neither the state nor any one else shall be permitted to encroach upon his legal rights.

THE FREE EXPRESSION AND DEFENSE OF RELIGIOUS OPINIONS by word or pen cannot be restricted by the state. This right, also, is subject to the restrictions stated in the preceding section. No constitution forbids the legislature to prevent the circulation of immoral writings injurious to public morals. In some states this is made its express duty. This right and this duty cannot, however, be set aside because lasciviousness presents herself in the drapery of religious conviction. The exercise of the right is also subject to the further restriction that it shall not be so abused as to violate the legal right of others to follow their convictions.

The fundamental principles are clear, but it is easy to see that their application to concrete cases must involve many and many kinds of difficulties. Whether the great problem of the relations of church and state has been more satisfactorily solved in the United States, by complete separation, than it has been in European states, by more or less of alliance, is not a matter of enquiry here. But a presentation of American general law must point out the fact that the American solution does not, as most Americans believe and assert, absolutely exclude all misunderstandings, etc., between these two highest points of civilization. And even were that the case, yet the facts to be stated hereafter show even more clearly than those already cited that the highly complex development licentiousness, or justify practices inconsistent with the peace or safety of the state." Art. II., sec. 1, § 3.

of the relation between church and state in Europea development which has gone on a thousand years or more makes the adoption of the American theory in the old world utterly impossible.

The co-existence of absolute legal dominion over the churches, and of their complete autonomy as organized religious societies, is made possible by the fact that the state does not know them as self-contained, complex powers at all. Legislation concerns itself only with individual congregations, and even with them not as communities of one faith, but only as corporations which, under the laws, can acquire property, use it and manage it. The state does not, however, ignore the two important facts that these are corporations for religious purposes, and that every congregation belongs to a sect. Church rules, church laws, even doctrines of faith, can be enforced by the courts, and may control judicial decisions. The courts decide only questions of law, but these may depend upon a church rule, etc. Without regard to the reasonableness, the justice, the worth or the unworthiness of the articles of faith or of the ordinances of the church, they are treated by the courts as facts from which legal consequences may arise for those who have become subject to them by voluntarily becoming members of a church. The church authorities can bring no questions of a civil nature before their forum, and the state never lends them its strong arm except in questions of civil rights, such as may arise under the rules of a club as well as under the ordinances of a church. In other

1 The leading principles are plainly and pointedly set forth by J. P. Thompson, Kirche und Staat in den Vereinigten Staaten von Amerika. He says:

"Under the laws of the United States, and of the several states of the Union, each church is at liberty to organize itself according to