Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876

No. 81.
Mr. Davis to Mr. Fish.

Legation of the United States,
Berlin, May 1, 1876. (Received May 17.)

No. 358.]

Sir: Soon after transmitting my dispatch No. 291 to the Department, I requested Mr. Coleman to examine the various laws and papers relating to the National Evangelical (Lutheran) Church of Prussia, which might be necessary for the comprehension of the proposed law inclosed in that dispatch. Mr. Coleman’s subsequent illness, and then his journey to Metz to execute an instruction from the Department, interfered with his performance of this work.

I have now to inclose his detailed report upon the subject. With its aid the Department can see what the proposed legislation aims at, and will be able to comprehend such laws as may be enacted touching the subject, after the railway bill is out of the way.

* * * * * * *

I have, &c.,

J. C. B. DAVIS.

(Inclosure.)

Legation of the United States,
Berlin, April 28, 1876.

Sir: Pursuant to your instructions to examine a proposed law concerning the evangelical church constitution in the eight older provinces of the Prussian monarchy, a translation of which was heretofore transmitted to the Department of State with your No. 291, and to report upon its bearings and present status before the Prussian house of deputies, I have the honor to report as follows, submitting with my report summaries in translation of the proceedings in the house and of newspaper comments thereon, together with certain printed laws and papers either bearing upon or referred to in the proposed law, and hereinafter more particularly designated in a list of accompaniments.

Stated in general terms, the ends sought by the government in the proposed law appear to be to give, in so far as may be necessary, the sanction of state legislation to the general synodal regulation of the 26th of January, 1876, which was designed to supply a supposed need, in affording to the church, through the instrumentality of a grand representative body clothed with authority and dignity, and meeting at stated periods, unity and independence in the administration of its affairs in a degree which it had not yet enjoyed.

Such organization, it is claimed, is especially needed for the better representation of the church communities in external matters, such as relate to property-rights, to the administration of church property, to the right of taxation by the church, by which is meant the right to require communities and churches to raise the means necessary for church purposes, and particularly such as are needed to defray the expenses of the administrative bodies.

State legislation, it is suggested, is needed to give sanction to provisions contained in the general synodal regulation relating to these and other kindred subjects, and also to repeal such existing state laws or regulations based on recognition by the state as are opposed to the new church constitution, it being stated in this connection, however, that such provisions as are without closer interest for the state should be left to the untrammeled determination of the organs of the church, especially those provisions which concern the manner of constituting its representative bodies in so far as purely internal matters of the church are placed under their control.

The views of the government looking in the above-indicated direction find expression in the first eighteen articles of the proposed law.

Articles 19 to 26 (the 27th and last article confining itself to the repeal of such laws as oppose or contradict the proposed law) occupy themselves with the following questions:

The government holds that a realization of the desired independence of the church in the administration of its affairs cannot be achieved until the right of surveillance on the part of the state is regulated anew and defined with precision, and argues that such course having been already pursued with reference to the catholic church communities by the law of June 20, 1875, similar measures should now be adopted with reference to the evangelical church, which would otherwise remain subject to a different law of surveillance, and one not in accord with the independence to which it is entitled.

Another question regarded by the government as of moment in connection with the bestowal of independence upon the evangelical church is one in which an advance has already been made by a former regulation, the church-community and synodal regulation of September 10, 1873, (an accompaniment hereto,) the question of abolishing the separation of the internal and external affairs of the church as regards the organs administering them, and of uniting the administration of both classes in the organs of the church. This line of action should also be pursued with reference to the higher spheres of the organization, and the jurisdiction of church organs extended to so-called “externa,” in so far as the interests of the state permit, the jurisdiction of the state authorities being correspondingly contracted and their retained rights precisely defined.

After a lengthy debate in the house of deputies, the proposed law was referred to a committee consisting of 21 members, representing the various views entertained and advocated with respect to its merits as a whole, or to the merits of such of its provisions as had given rise to conflict of opinion. It has now been reported back to the house, and is appended hereto, in its amended form, in a translation, in which the additions to and alterations of the original draught which the committee have suggested are, where feasible, indicated by underscoring in order to facilitate comparison.

