The New Irish Constitution Part 6

"L'exercice des droits civils ou politiques ne peut etre restreint par des prescriptions ou des conditions de nature ecclesiastique ou religieuse, quelles qu'elles soient.

"Nul ne peut, pour cause d'opinion religieuse, s'affranchir de l'accompliss.e.m.e.nt d'un devoir civique.

"Nul n'est tenu de payer des impots dont le produit est specialement affecte aux frais proprement dits du culte d'un communaute religieuse a laquelle il n'appartient pas. L'execution ulterieure de ce principe reste reservee a la legislation federale.

"_Article_ 50.-Le libre exercice des cultes est garanti dans les limites compatibles avec l'ordre public et les bonnes murs.

"_Article_ 54.-Le droit de mariage est place sous la protection de la confederation.

"Aucun empechement au mariage ne peut etre fonde sur des motifs confessionels."

While declaring the principle of liberty of conscience, the Swiss Federal Const.i.tution permits the cantons to give a privileged position to certain religious denominations; they may give them subsidies; they may invest them with certain prerogatives denied to other bodies less favoured. For example, in Fribourg, the Catholic and the Protestants are put on a footing of equality. Owing to the powers possessed by the separate cantons religious equality is not so complete as at first sight might seem. No serious difficulty appears to have been experienced in giving effect to the above provisions(89) which are not so complete as those found in the Home Rule Bill.

III. SAFEGUARDS IN COLONIES

I come to legislation which may seem of a kind more helpful and instructive than that of Continental countries. In the British Colonies there is no connection between the State and Church. The sole important exception is in Canada, where "the church can compel by law the payment of dues by Roman Catholics, and thus obtains great privilege from, while independent of, the State."(90)

In framing the Const.i.tution for the Canadian Dominions the religious question chiefly considered related to education; it was deemed necessary to guard against legislation which might impair existing rights. It was with an eye to the possibility of injustice being done to the denominational schools that special provisions were inserted in the North American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):

"In and for each province the Legislative may exclusively make laws in relation to education, subject and according to the following provisions:

"(1) Nothing in any such Act shall prejudicially affect any right or privilege with respect to denominational schools which any cla.s.s of persons have by law in the province at the union;

"(2) All the powers, privileges and duties at the union law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the same are hereby extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec;

"(3) Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the Legislature of the province, an appeal shall lie to the Governor-General in Council from any Act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education;

"(4) In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of this section is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circ.u.mstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section."(91)

Lately there have arisen religious difficulties to which this section has no application. By the Confederation Act (Section 91) the Dominion Parliament has exclusive jurisdiction as to marriage and divorce; jurisdiction which would appear to relate to capacity as to marriage. By Section 92 in each province the legislature may exclusively make laws as to "the solemnisation of marriage in the province," which would appear to extend to all matters affecting the form and ceremony; a division of powers certain to produce sooner or later conflicts. Recently the _Ne temere_ decree was promulgated in Canada. The effect upon Roman Catholics has been considered in what is known as the Hebert case, the chief facts of which were these: Eugene Hebert and Emma Clouatre, both Roman Catholics, were married by a Protestant clergyman. The marriage was declared null and void by Archbishop Bruchesi. His decision was confirmed by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau, who held that any officer qualified by the State to marry persons could marry persons of any religious faith; that the _Ne temere_ decree had no legal validity and was binding only upon the consciences of Roman Catholics.

To quote a report of Judge Charbonneau's judgment:

"I do not think that the Roman congregation ever intended the _Ne temere_ Decree to have a civil effect. It applies to Roman Catholics only. As for the Archbishop's nullification, it has the same legal effect, but not more than the decree upon which it is based. It simply declares that no Catholic marriage ceremony was performed."-(_Globe_, Toronto, February 23rd, 1912.)

So far as I know, there has been no appeal to the Judicial Committee, and I take it that Judge Charbonneau's decision is binding in Canada.(92)

In the Const.i.tution of the Australian Dominion is a provision similar to that quoted above from the Const.i.tution of the United States. (Section 116):

"The Commonwealth shall not make any law for establis.h.i.+ng any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the const.i.tution."

This enactment, so far as I am aware, has not been the subject of interpretation. Religious equality in Australia has virtually no history.

IV. SAFEGUARDS FOR IRELAND

I come to the position of things in Ireland. It may be well at the outset to make clear two points. The first is the present legal status of the Roman Catholic Church in that country. It is the same as that of any other voluntary a.s.sociation; its position theoretically no better and no worse.

It possesses autonomy; it enjoys freedom as to doctrine and wors.h.i.+p; its const.i.tution is not interfered with; it regulates clerical education; it nominates its bishops; it administers its property in its own way.

