The press will have amply acquainted you with the pitifulness of the issues
presented for debate, such as whether a school-mistress in Minorca had been
rebuked for walking in public with several little girls of Protestant
families; whether a peddler in Valladolid had been hindered from crying
Bibles for sale in the public streets; whether the subgovernor of Minorca
had entered a room habitually used for dissident worship, or only a
school-room used occasionally for such worship; and whether the offending
sign-boards in Madrid had been partly blotted out by the authorities with or
without the consent of the pastors. Several marked art cles which appeared
in the foreign press, and in which these pettinesses were somewhat sharply
commented upon, produced the natural and perhaps not over-beneficial result
of merely irritating the sensibilities of the public and the government.
Finally, the representatives in England of the religious works established
here under English contro petitioned the secretary of state for foreign
affairs to exert influence with the government of Spain to the result of
being advised by Lord Derby to procure the opinion of a competent Spanish
lawyer as to the true meaning of the eleventh article of the new
constitution, on which the dispute really turned.
This charge was intrusted to the agent in Madrid of the British and Foreign
Bible Society, the Rev. Mr. Corfield. This gentleman had the best legal
right of complaint of any of the foreign propagandists, inas much
[Page 477]
as he keeps a shop for the sale of
Bibles, and pays the regular trades-tax (contribution
industrial) for the privilege of carrying on his trade,
notwithstanding which his sign-board, which simply said “Depositary of the
Holy Scriptures,” was one of the first to be expunged, to the grave
prejudice, as Mr. Corfield maintained, of his lawfully-licensed business.
Mr. Corfield with much sagacity selected, for the purpose of consultation,
Don Manuel Alonso Martinez, a jurist of high repute, formerly minister of
grace and justice in 1874 under General Serrano, and one of the commission
of notables charged with preparing the draft of the present
constitution.
The interrogatories propounded to him were: Whether a duly-licensed vender
has a right to announce by sign-boards the objects he is authorized to sell;
whether itinerant venders have the right to cry the wares they are licensed
to sell, (in this case Bibles;) whether, the inviolability of places of
worship being proclaimed, it is lawful to denote their object, when
non-Catholic, by means of undenominational inscriptions, such, for instance,
as this, “Church of Christ;” and, lastly, by what right, basing its action on the words “public manifestations,”
employed in the eleventh article, has the government prohibited sign-boards
referring to dissident worship or propaganda, and forbidden the public
crying of Bibles in the streets?
To these inquiries, or rather to the general spirit of them, Mr. Alonso
Martinez has replied in a well-written opinion, in which the eleventh
article of the constitution is analyzed with much detail. A translation of
this opinion is hereto appended for your information.
You will observe that, with respect to inscriptions denoting a place of
worship, Mr. Alonso Martinez is of opinion that, while they are logically
admissible, yet no one can rightly accuse the government of a constitutional
infringement in prohibiting them; and that, in so far as concerns the trade
in Bibles, he relegates the whole matter to the law for the regulation of
the press, yet to be drawn up in conformity with the thirteenth article of
the constitution.
I do not know that it is in place for me to follow or comment upon the
reasoning of Mr. Alonso Martinez in his analysis of the letter and
interpretation of the spirit of the much-disputed eleventh article. He had a
large share in drafting it, if indeed it was not, as is said, due to his own
pen, and therefore no one is more fit than he to elucidate its obscurities.
On the one hand, the explanations given in the Senate and Congreso by the
adherents of the government, and the bitter opposition of the ultramontane
party to its “mistaken” and “un-Catholic” liberalism, as they said, would
seem to invest the controverted article with all the tolerance and liberty
claimed for it in some quarters. And, on the other hand, adopting Mr. Alonso
Martinez’s proposition as to the necessary elasticity
of constitutional precepts in order to allow of extreme political
parties governing within their limits, it seems equally clear that the
letter of the article is capable of a far more restricted construction than
that which is placed upon it by the government presided over by Mr. Canovas
del Castillo.
It is probable, however, that those who anticipate word-quibbles of this
character do but borrow needless trouble, and that the larger views will
prevail, and continue to prevail, which grant practical inviolability to
dissenting temples and cemeteries, and which admit of the propaganda of
opinions and religious belief, within proper limits, to be fixed by special
laws.
[Inclosure.—Translation.]
Opinion of D. Manuel Alonzo Martinez on the question
of the interpretation of article 11 of the
Spanish constitution of 1876.
opinion.