As indicated by the debate in the house preceding reference to the committee, and by the action of the committee itself, the following articles or provisions of articles of the bill are those on which interest chiefly hinged:

Article 8 makes special provisions as to the rights that may be exercised by the united circuit synods of the capital city, Berlin.

The question here is of the establishment of a common synodal treasury and the levying of a general assessment for church needs within the individual communities of the entire synodal district. In consideration of the peculiar conditions of the city of Berlin, it was thought proper to resort to an extraordinary measure. A population of 844,350 inhabitants of the Evangelical confession, the city rapidly increasing in population, its limits rapidly extending, the vast number of changes of domicile, amounting at certain periods of the year, it is asserted, to an emigration of the inhabitants from one part of the city to another—all this appeared to render the local keeping together of a church community and the normal raising of the funds necessary to meet the wants of the individual community a matter of extreme difficulty. This article comes from the committee with restrictions as to the nature of the general assessments allowable, and as to the purposes for which the fund so derived may be used. A supplementary article (Article 8 a) is also reported, which provides that at other places a similar course may be pursued, under certain circumstances, with reference to two or more parishes of the same place.

Article 12.—In this article the object of the government seems to have been to afford guarantees against conflicts as to the boundary-line separating the authority of the state from that of the church, and against a transcending of the limits of its competency by the latter; firstly, by the express recognition of the superiority of the state laws over those of the church; secondly, by making it the duty of the minister for ecclesiastical affairs to examine church laws in advance of their submission to the King for approval, in order to determine whether the state has any objection to raise. As reported by the committee, the phraseology of the provision declaring the superiority of the state over the church law appears to be more comprehensively and vigorously expressed than before, reading now: “State laws take precedence over those of the church.” As regards a second guarantee, that concerning a previous examination by the “minister for ecclesiastical affairs,” the committee reports that such examination be by “the responsible state ministry,” it having been contended that another minister than the one named in the government bill might sometimes be the responsible one. The committee further reports that the fact that such examination has resulted in no objection being found should be stated in the formula of promulgation. The committee also adds a clause declaring that a contradiction of a state law by a church law or rule shall, upon motion of the state ministry, be removed by royal decree.

Article 14 a, containing important restrictions upon the preceding article, is the result of a lengthy debate in the committee, in which it was contended that article 14 did not sufficiently control the measure of taxation by the church. A guarantee was wanted against the too great extension, in consequence of the varied wishes and needs of the church and of its personnel, of the newly-conceded right of taxation. A maximum rate, it was maintained, should be established, to be determined by the amount of personal (class and income) taxes paid by the Evangelical population.

This article contains a special measure with regard to the city of Berlin, providing that no provincial assessments shall be there levied. It was successfully contended that its united synods had already the importance of a separate province; the intention to constitute it such had been freely uttered, and it would therefore be unreasonable to compel it to share the burdens of the provincial synod of Brandenburg, in which it has no interest.

Article 15, which provides in the main for the imposition upon the better-endowed churches and benefices of a portion of the burdens of the poorer, was adopted by the committee, although the objection was raised that such legislation was unfair, after the insertion of several modifications, the principal of which were: one declaring that the rights acquired by owners of benefices antecedent to this law should not be affected thereby; the other, that the consent necessary to this measure should be required of the state ministry, instead of the minister for ecclesiastical affairs.

With article 19 begin those articles of the bill which occupy themselves with separating and distinguishing between the functions, hitherto mingled, of the state power and of the church power. It provides for the transfer of the administration and conduct of the affairs of the church from the minister of public worship and the governments to the upper church council and the consistories, which gave rise to much discussion in the committee, resulting, however, in the adoption of the article with some minor modifications, and the addition of a clause declaring that any change in the colleaguate constitution of the above-mentioned organs should require the sanction of a state law. This clause was added to meet the objection that future church legislation might utterly change the present constitution of these organs.

Article 20, declaring the power of the state authorities in church affairs concerning the military and public institutions as unaffected by this act is left unaltered in the committee’s report.

