reciprocal duties of sovereigns and subjects, and other matters appertaining to public order: the authority of the church, and the regulations which the apostles, their successors, and the councils have established therein; a great part whereof is preserved by the traditions of ecclesiastical discipline-that is to say the polity of the church. And all these matters have for their laws the ten commandments, the gospel, the doctrine of the apostles, and all the books of the Old and New Testament, the councils, tradition, and the decrees of the popes.

"There is this difference to be observed between matters of faith and morals, and matters of discipline. The latter being subject to change, their rules are also subject to alteration, and may be different according to times and places; whereas the rules of faith and the essential precepts of morals are the same everywhere, and remain always unchangeable, because they are Divine revealed truths. But besides these laws of the church, seeing it has for its government powers whose office is spiritual, and that they are not wont to repress by force and by temporal punishments enforced by external means those who violate its laws, and disturb its order so as to deserve such punishments, Christian princes have reckoned it their duty to protect the laws of the church by their laws, and to inflict temporal punishments on those who transgress the laws of the church, in cases where those punishments ought to be inflicted."a

This comprehensive plan of Ecclesiastical Law presents to us, in the first place, the distinction between mutable and immutable laws, which is to be found in this as in every branch of universal jurisprudence. It also shows us the distinction between purely ecclesiastical rules and municipal laws made by the civil power for the purpose of assisting the laws of the church, by giving remedies against those who violate them. So the same learned writer shows, in another place, that there is a necessary connection between the first of the three orders (that of religion) and the third order of human society (that of municipal and civil polity), because there are matters touching the persons and property of the church, which affect and regard the temporal polity and economy of the state and civil society; and therefore the laws regulating them rank among those of both orders.b Hence we learn the relation between Ecclesiastical Law and Municipal Temporal Law, both public and private.

a

The Ecclesiastical Law has for its direct subject-matter (as Suarez

Domat, Dr. Publ. Preface; and see D'Aguesseau, Œuvres, tom. i., p. 279,

edit. 1787.

b Domat, ibid.

learnedly shows)a only external acts of men.

Hence the common

maxim, Ecclesia non judicat de occultis. And so Lancelottus, and other great canonists, show in their definitions of the Canon Law, that it is a rule of civil conduct-that is to say, a rule to direct and govern the actions or conduct of the citizens of the commonwealth of which it is the law, that is to say the Church.b

Another analogy between Ecclesiastical and Temporal Laws is this, that both may be, directly or indirectly, traced to and hang from the two primary laws which, as Domat demonstrates, are the foundation of all other laws; namely, the duty of man to God and to his neighbour. And, indeed, having regard to the description of the objects to which the laws of the Church are directed, it is clear that they ought to work out the consequences and results of the two primary laws more perfectly than the temporal laws. Thus, for instance, the Canon Law does not allow the privilege of acquiring by prescription to any but a bona fide possessor, establishing the rule, Possessor malæ fidei ullo tempore non præscribit. And Pope Boniface VIII. accordingly lays it down that Peccatum non dimittitur nisi restituatur ablatum. But by the Civil Law bona fides at the commencement of the possession suffices. And the influence of the Canon Law has in many instances improved the modern Civil Law by discountenancing technicalities, and by introducing more Christian and conscientious principles. Thus, the Canon Law, adopted by the modern civilians in this particular, dispenses with the use of the technical names of different actions in pleading. So it condemned and led to the abolition of the barbarous customs of judicial combat and trial by ordeal. Thus, the Canon Law does not hold that the status of slavery constitutes any incapacity for the valid reception of holy orders, though it forbids such promotion without the consent of the master, who was required to give the slave his freedom.f This was a great improvement upon the Civil Law,

* Suarez de Legib. lib. iv., cap. xii., xiii.; Decret. Gratian., Tract. De Pœnit. cc. xiv. xxxi. And see Can. et Decr. Concil. Trident. sess. xxiv., Decretum de Reform. Matrim. c. i.