I. After mature consideration of the terms in which the inquiry is
propounded, and also of the text of the constitution, I proceed to set
forth my opinion with the sincerity and frankness demanded alike by the
sacredness of the subject and by that of my professional duties.
I must be permitted to invert the order of the questions proposed to me
by the society, because it is logically necessary to do so inasmuch as
the two first interrogatories in reality rest upon the third one.
In order to ascertain whether it is or is not lawful to place upon the
front of a place of worship a sign-board announcing its object, it
becomes needful to analyze, both in letter and in spirit, the eleventh
article of the Spanish constitution.
The first paragraph of that article leaves no room for doubt. It
declares, in effect, in the clearest manner, that the state, far from
being godless or indifferent, maintains a religion in our midst, namely,
the Catholic faith, which is that professed by the immense majority,
almost the totality, of Spaniards; and, as the consequence of this
declaration, it in terms positively binds the nation to the obligation
of maintaining the worship and the ministers of the official
religion.
The second paragraph is equally clear. The only expression therein,
which, on certain occasions, might possibly seem ambiguous, and give
rise to doubts and controversies, is this: “Saving the respect due to
Christian morality;” but fortunately this saving clause, which does not
extend to any of those who recognize the authority of the Bible, and
live in submission to the precepts of the decalogue, has still not any,
even the remotest, application to the confessions which admit the
divinity of Jesus and believe in the Holy Gospels. Bearing, therefore,
in mind the position and aims of the society which proposes the
inquiries, we may well forego analysis of the first phrase, and simply
say that, in so far as it and its kindred organizations are concerned,
the second paragraph of the eleventh article prohibits the government of
His Majesty from molesting any one for his religious opinions or for the
exercise of his respective form of worship, (culto.)
It is not so easy to fix with absolute certainty the full reach or scope
of the exception, or rather limitation, contained in the third and last
paragraph. In examining this, it is my duty to consign to oblivion the
share I had in drawing up and approving the same, a work which I have
certainly no cause to repent of. Political science is not purely
speculative; it finds its inspiration in realities and exists only by
yielding to circumstances, without which mutual concession nations would
perish.
This statement will suffice to ward off any unjust criticisms, and we now
proceed to the main point, namely, the grammatical analysis of the
paragraph in question.
It runs thus.: There will not be permitted, nevertheless, other ceremonies or public manifestations, other than those of the religion of the
state.”
That this paragraph is a limitation of that which immediately precedes
it, there is no doubt. This is shown, not merely by its sense, but even
by its construction and by the use of the adverb “nevertheless,” (sin embargo.)
But does the third paragraph modify and limit the whole of the second
paragraph, or only a portion of it? To put it more clearly, does the
prohibition of ceremonies and public manifestations limit only the
liberty conceded in the second paragraph for the exercise of the form of
worship, or is it also a limitation of the liberty of religious
opinions?
[Page 479]
The text being grammatically examined, the solution of this question
would be clear if the framers of the constitution had confined
themselves to the use of the word “ceremonies,” without adding “public
manifestations.” “Ceremonies “have nothing to do with the emission and
propaganda of opinions, but the word “manifestations” is more
indefinite, more vague, and, by reason of its very vagueness, it is
capable of diverse interpretations.
“Ceremony,” according to the Dictionary of the Academy, is an external
act or action, regulated by law, statute, or custom, for the purpose of
rendering honor to divine things, while “manifestation” is, in its
etymological sense, the declaration and bringing to view of anything
which was previously occult and concealed, and in its political sense
the public expression of a sentiment or of an opinion. There is room,
therefore, for the possibility that some might seek to give to this
constitutional article a restrictive interpretation, alleging, first,
that if Spanish legislation establishes as a rule of interpretation,
even in the case of wills made by ignorant rustics, that words must be
understood simply, clearly, and as they stand, with much more reason
must this principle be applied to the interpretation of laws, especially
as it is to be presumed that the maker of the law has perfect knowledge
of the Castilian tongue and of the nature of each one of its words;
secondly, that for this same reason it is not allowable to assume that
the words “ceremonies” and “public manifestations” are synonymous, since
on such hypothesis the law-maker would have fallen into a useless
redundancy; and, thirdly, that if, according to the Dictionary of the
Academy, which is the supreme authority on the subject, “manifestation”
is the declaration or bringing to view of something previously
concealed, or the public expression of a sentiment or an opinion, it
appears logical to infer that the third paragraph limits the totality of
the second, or, what is the same thing, that it prohibits absolutely the
public manifestations, as well of opinions as of forms of worship, which
dissent from the official religion. But against such an interpretation
there present themselves two equally strong and decisive reasons: the
one founded upon what logicians call the argumentum ad
absurdum, and the other on the principle of contradiction, the
irrefragable basis of human positive knowledge.