It may thus enjoy immense power, especially if there be no true national system of primary education; it may well be doubted whether it possesses as much power in any other country as in Ireland. But like other voluntary religious a.s.sociations the Catholic Church is not wholly withdrawn from the supervision and control of the Law Courts. A series of decisions of our highest courts with reference to Churches in Ireland and Scotland, and the colonies, have laid down certain principles equally applicable to the Roman Catholic Church and to all other religious bodies; in particular, these principles: that the State can exercise control over all religious bodies possessing property when it is proved to be contravening its rules to the injury of members. In the case of societies resting upon a consensual basis, Courts of Justice are bound when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the Society.(93) Further the authority of a Church cannot be legally used for purposes inimical to the State or contrary to any statute. It may make rules for its own members; it cannot enforce them against others; they are invalid against them if contrary to the terms of any statute. It may, for example, declare that it will not regard a marriage with a deceased wife's sister as valid; it may refuse to recognise as members those who so marry. But such rules will not legally invalidate a union which a statute has legalised. Probably this has not always been fully borne in mind by those who have denounced the promulgation of the decree _Ne temere_ in Ireland. Resolutions have been pa.s.sed against it here and in Ireland. Many Nonconformist bodies have protested against the promulgation of the decree in British Dominions. The decree is, I think, objectionable for several reasons, and not least because it discourages mixed marriages, an effect which seems to me deplorable, for nothing is better calculated to put an end to uncharitableness and hatred than the frequency of such unions. But while such a decree may do harm, it will have no direct effect except as between the members of the Catholic Church _in foro conscientiae_. The Irish marriage law, which with a few exceptions is the same as the English, is binding on all Catholics and Protestants. Lord Llandaff who speaks at once as a lawyer and as a Catholic, puts this point clearly:

"The invalidity was that of the sacramental and not of the legal marriage, and what the Church said to one of her subjects in such circ.u.mstances was: 'You are married; you are a husband; but you may not receive the sacrament, and therefore you are in a state of sin, and in that sense your marriage in void, according to your conscience, though not according to the law.' "(94)

A movement of retrogression the promulgation of the decree may have been; but every religious body must be free to lay down rules as to its members.h.i.+p. To quote the letter of the Archbishop of Canterbury of November 8th, 1911, on this subject: "Any branch of the Church of Christ must clearly have the power of defining the conditions of members.h.i.+p."(95) It is but fair to remember that the decree _Ne temere_ is part of a settled policy. The Church of Rome has often shown its disapproval of mixed marriages which Benedict XIV. declared "abominable."(96) It is but fair also to take note of the plea that this decree is the latest attempt to secure uniformity in regard to marriage law; attempts which have been pursued since the _Tametsi_ decrees of the Council of Trent. Before the reform in the marriage law then effected there was much confusion and looseness. All that was required for a valid marriage was that the contracting parties should express to each other their mutual consent by words _de praesenti_; a state of things which favoured fraud and led to uncertainty. The Tridentine change must appear to most lawyers to have been a great reform; marriage was to be solemnised in the presence of the parish priest of one of the parties and of two witnesses. But this ecclesiastical law is not even now in force in several countries. It was promulgated in most Catholic countries; it was never promulgated in purely Protestant countries, or in all countries with a mixed population. It applied to marriages between two Catholics but not necessarily to mixed or to Protestant marriages. It might be in force in one part of a country and not in another. Thus the _Tametsi_ decree was in force in the greater part of the province of Armagh since the time of Elizabeth. Not until 1827 was it promulgated in the province of Dublin. Now we are told that it was to secure still further uniformity that the decree _Ne temere_ was published.

It requires all persons baptized in the Catholic Church, and those who have been converted to it from heresy or schism, to marry in the presence of the parish priest or ordinary of the place in which the marriage is to be celebrated, otherwise the Church will regard it as null. If neither of the contracting parties is a Catholic the Church recognises the marriage as valid wherever it is celebrated.(97) How far other motives may have operated I cannot say; it is only fair to bear in mind that the decree is defended as a fresh effort to introduce certainty and definiteness as to a fundamental inst.i.tution.