Lancelot. Instit. Jur. Canon., lib. i., tit. i., § 1. See Reiffenstuel, Jus Canon. Proem., § 3. As to Temporal Law, see Reg v. Higgins, 2 East, 21.

• Reiffenst. ubi supra, num. 42. And see a remarkable instance, lib. iii., tit. xvii., § 11, num. 329.

• Reiffenst. Proem., § 11, num. 1; Bowyer, Comm. on the Mod. Civ. Law, p. 117; Fæbeus De Regul. Jur. Can., tit. iii., reg. 4.

* Can. Apostol., Can. lxxxii., apud Van Espen, Op. Omn., tom. vi., p. 381; Decr. Gratian., Distinctio liv.; Decretal., lib. i., tit. xviii., De Servis non Ordinandis; Hericourt, Loix Eccles. pp. 15-75, 76. See, as to the marriage of slaves, Reiffenstuel, Jus Can. Proem., § 10, num. 14.

which allowed to the slave no legal capacity or existence except by mere Natural Law.a And there is no doubt that the influence of the Canon Law contributed powerfully to place the status of the slave, or serf, on a footing consistent with Christian morals; and led to the extinction of that lamentable institution which even the Romans acknowledged, as we find in the Pandects, to be contrary to nature.b

I do not deny that there are defects in the Canon Law, arising from political causes and the state of knowledge and civilization at particular periods of the history of Europe; but its influence was on the whole very important and beneficial in the development of the science of jurisprudence and the improvement of every branch of law.

Let us see on the purview of this subject the opinion of Wheaton, the American jurist (a Protestant and a republican), in the Introduction to his History of the Law of Nations.

After describing the rise of the school of Bologna, the learned writer continues thus:-"From this period the cultivation of the science of the jus gentium was considered as the peculiar office of the civilians throughout Europe, even in those countries which had only partially adopted the Roman jurisprudence as the basis of their own Municipal Law. The authority of the Roman jurisconsults was constantly invoked in all international questions, and was not unfrequently misapplied, as if their decisions constituted laws of universal obligation. The Roman Law infused its spirit into the Ecclesiastical Code of the Roman Church; and it may be considered as a favourable circumstance for the revival of civilization in Europe, that the interests of the priesthood, in whom all the moral power of the age was concentrated, induced them to cherish a certain respect for the rules of justice. The spiritual monarchy of the Roman Pontiffs was founded upon the want of some moral authority to temper the rude disorders of society during the middle ages. The influence of the Papal authority, though sometimes abused, was then felt as a blessing to mankind. It rescued Europe from total barbarism; it afforded the only asylum and shelter from feudal oppression. The compilation of the Canon Law, under the patronage of Pope Gregory IX., contributed to diffuse a knowledge of the rules of justice among the Catholic clergy; while the art of casuistry, invented by them to aid in performing the duties of auricular confession, opened a wide field for speculation, and brought them to the confines of the true science of ethics. The universities of Spain

a Lib. xxxii., ff. De Reg. Jur.; Savigny, Traité du Dr. Rom., vol. ii., pp. 29, 30, Paris, 1840. But see the celebrated Law, Barbarius Philippus, L. iii., ff. De Officio Prætor., which rests on grounds of Public Law. To it applies the rule in L. xvi., ff. De Legib.

b Lib. iv., § 1, ff. De Statu Hom.

and Italy produced, in the sixteenth century, a succession of labourers in this new field."

The same views are professed by Guizot, in his Course of Modern History; and, in his sixth lesson, he shows that the penitential laws of the Church contain the great principle of combining example with the amendment of the offender, on which the reform of criminal legislation has been based, and capital punishments abolished except in a few cases. And the good effects of the Canon Law are thus described by Robertson, in his History of Charles V. (vol. i. sect. 1, c. vi).