It cannot, indeed, be imagined that the third paragraph alludes to the
liberty of religious opinions, without the whole constitutional article
immediately becoming contradictory and at variance with itself. To be
convinced of this, the best way is to set the two propositions side by
side in order to contrast them. The first proposition, “No one shall be
molested in Spanish territory for his religious opinions.” The second:
“There will not be permitted the manifestation, the bringing to light,
the declaration, or the public expression of other religious opinions
than those of the religion of the state.” The conflict, the
contradiction, of these two propositions is so evident that any
commentary on this point seems to me to be needless; it is enough to
read them and to compare their phraseology in order to carry conviction
to the mind. Now, then, the supreme rule of criticism and of legal
interpretation is that the diverse clauses of a law be explained in such
a way as not to contradict one another, because contradiction is the one thing impossible. It assumes in the
legislator not merely ignorance but unsoundness of mind.
No less patent is the argumentum ad absurdum. In
effect, were we for an instant to imagine that the third paragraph of
the constitutional article prohibited the manifestation of any religious
opinion contrary to the dogmas and the discipline of the Catholic, that
is, of the official, church, the result would be that the first part of
paragraph 2 of Article XI is superfluous and worse than useless; and
that, strictly speaking, what the fundamental law (i
e., the constitution) does is to authorize the establishment of
the tribunal of the inquisition. The proof is clear. On such hypothesis,
what would the second paragraph of the article guarantee? Solely the
right of holding beliefs different from the Catholic faith, on condition of not expressing or manifesting
them. But we Spaniards have always possessed this sacred
liberty, in common with all other men, for there is no human power, not
even that of the inquisition, whose action reaches to the inner depths
of human consciousness; and could anything be more absurd than to
suppose that the government of His Majesty and the majorities of the two
co-legislative bodies—partisans of religious tolerance—should have so
deeply and for so long a time perturbed the country, giving daily battle
to a more or less numerous minority which tenaciously defended the
restoration of Catholic unity, interrupted since 1868, only to obtain at
last, as the result of their victory, the legal prohibition of the
emission of opinions contrary to Catholicism, and, therefore, the right
of the public power to persecute and punish him who emits them? No; the
eleventh article guarantees the liberty of the emission of religious
thought. The care with which the law-maker used the word “opinions,”
instead of “beliefs,” is to be noted. “Belief,” according to the
dictionary, is the faith, the assent, and credit which are given to
anything, all which is believed or ought to be believed concerning
religious faith and the profession thereof; while “opinion” is the
conclusion, the views, the judgment formed about anything. That is to
say, that belief is, above all, a psychological
phenomenon, an internal act, while opinion more
especially designates something manifest or external;
[Page 480]
for which reason we say “to hold
opinions,” “to be wedded to one’s opinions or views,” “to ask and give
an opinion,” “to form an opinion,” &c. In fine, opinion is belief
manifested and, so to speak, externalized. When
the eleventh article says that no one shall be molested in Spanish
territory for his religious opinions, what it does is to sanction the
right of freely emitting ideas of this kind, subject, however, to the
press-laws.
But it will be said that there is a redundancy and misuse of language in
the article, seeing that the law-maker employs jointly and
indiscriminately the words “ceremonies” and “public manifestations,”
which have distinct meanings according to the Dictionary of the Academy.
Even though there were redundancy, such a defect should be overlooked
rather than accept the contradiction and the absurdity, but fortunately
there is an easy answer to that argument.
The words “ceremonies” and “public manifestations” are certainly not
synonymous, but they both refer to the form of worship, and not in any
way to religious opinions.
