An Open Letter to the Honorable Alfred E. Smith

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III

At the present time no question assumes greater importance than the education of youth. The legislature of Tennessee, of Oregon, and of Nebraska have of late laid impious hands upon it and the judiciary has sternly curbed them. From what has been said above, it is clear that the claims of the Roman Catholic Church touch this point; more than those of any other institution, may conflict with the authority of the State.

It is true that in the famous Oregon School cases the Supreme Court of the United States held a state law unconstitutional that forbade parents to educate their children at church schools of every denomination. But there was no assertion in the law that the church schools in question gave instruction inconsistent with the peace and safety of the State and there was no allegation of that tenor in the pleadings. On the record the church schools were void of offense. But, had that feature existed in the cases, it would necessarily have led to a reversal of the decision. There would have been conflict between Church and State as to whether the instruction was consistent with the peace and safety of the State. The Roman Catholic Church, if true to her doctrine, would have had to assert excusive jurisdiction over the determination of this point. Equally the State, in self-preservation, would have had to assert exclusive jurisdiction. The conflict would have been irreconcilable. What would have been the result and what the test of a sincere and conscientious Roman Catholic in executive office on the bench?

Nothing can be clearer to the American mind than that the plain political teaching of Pope Pius IX and of Pope Leo XIII, as set forth in their encyclical letters, is inconsistent with the peace and safety of the State within the meaning of those words as used by the Supreme Court of the United States in its great decision. That it is 'not lawful for the State to hold in equal favor different kinds of religion'; that it is not universally lawful for the State and the Roman Catholic Church to be dissevered and divorced; that the various kinds of religion in theory have their place in the State, not by natural right, but by favor; that dogmatic intolerance is not alone the incontestable right of the Roman Catholic Church, but her sacred duty; that in the case of conflicting laws of the State and the Roman Catholic Church the law of that Church shall prevail, are propositions that would make up a strange textbook for the instruction of American youth.

IV

A direct conflict between the Roman Catholic Church and the State arises on the institution of marriage, through the claim of that Church that in theory in the case of all baptized persons, quite irrespective of specific consent, Protesants and Roman Catholics alike, jurisdiction touching marriage is wrested from the State and appropriated to the Roman Catholic Church, its exercise reposing ultimately in the Pope. In Roman Catholic theory the civil contract over which the State claims jurisdiction merges in the religious sacrament of marriage, which is, as to baptized persons, exclusively within the jurisdiction of the Roman Catholic Church. Pope Pius IX in 1864 proclaimed in the famous Syllabus: 'It is error to hold that the sacrament of marriage is only a something accessory to the contract and separate from it.'

It would be generally conceded that the Roman Catholic Church—and indeed any religious society—has the natural right, in case of a question as to the validity of the marriage of a member, to determine as to whether that member may receive its sacramental ministrations and on what terms. Action by the Church would obviously relate only to the religious incidents of the civil contract and would leave untouched the civil contract over which the State claims jurisdiction. But the doctrine expressed by Pope Pius IX and the nature of the claims of his Church forbid such reasonable action. The Church proceeds in disregard of the law and sovereignty of the State, and claims, at its discretion, the right to annul and destroy the bond of the civil contract. The practical result of such claims in the conflict of Church and State appears in the light of the recent and notorious annulment of the Marlborough marriage.

The essential facts are few. It was the case of a marriage between two 'Protestants,' solemnized within the sovereignty of the State of New York, by ecclesiastics of the Episcopal Church duly authorized in the matter by the commission of that sovereignty. The parties took up their residence within the sovereignty of England. Twently-five years after the marriage, and after the birth of two children, the wife, disregarding the remedy of annulment that existed in the law of England and in the law of New York, as well as in the Roman Catholic Church (and, if she were entitled to it at all, could have been had for the asking in either jurisdiction), sued the husband for divorce in the English courts, on the grounds of his gross misconduct. The divorce was granted. After the divorce both parties contracted civil marriages with new partners, religious marriages being difficult for them for obvious reasons. The wife's second marriage was contracted with a Roman Catholic. An annulment of the first marriage became manifestly desirable.

In the courts of New York and of England, several matters barred the way. New York had solemnized the contract under the due and usual safeguards as to the freedom of the contracting parties, and, in her sovereign right, recognized the contract as valid. England, at the request of the wife, had recognized the New York contract as valid and had taken jurisdiction over it so as to base the civil decree of divorce upon it. The parties for twenty-five years had proceeded in a course of life based on the assumption that the marriage was valid, and the wife, by her own election under the advice of able counsel, had waived all claim to annulment and had sought divorce. In the jurisprudence of every civilized country the wife was estopped from claiming annulment, by her own acts, by the lapse of time, and by the conclusive presumptions of secular 1aw established in the interest of social morality and the sanctity of contracts. But the wife applied to the Roman Catholic authorities, who granted the annulment upon the theory that she had been under fear and duress at the time of the marriage thirty-one years before, and had not known in all that time that such fear, if it existed, established her right in the Roman Catholic court to an annulment. Disregarding facts in the case which might reflect upon the ingenuousness of the ecclesiastical court of the Sacred Rota at Rome, we would point solely to the fact that in the proceeding before that court the sovereignties of New York State and of England, and all that they had done in the matter, were ignored. The evidence at the time on the record of the English court, and conclusively against the c1ainis of the wife, was not even produced. The decree was granted on an ex parte hearing, on the testimony of interested witnesses only. It would be difficult to find a more utter disregard of the sovereignty of States than this by the sovereignty of Rome, touching that comity which in good morals and public decency is supposed to exist between sovereign powers.

In your opinion, sir, are such proceedings consistent with the peace and safety of States?

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