"Whatever knowledge of ancient jurisprudence had been preserved, either by tradition or in such books as had escaped the destructive rage of barbarians, was possessed only by the clergy. Upon the maxims of that excellent system, they founded a code of laws consonant to the great principles of equity. Being directed by fixed and known rules, the forms of their courts were ascertained, and their decisions became uniform and consistent." * * * * "Thus the genius and principles of the Canon Law prepared men for approving those three great alterations in the feudal jurisprudence which I have mentioned. But it was not with respect to these points alone that the Canon Law suggested improvements beneficial to society. Many of the regulations, now deemed the barriers of personal security, or the safeguards of private property, are contrary to the spirit of the civil jurisprudence known in Europe during several centuries, and were borrowed from the rules and practice of the Ecclesiastical Courts." (In the note) "Almost all the forms in lay Courts which contribute to establish, and continue to preserve order in judicial proceedings, are borrowed from the Canon Law."

These reflections and authorities show how the temporal Municipal Law and the Ecclesiastical Law, being intimately connected with each other,—both equally flowing from the two great primary laws laid down in the Gospel,-have conjoined together,a for the maintenance of human society and the governance of mankind. Both are branches of the great science of universal jurisprudence, which comprises all the regulations of human society, and all the laws to which men should conform their actions. In this sense we may accept the definition of Ulpian: Jurisprudentia est divinarum atque humanarum rerum notitia: justi atque injusti scientia.Þ

I have now sufficiently established the general importance and uses

* See preamble of Stat. xxiv., Hen. VIII., c. xii.; so far as regards the concurrence of the two powers to one end, the good government of the community. Caudrey's Case, 5 Rep. 7.

b Lib. x., § 2, ff. De Just. et Jur.

of the Canon Law, and shown its place in the science of universal

jurisprudence.

We have yet to consider it with reference to our own Municipal Law.

The general principle of the relation between the two laws is thus laid down by Lord Hale, in his History of the Common Law, p. 27 :"All the strength that either the papal or imperial laws have obtained in this kingdom is only because they have been received and admitted, either by the consent of Parliament, and so are part of the Statute Law, or else by immemorial custom and usage in some particular cases and Courts, and no otherwise; and therefore, so far as such laws are received and allowed of here, so far they obtain and no farther; and the authority and force they have here is not founded on or derived from themselves, for so they bind no more with us than our laws bind in Rome and Italy. But their authority is founded merely on their being admitted and received by us, which alone gives them their authoritative essence and qualifies their obligation."

The same principles are laid down by Lord Coke, 2 Inst. 599, 600; Lord Kenyon, 8 Durn. & East, 414; Lord Hardwicke, in Middleton v. Croft, 2 Atk. 660, 661; and Lord Chief Justice Tindal, in Reg. v. Millis, 10 Cl. & Fin.

The judges of the Common-law Courts will give faith and credit to the sentence of the Ecclesiastical Courts, or Courts belonging to the Protestant Church established by law, within the limits of their jurisdiction but the Superior Courts at Westminster have the superintendency over them, to keep them within that jurisdiction, to determine wherein they exceed it, and to restrain and prohibit such excess,a

An appeal lies from the Courts of the Established Church to the King in last resort, which, as Blackstone lays it down, proves that the jurisdiction exercised by them is derived solely from the Crown of England, and not from any intrinsic authority of their own; and he concludes that the Canon Law is, with reference to our Municipal Law, lex sub graviori lege, and an inferior and subordinate branch of the customary or unwritten Laws of England, properly called the King's Ecclesiastical Law.b

It is not consistent with the design of these Readings to show what are and what are not matters within the authority of the Canon Law, so far as it is admitted as a branch of our English Law. That is a subject of great extent, and explained with all its details in text-books

Caudrey's Case, 5 Rep. 7; 1 Black. Com., Introd. 83.

b 1 Black. Com., Introd., § 3, p. 63; Caudrey's Case, 5 Rep. ; Stat. xxvi., Hen. VIII., c. 1; Stat. i., Eliz. c. 1; Chitty, Prerog, of the Crown, ch. v; Burn, Eccles. L., tit. Courts; Lord Raym. 25.