They were both employed, not only on account of the necessity of seeking
a formula of compromise between distinct political schools, but also—and
this is the main point in a juridical opinion—because the too concrete
sense of the word “ceremony” did not satisfy, by reason of its very
precision, the need felt by all that the belief of almost the totality
of Spaniards should be respected. We can, in effect, readily understand
that confessions and churches different from the Catholic may offer
worship to divine things by external acts which are not “regulated by
law, statute, or custom;” and to prevent or provide against the
intentional or unintentional performance of such acts, the legislator
did not content himself with prohibiting “ceremonies,” but he added “or
public manifestations,” which it was as easy, nay, easier, to foresee
would wound the sensibilities of Catholics, and which, not being
sanctioned by law, statute, or custom, might appear to be imprudent
provocations or be attributed to hostile intentions and doubtful
motives.
But if the Cortes carried their foresight to such a point in their zeal
and solicitude for the Catholics and in their desire to provide against
and avoid public disturbances arising from religious causes, it is no
less clear to my eyes that it was their design to secure liberty of
thought, and that the text only refers to the manifestation of the form
of worship, (el culto,) to the public
manifestations of religion as a church, and in no
way to individual religious opinions, which fall entirely under the
jurisdiction of Article XIII and of the press laws.
This explains a phrase repeatedly used in the periodical press, and even
in the Cortes, as the synthetic expression of the intention of the
constitution. It has been said that the constitution guaranteed the
inviolability of the place of worship, (templo,)
of the cemetery, and of the book; and it is true. “No one shall be
molested in Spanish territory for his religious opinions.” Herein lies
the inviolability of the book, in the same way as it is guaranteed for
ideas in Article XIII of the same constitution, and as it presumably
will be developed in the press-laws. “Nor for the exercise of his
respective form of worship.” Here we have the inviolability of the
temple and of the cemetery. This inviolability is not infringed by the
prohibition in the third paragraph of ceremonies and manifestations of
dissenting forms of worship in the public way, because the interior of
the church and cemetery remains always inaccessible to the action of the
public authorities, and, therefore, inviolable.
II. The right meaning of Article XI being thus fixed, it seems to me easy
to give an answer to the concrete questions contained in the inquiry
propounded. “Is it lawful to place upon the facade of the place of
worship a sign-board announcing its object, as for example, ‘Church of
Jesus?’” Common sense inclines to the affirmative; but the constitution
maintains profound silence on this particular and definite fact, which
is not to be wondered at, since a constitution never can nor should be
casuistical. It is not to be forgotten, first, that a fundamental law is
confined to the enunciation of principles, the essential basis of the
organization of the state, leaving their development to secondary laws
and to the regulations of the government; and, secondly, that a
constitution is almost always the result of great mutual concessions on
the part of the conflicting political schools.
For both these reasons constitutional precepts cannot but possess a
certain elasticity which may permit the different political parties to
govern within its limits. There is room therein to follow out a bad
policy, without failing in obedience thereto, or, at least, without
violating its letter; one government may be prudent and another may not
be so; this one may be broad and liberal and that one narrow and
restrictive. What is clearly deducible from the text of the constitution
aud from the discussions in the two chambers is that it was sought to
assure the inviolability of the place of worship and the cemetery; but
beyond this limit, which no one may pass without becoming guilty of a
violation of the constitution, the latitude of the text allows to the
successive ministries great freedom of action, without other
counterpoise than the supervision and the censorship of the King and of
the Cortes.
The foregoing does not in any way imply that any one particular
interpretation is not more conformable than another to the spirit of the
fundamental law. Thus, for
[Page 481]
example, in the concrete case presented to me it appears to me that,
since the constitution permits dissenting forms of worship and
authorizes the erection of temples, the natural sequence is that it
would admit of placing on the facade thereof an inscription announcing
its object. This, in my judgment, possesses various advantages; among
others, that of pointing out to the faithful of each confession the
church in which they are to pray, and that of preventing a Catholic from
mistakenly entering a Protestant place of worship, or a Protestant from
entering a Catholic one. Nay, more, there cannot well exist a collective worship, a place of worship, and, in
fine, a communion of the faithful, without a
system of advertisement, without a certain mode of publicity, without
some kind of proceeding which shall permit the faithful to hold
communication among themselves and with their ministers, unless it be
proposed to reduce them, even in populous cities daily visited by
strangers, and for the most insignificant acts of their worship, to the
somewhat primitive method of leaving special notice at their dwellings,
(avisos á domicilio.) And, at any rate, what
can there be to scandalize or mortify the Catholic mind in having an
inscription saying the self-same thing which is already proclaimed, with
more or less of vagueness, by the external form of the place of worship,
and which is explicitly declared by the constitution of the state, well
known to all Spaniards? In my eyes this is too exaggerated a scruple, to
which might be applied those familiar lines:
“Needs must throw away the face,
For the mirror is not to blame.”
