Tuesday, September 18, 2012

Conflicting Laws

If the State were to pass a law requiring anything to be done which is against the law of God, it would be the duty of the Church to censure any of her members who should obey the law.  Men must then choose, according to their private consciences, which of the Two authorities they will obey.  If they choose to obey the State, the Church can do nothing but exclude them from her pale.

   Such collisions are not very likely to occur.  The laws of the State which contravene the Divine law chiefly relate to marriage and are not very numerous.  They are practically only permissive.  The State leaves every person at liberty to marry or not at his or her choice, and, with a few exceptions to marry whomsoever he or she will.  But it compels no person to marry, still less to marry any particular person.  When a person contracts a marriage which is against the law of God and not against the law of the land, he has offended and is liable to Church censures; but if he do not contract such a marriage he offends neither the Church nor the State, for the law of the State is only permissive.  It is more correct to say that there is no State law on the subject.  When, therefore, the Church censures a person for a marriage which the State does not forbid, there is no collision between the Church and the State.  What one permit’s the other forbids, and a person who is subject to both ought to obey the stricter law.  There is really no difficulty until a case shall arise in which one forbids what the other commands.

   Thus the laws which allow the dissolution of a valid marriage, and the marriage of the parties to it to other persons without waiting for the death of either, are really only permissive.  No person is obliged to apply for a divorce, or having obtained one, or having been forced to submit to one, is obliged to marry again.  The State does not command either of these things, and the Church does not provoke a collision by forbidding them.

   The legislation of the American Church is peculiar.  Its discipline is applied to offenses which are not defined in the canons otherwise than by the most general reference to the Divine law.  The effect is that the interpretation of the Divine law is committed to the judges who administer Church discipline.  Public opinion requires that they shall take the law of the land for their guide, or, as the framers of public opinion prefer saying, that they should obey the law of the land.  They should obey the law of the land when it is not in conflict with the law of God; but they should not subject the law of God to the law of the land.

   When a question arises whether the law of the land conflicts with the law of God, it cannot be decided by the law of the land, which is of inferior authority to the law of the God.  The law of God, which is the higher law, must be the rule, and conscience the judge to apply that rule.  Every one who is called upon to act upon the question must decide it for himself, as every one who is called to act upon any question must decide it for himself.  The private man must decide it according to his conscience.  The officer of the Church, who is called to advise, direct, or judge the conduct of the private Christian, must decide according to his private conscience, unless the Church has furnished him with a rule.  The Church herself, in her legislative capacity, must be governed by what may be called her aggregate, or public conscience.

   If the two laws do not conflict, every one, including the authorities of the Church, must obey both.  If one permit what the other forbids, men should respect the prohibition.  If one command what the other forbids, we must obey God rather than man.  Suppose a man should apply to be received into the communion of the Church who had married after a civil divorce which was contrary to God’s law.  How ought the rector of the parish to act?  Public opinion would perhaps say that the twice-married man should be received, because he had done nothing not allowed by the law of the land.  But the true question is, Has he done an act contrary to the law of God?  The law of the land, which is, at best, an interpretation of the law of God made by temporal rulers for temporal purposes, has nothing to do with spiritual questions.

   The State may interpret the law of God for her own purposes; but she has no right to interpret it for those of the Church.  She may decide what actions are injurious to the spiritual welfare of the agent.  Moreover, it is notorious that the rulers of States do not now even pretend to interpret the law of God.  They avow that they act only upon their own notions of expediency.  This is an abuse of power, but the legitimate authority of the State is not impaired by it.  To suppose that her authority could be forfeited by abuse, would render all government impossible.  The laws of the State, however they may conflict with the law of God, are binding in the courts of the State.  A judge whose conscience will not permit him to execute a law of the State should resign his position.

   In the supposed case the second marriage is not legally bigamy.  The husband has the same legal control over his de facto wife and her property as any other husband.  The so-called wife has a legal right to be supported by the de facto husband according to his means and condition.  At his death she will be entitled to a wife’s share of his estate.  The true wife has lost her right to a support and to a share in the distribution of her husband’s estate.  The children of the second marriage are legitimate.  All these effects the act of the State can produce; but it cannot make a sin to be no sin.

   The Church has neither the right nor the power to interfere with these civil matters; but she has a right to declare that such an union is sinful and prejudicial to the spiritual interests of those between whom it has been formed.  It is not necessary that the declaration should be a legislative act, which would give no additional force to a Divine law, though such an act might be of great service to individual clergymen as a defense against public opinion.

   The true idea of a legislative act is that it is an exposition of the Divine law, if the meaning of which, or of its application, there may be some doubt.  St. Germain, an old writer on the Common Law, states this truth thus: “The law of man (the which sometimes is called the law positive) is derived by reason as a thing which is necessary and probably following of the law of reason and of the law of God.  And that is called probable, in that it appeared to many, and especially to wise men, to be true.  And therefore in every law positive well made, there is somewhat of the law of reason, and somewhat of the law of God.”

   A legislative act is binding upon all persons who are providentially under the authority of those by whom it is made, so far as their jurisdiction extends, but no further.  The jurisdiction of the State does not extend to spiritual matters, except just so far as it may be necessary to protect herself, or her citizens or subjects, from injuries attempted to be cloaked under spiritual forms.  Even then it does not extend to the decision of what is, and is not sin.  Her exposition of the law of God for such a purpose is without authority.  The exposition of the Divine law for spiritual purposes, belongs to the Church.  But a legislative interpretation of a plain Divine law is unnecessary.  The church may therefore leave such a Divine law to be interpreted by her judicial and administrative officers.  It does not follow, that they are to follow the interpretation of the State, when it contradicts the true sense of the Divine law.

      by - -  H. D. Evans

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