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Laws in Respect of Religion.

Section 116 contains a restriction upon the power of the Commonwealth, which is not very aptly placed in the chapter on “The States.” It provides that “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

The last provision no doubt imposes a restraint on power, and the prohibition of laws “for establishing any religion” possibly prevents appropriations in aid of religious bodies. In 1899, an attempt was made, under a similar provision in the United States Constitution, to prevent the execution of an agreement with the Providence Hospital at Washington, a body incorporated by Act of Congress, whereby that body was to receive certain sums of money voted by Congress for providing an isolating building. It was contended that, as the institution was governed and maintained by Roman Catholics, this was aid to a sectarian institution and was a law respecting an establishment of religion. There was no suggestion that the benefits of the hospital were confined to any


  ― 308 ―
sect, and the Court held, that the fact that the hospital was controlled by a sect was immaterial in the case of a body which had been incorporated, so long as the management was in accordance with the constitution of the body. The grant, therefore, was held to be lawful.note In the Mormon case,note where the provisions against prohibition of the free exercise of any religion was relied on, the Court held that “a person's religious belief could not be accepted as a justification for his committing an overt act made criminal by the law of the land.” The words “or for imposing any religious observance” are new. The Convention was informed that, on the strength of a decision of the Supreme Court that the United States were a Christian people, Congress passed a law closing the Chicago Exhibition on Sunday, “simply on the ground that Sunday was a Christian day.” It was represented, that the words in the preamble of the Commonwealth Constitution, “humbly relying on the blessing of Almighty God,” might give some support to similar attempts in Australia, and accordingly words were inserted to meet the danger. The words may have unlooked-for effects. If “Sunday closing” is a “religious observance,” can the Commonwealth close the Custom House on Sunday, or refuse a clearance to vessels on Sundays, Good Friday, and Christmas Day?

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