Article 21.—The committee recognizes the functions herein reserved to the state authority as in accord with past legislation and as proper to be retained in the interest of the state. It being, however, considered very important that the co-operation of the state authorities, especially the countersigning by the minister, should be retained to the extent heretofore exercised in the filling of church offices, a clause providing therefor was added. Another was added assuring to the state co-operation in the introduction and abolishment of general church holidays.

Article 21 a, declaring that the administration of the Evangelic theological faculties of the universities of the country, especially the appointment of professors, belongs exclusively to the state authorities, was added by the committee, upon the suggestion of the experiences of the last generation with regard to church interference in the appointment of theological faculties.

Article 22 is left unchanged, the committee recognizing that the cases therein enumerated, in which the right of confirmation is reserved to the state authorities, are already contained in the laws of 1874 and 1875, concerning the administration of the property of the Evangelical and of the Catholic Church, and approving the endeavor manifested to legislate, as far as the nature of the subject permits, as in the law for the administration of the Catholic Church property.

The remaining brief articles, with the exception of article 25, remain unchanged. The reservation to the state in this article of the right of inspection and revision of church accounts the committee regards as proper, and as in accordance with the provisions made for the administration of the property of the Catholic Church, but deems it proper to give the state an additional guarantee, by adding a clause declaring that this law makes no change as regards the responsible administration and employment of state funds for designated church purposes.

The bill as reported by the committee will probably be taken up in the house at an early day.

Respectfully submitting the foregoing, I have the honor to be, sir, your obedient servant,

CHAPMAN COLEMAN,
Second Secretary of Legation.

Hon. J. C. B. Davis,
Envoy Extraordinary, &c.

Accompaniment 3 to report on Evangelical Church bill.

[Changes from the original draft are indicated, where feasible, by underscoring.]

Bill as reported by the committee.

A law proposed for the organization of the church (Evangelical) in the eight older provinces of the monarchy.

We, William, by the grace of God King of Prussia, &c., ordain, with the concurrence of both houses of the Landtag of the monarchy, for the provinces of Prussia, Brandenburg, Pomerania, Posen, Silesia, Saxony, Westphalia, and for the Rhenish Province, the following:

Article 1.

The synod organs, constituted under these provisions and provided for by the “regulations of church communities and synods,” dated 10th September, 1873, (Laws of 1874, p. 151,) and by the regulations of general synods, dated 20th January, 1876, and attached hereto, shall exercise the following rights, according to the provisions of this law.

Article 2.

Unchanged, except that subdivision 4 reads:

4. The statutory orders, (§ 53, No. 8.) The resolutions necessary for the execution of these rights shall be passed as provided by § 52, clauses 3, 4.

Article 3.

Read, instead of “two weeks,” twenty-one days.

Article 4.

Read, instead of “proposed provision,” proposed provisions.

Article 5.

The direction of the circuit synod exercises the right to make preliminary decisions in cases of haste in accordance with the cosupervision assigned to the synod by § 53, Nos. 5 and 6. (§ 55, No. 6.)

Article 6.

The rights which belong to the circuit synod and its direction, according to articles 2 to 5, are transferred to the united circuit synods, and their directions for the common affairs in the case provided for by § 57, clause 1, when the union takes place with the consent of the individual circuit synods.

Article 7.

Unchanged.

Article 8.

Reads: In the regulation for the united circuit synods of the capital city, Berlin, the right may be given them—

1. To make determination concerning changing, abolishing, or introducing general fees for all the communities.

2. To order general assessments for the following purposes:

a. To make compensation for surplice-fees that are to be abolished in so far as the church treasuries of the communities are not able to meet the deficiency.

b. To grant assistance to poorer parishes to provide for pressing church needs.

If the assessment for this last purpose exceeds three per cent. of the amount of personal taxes (class and income tax) due from the members of the community, permission by state law must be obtained.

The assessments must be levied uniformly and simultaneously in all the communities; and the provisions of § 31, No. 6, of the regulation for church communities and synods, of 10th September, 1873, shall be the basis of the repartition.

Article 3, clauses 3, 4, of the law of 25th May, 1874, shall apply to the resolution concerning such assessments.

It is forbidden to borrow money.

3. To establish a synodal treasury for the reception and use of the assessments levied.

For the bestowal upon the shortly to be established provincial synod, Berlin, of the rights conceded to the provincial synods in this law, a state law shall be necessary.