I may here refer to the fears expressed as to the effects of the decree, _Motu Proprio, Quantavis Diligentia_ of October 9th, 1911; a decree which, it is said, might conceivably place every sincere Roman Catholic in antagonism with his duties to the State. The principle of that decree seems to me highly objectionable; it is an impossible attempt to revive the past; a form of the greatest of all heresies, disbelief in spiritual forces unsupported by privilege. But here, too, it is well to understand the case made by defenders of that decree, and before deploring its effects in Ireland to be certain that, in the view of the Catholic Church, it is in force there. When the Church was all powerful, there existed a _privilegium fori_ according to which no layman could bring a cleric before a lay tribunal; a privilege based upon the words of St. Paul to the Corinthians who resorted to the Pagan Courts. By various Concordats the Papacy had agreed to abrogate this right wholly or partly. In some countries the privilege had become extinct. In October 1869, was issued the bull of Pius IX., _Apostolicae Sedis Moderationi convenit_ which appeared to revive the _privilegium fori_. This, however, is denied by Roman Catholic theologians; according to them where no such Concordat exists, a custom has grown up that breaches of ecclesiastical immunity are to be overlooked; in any case it operates only as to canonical offences.(98) Whether that interpretation is correct or not, I need not enquire. But obviously such a rule has no legal efficacy; and it would be a strong measure to deny the Church the right to give to its adherents such monitions-for its commands are no more-as it thinks fit.

V. FUTURE SAFEGUARDS

In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed to secure equality of treatment. Thus the Irish Legislature was prohibited from making any law.

Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; imposing any disability or conferring any privilege on account of religious belief; abrogating or derogating from the right to establish any place of denominational education or any denominational inst.i.tution or charity; prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school; or impairing without either the leave of Her Majesty in Council first obtained on an address presented by the legislative body of Ireland, or the consent of the Corporation interested, the rights, property or privileges of any existing corporation, incorporated by Royal Charter or local or general Act of Parliament.

(Summary of Clause 4 in Bills of 1886 and 1893.)

Two comments may be made upon these provisions. They were so minute as to be at once a source of frequent irritation and certain to give rise to frequent conflicts with the Irish Legislature and as to be calculated to encourage litigation. Further, they did not specifically deal with the subject of marriage, an omission which, in view of the decree _Ne temere_, seems objectionable. They are replaced by a general clause to the following effect:

"In the exercise of their power to make laws under this Act the Irish Parliament shall not make a law so as either directly or indirectly to establish or endow any religion, or prohibit the free exercise thereof, or give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage."

How far these provisions will be eluded probably no one can say with certainty. It is difficult enough to ascertain the present situation in Ireland without attempting to predict with confidence the future.

Statements diametrically opposite are vouched for by persons of equal experience and opportunity of knowledge. "Facts" in that country are so elusive. What is true in the south is fiction in the north, and _vice versa_. It may be admitted that machinery designed to protect minorities counts for less than the spirit actuating those who work it. The greatest security no doubt for religious liberty would be the presence of a general spirit of mutual forbearance; militant bigotry could not permanently exist alongside the prevalence of the spirit of charity; and Ulster, as well as other parts of Ireland, might make its contribution thereto. Some new forces there are working for toleration, I believe that they are increasing. Among them are these: the action of democratic inst.i.tutions in which persons of all creeds take part; the prosperity of the country bringing in its train to all parts of the country new ideas and hopes and interests; the performance by Catholics and Protestants of common civic duties; the constant stream, strongly charged with secular elements, flowing between Ireland and the United States; the silent influence of literature and newspapers permeated by a spirit which no priesthood can exorcise; the frequency of mixed marriages as proved by the action of the Catholic Church against them; the existence of urgent political and social questions as to which men are not divided according to their religious beliefs. These are so many manifestations of the modern spirit, from the operation of which Ireland no more than any other part of the western world can escape. They may prove stronger than legal safeguards.

I shall not attempt to measure the relative strength of these influences, but I should be inclined to rate highest the ultimate effect of democracy, and of a Parliament in which must be a Protestant minority powerful by their talents, their wealth and their energy. Democracy has everywhere its own problems, as engrossing for it as any in which the Church is interested. It will solve them in its own way, which may not be always the Church's. "Nothing," says Mr. Bryce with reference to America, "excites more general disapproval than any attempt by an ecclesiastical organisation to interfere in politics." Under democratic inst.i.tutions there may be the same results in Ireland. The remodelling of primary education will probably be one of the first struggles in which an Irish Parliament will be engaged. The fight will be in the open, which is a clear gain. The Church may for a time succeed in retaining its present hold over the schools. It is quite as likely that it will lose ground, and that the first Irish Minister of Education will be the first to incur ecclesiastical censure. There is much evidence of the growth of a widespread toleration extending it may be hoped, to the northeast corner of Ulster:

"Since the Local Government Act of 1898," writes Mr. Annan Bryce, "it has not been found that the priest interferes unless in the rare cases where there is a question of personal morality, and then not always with success."

The opinions of three Lord-Lieutenants upon this point cannot be ignored.

Lord Aberdeen:

"After years of continuous residence in Ireland, watching affairs and meeting people of every cla.s.s and creed, I am profoundly impressed with the baselessness of alarm about the consequences of Home Rule.