The New Irish Constitution: An Exposition and Some Arguments. Various

Constitutions. The provision which Jefferson caused to be inserted in the Virginia Bill of Rights and the article in the Massachusetts Declaration of Rights have been copied with variations by the States. Speaking generally, they provide for equality of treatment of religious denominations (Stimson, “Federal and State Constitutions,” p. 137). In the Constitution [pg 097] of the United States there is only one Article on the subject (Amendment, Article 1). “Congress shall make no law respecting the establishment87 of religion or prohibiting the free exercise thereof.” In the United States true equality exists; all denominations are treated alike; the modern tendency towards equality has triumphed as the result partly of national habits and partly of constitutional restrictions.

      I may here cite one or two examples of modern Constitutions which have laid down principles designed to secure religious equality.88 Naturally Switzerland, with its population nearly equally divided into Catholics and Protestants, has been obliged to deal with this question, and so far as I am aware, it has done so with success. The principles of religious equality are embodied in the amended Constitution of 1874. I quote the chief provisions, because they are on the whole the most complete set of existing safeguards which I have found.

      “Article 49.—La liberté de conscience et de croyance est inviolable. Nul ne peut être constraint de faire partie d'une association religieuse, de suivre un enseignement religieux, d'accomplir un acte religieux, ni encourir des peines, de quelque nature quelles soient, pour cause d'opinion religieuse.

      “L'exercice des droits civils ou politiques ne peut être restreint par des prescriptions ou des conditions de nature ecclésiastique ou religieuse, quelles qu'elles soient.

      “Nul ne peut, pour cause d'opinion religieuse, s'affranchir de l'accomplissement d'un devoir civique.

      “Nul n'est tenu de payer des impôts dont le produit est spécialement affecté aux frais proprement dits du culte d'un communauté religieuse à laquelle il n'appartient pas. L'exécution ultérieure de ce principe reste réservée à la legislation fédérale.

      [pg 098]

      “Article 50.—Le libre exercice des cultes est garanti dans les limites compatibles avec l'ordre public et les bonnes mœurs.

      “Article 54.—Le droit de mariage est placé sous la protection de la conféderation.

      “Aucun empêchement au mariage ne peut être fondé sur des motifs confessionels.”

      While declaring the principle of liberty of conscience, the Swiss Federal Constitution 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 provisions89 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

      [pg 099]

      In framing the Constitution 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 class 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 circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the [pg 100] 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 [pg 101] 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 Constitution of the Australian Dominion is a provision similar to that quoted above from the Constitution of the United States. (Section 116):

      “The Commonwealth shall not make any law for establishing 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 constitution.”

      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 association; its position theoretically [pg 102] no better and no worse. It possesses autonomy; it enjoys freedom as to doctrine and worship; its constitution is not interfered with; it regulates clerical education; it nominates its bishops;