Article 8–a.

In other places the purposes designated in the above provision can be declared as being general affairs in the sense of article 4 of the law of 25th May, 1874, upon the joint motion of the representation of all or of several parishes of the same place.

Articles 9, 10, and 11.

Remain unchanged.

Article 12.

The state laws take precedence over the church laws.

The King shall not be applied to for his sanction of a law made by a provincial synod, or by the general synod, until it shall have been established by a declaration on the part of the responsible state ministry that the state has no objection to make to the law.

That such is the case is to be stated in the formula of announcement.

Should a church law or a church regulation contradict a state law, the contradiction is to be removed by royal decree upon the motion of the state ministry.

The provisions of this article obtain also within the scope of the church regulation of March 5, 1835, for the province of Westphalia and the Rhine province.

Article 13.

Unchanged.

Article 14.

Unchanged, except that the following is to be added to the first paragraph:

“The consent is to be stated in the formula of announcement.”

Article 14–a.

The entire sum of the assessments determined upon under article 9, No. 3, and 13, No. 2—leaving synodal expenses out of consideration—shall not, for the purposes of the provincial and land church, exceed four per cent. of the entire amount of the class and income-tax of the population belonging to the Evangelical National Church.

How much of the assessments permissible within these limits may be levied by the provincial synods, and how much by the general synod, shall be determined by a national church law.

Church laws which exceed this rate require the confirmation of a state law. The same is the case when church laws direct the imposition of a burden upon communities for community purposes or produce such a result.

Upon the city synod, Berlin, no provisional assessments shall be levied.

Article 15.

Church laws, by which the receipts from the church property or the benefices are applied as contributions for church purposes, (§ 15 of the regulation for the general synod, dated 20th January, 1876,) shall not injure the owners of benefices in such rights as hey may have acquired before the publication of this law, must direct the payment in the everal classes of church treasuries or benefices at the same rate, and require the aproval of the ministry of state.

The approval is to be mentioned in the formula of publication.

The approval shall not be refused if the law has been regularly passed and the contents are in harmony with § 15 of the regulation for the general synod of 20th January 1876.

Church communities which prove that they cannot dispense with the full surpluses of their church treasury on account of needs to be met in the next following years are to be relieved from this contributory obligation for the time being.

The contributions may be collected by the way of administrative execution.

Exception may be taken to the execution within twenty-one days from the receipt of the demand of payment on the ground that the assessment is not in accordance with law, or that the calculation of the amount is incorrect, or that the church treasury is discharged from the obligation to contribute by subdivision 2. The state tribunal passes upon the exception.

Article 16.

Unchanged, except that the concluding words “and 3” are stricken out.

Article 17.

Unchanged, except that the words are to be added to the first paragraph: “The authority to borrow money is not included herein.”

Article 18.

Unchanged.

Article 19.

The administration of the affairs of the Evangelical National Church, (Landes Kirche,) in so far as the same has heretofore been exercised by the minister for ecclesiastical affairs and by the government, is transferred to the evangelical upper-church council and to the consistories as organs of the church government.

The time and the execution of the transfer is reserved for royal ordinance.

Changes in the “colleagual” constitution of these organs need approval by a state law. (Regulations for the general synod of January 20, 1876, § 7, No. 5.)

Article 20.

Unchanged.

Article 21.

Unchanged down to and including subdivision 6, then as follows: (7.) Co-operation in filling church disciplinary offices, or in directing an administration of them by a commission. This co-operation is to be continued within the same bounds as heretofore. It is particularly required that the appointment of the members of the church disciplinary tribunals shall be countersigned by the ministry of spiritual affairs; (8.) Co-operation in introducing or abolishing general church holidays.—(§ 7, No. 4.)

Article 21.

The administration of the evangelical theological faculties of the universities, and particularly the appointment of professors, devolves exclusively upon the state tribunals.

Articles 22, 23, and 24.

Unchanged.

Article 25.

Unchanged, except that the following paragraph is added:

As regards the responsible administration and employment of the state funds for the particular church purposes, nothing is changed by this law.

Articles 26 and 27.

Unchanged.