How to obtain and still more how to secure such liberty or equality is a problem in every modern State. The actual solutions, though many, fall into a few [pg 095] groups[86]; I enumerate the chief. There are countries with State Churches in which have gradually been made concessions to other denominations. England is the typical example. Religious equality (so far as it exists) is the result of a long series of measures; the successive removal of disabilities of Dissenters and Roman Catholics; of measures relating to the tenure of public offices, and as to marriage, or oaths. No one Act states any governing principle. After the fashion of English legislation there has been movement from point to point, though, on the whole, always, or with few relapses, in modern times, in one direction. The securities for equality are found in a long series of individual statutes. Such, also, may be said to have been the history of religious equality in Hungary; as in so many countries there has been a gradual abandonment of the old maxim cujus regio, ejus religio.
I am concerned with the safeguards for equality within a State, and so I need say little or nothing of the Gallican system, which was intended to secure liberty against foreign intrusion. It was the liberty claimed by a church, which refused toleration to other denominations; the protests of a national Church part of [pg 096] Catholicism against the intrusion of the Papacy; it was the assertion of claims, which, to quote Saint Simon, “blessent douloureusement la Cour de Rome”; assertions of the doctrine that the French kings were in secular matters independent of the Pope, and that the Pope's spiritual authority was limited by the laws of the church. In some countries, churches have secured a large measure of religious liberty or autonomy by means of Concordats with the civil Power. The typical case is that of the Catholic Church in France, where such a system may be said to have existed from the Concordat of Bologna, concluded between Francis I. and Leo X. in 1516, until recent times, with the exception of a short break at the Revolution; they may be said to have established an offensive and defensive alliance between Church and State.
I come to systems and devices chiefly used in modern times to secure religious liberty or equality. They are to be found in particular in countries possessing written constitutions. Either they lay down with more or less clearness principles of religious equality, or, dealing specifically with some pressing danger or difficulty, they provide a safeguard as to it. The first striking example of this kind of restriction is to be found in America. Dread of the existence of an established Church and of its ultimate effects upon republican institutions was shared by the framers of the United States Constitution and most of the framers of the States 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 establishment[87] 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.
“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.