I must, nevertheless, declare that in this respect the actual government
has been honest and consistent, because, during the discussion of the
constitutional project, and moved by reasons doubtless worthy of all
respect, it even then announced its intention to permit the outward form of the temple and to forbid inscriptions, for which reason no one can justly
say that he has been deceived.
To sum up, I take it that it is more conformable with the spirit of the
text of the constitution to permit than to prohibit an inscription
announcing the purpose of the place of worship; but the constitution
being silent, and there being no secondary laws or regulations
prescribing anything whatever in this respect with regard to the orders
complained of by the person who consults me, every one is free to judge
as he sees fit of the prudence and of the more or less liberal criterion
of the government, but no one can reasonably accuse it of having
infringed the fundamental law of the state.
III. I combine the two first interrogatories, because they are both
answered by the same principles and with identical judgment. Meanwhile,
let it be here understood that I repeat what I have said in response to
the foregoing interrogatory. The constitution has not entered so far
into detail as to declare whether it is or is not lawful to announce, by
word of mouth, by posters, or by means of itinerant dealers, or lastly,
by means of a sign-board over the door of a warehouse, depot, stall, or
book-shop, the sale of the Holy Scriptures. These details are only
proper to the ordinary law, or to regulations, according to their
respective importance; and I am even prepared to add that, if the whole
matter be not left to the prudence of governments, these should at least
be allowed a certain latitude for appreciating the circumstances of each
case, and for the time being.
I confine myself, therefore, to stating, first, that the secondary laws
destined to develop the principles laid down in the constitution do not
yet exist; and secondly, that the license and the payment of the
industrial contribution might authorize an administrative claim for
re-imbursement or indemnification of damages, but cannot restrain the
powers pertaining to the government in this matter.
And I would here bring this opinion to a close, were it not for the
necessity which I feel of dispelling a very widespread error, under
which I think the person who consults me is laboring too. In my
judgment, at least, the question to which the two first interrogatories
refer, is not decided by the eleventh article of the constitution, but
falls entirely within the jurisdiction of the press-laws.
An inscription on the outer wall of a place of worship may doubtless pass
for a manifestation of the worship or of the religion, considered not as
an idea but as a church; and in this supposition it may be permitted or
prohibited, according as a broad or restrictive interpretation be given
to the eleventh article, so often mentioned herein. But the sale of
books, even though they be Bibles, is not an act of worship, but is
doctrinal propaganda, and has already been shown. The third paragraph of
the eleventh article of the constitution is not applicable to the
diffusion of ideas, but only to the manifestation of the worship or of
religion as a church.
It is clear that the Cortes and the government, in preparing the law for
the press, can do no less than propound to themselves this problem,
namely: How far the declaration made in the eleventh article, that the
state in Spain possesses an official religion, pledges them to adopt
certain precautionary measures, which shall not, however, interfere with
the liberty of religious thought.
It is, likewise, not to be doubted that, in the measures to be taken for
the protection of the Catholic religion, there must be room for the two
extremes; that is, for different degrees of such protection, although
without overstepping the maximum limit laid
[Page 482]
down by the fundamental law in the following
words, which, in accordance with current usage, we might style as
“sacramental:” “No one shall be molested in Spanish territory for his
religious opinions.”
The conclusion, therefore, is that, although the eleventh article must
necessarily influence the phraseology of the law for the press, and the
regulations therefor exerting in this way an indirect and remote action
on the solution of these two interrogatories propounded to me, they
cannot, in a direct or immediate way, be resolved
except by legislation for the press; that is to
say, by the first paragraph of the thirteenth article of the
constitution of the state and by the law to be promulgated for its
application and development. I have given my opinion as a jurisconsult,
and not in any other sense whatever. I have never presumed to be
infallible about anything; and in this question I fear that my
participation in the preparation of the constitution may fascinate me
and lead me into error, instead of being a guarantee of soundness of
opinion but I could not refuse the assistance of my profession to him
who consults me, and I fulfill my duty in frankly saying to him my
understanding of the matter, even at the risk of being mistaken.
Madrid, October 4,
1876.
L. MANUEL ALONSO MARTINEZ.
