Fair world! You may write on my heart what you will;
But write it with pencil, not pen:
You are fair, and have skill; but a hand fairer still
Soon whitens the tablet again!
Aubrey de Vere.
WHAT OUR MUNICIPAL LAW OWES TO THE CHURCH.
The wisdom and bravery of our forefathers having at length enabled them to sever the ties which had bound the original thirteen colonies to Great Britain, their experience, knowledge, and foresight were called into requisition to form a government for the new nation, and adopt a code of laws which, avoiding the complex and erroneous features of those of the Old-World countries, the necessary result of centuries of contradictory legislation, would confirm to the people their newly-acquired liberties, and guarantee to every citizen not only justice from the state, but, in their relations with each other, ample protection for life and liberty, property and reputation. As a foundation for this new system of jurisprudence, the statesmen of the Revolution selected the English code almost in its entirety, partly because the late colonists had been familiar with its workings on either side of the ocean, but mainly because they considered it, comparatively, at least, humane and liberal, and the most suitable for a free government. Many statutes and customs peculiar to monarchies were at the time necessarily omitted, and several enactments have since been passed by our national and local legislatures liberalizing ancient laws, as intended to keep pace with the rapid development of our industrial resources, which, from time to time, creates new and complicated relations between individuals. Still, to all intents and purposes, our body of laws is fundamentally identical with that of England in the last century, is founded on the same general principles, and has the same origin and history. Therefore, in speaking of the jurisprudence of our republic, we also speak of that of Great Britain, for whatever applies to one as a whole equally applies to the other.
Our municipal law, consisting of the common law (lex non scripta) and the statute law (lex scripta), springs from three distinct sources, each of which in its degree has materially contributed its share to the general stock which goes to make up our legal system, which, for completeness and enlightenment of spirit, may well challenge the admiration of mankind. These three sources are—the ancient common law of England, the civil law of the Roman Empire, and the canon law of the church. Though originating at distinct periods and places, and intended primarily to operate on diverse elements, the provisions of these three codes have in process of time become so interwoven, one with the other, in the body of the English law, that it is often difficult and sometimes impossible to discriminate between them.
The common law, in its general acceptation, is composed of the ancient customs of England, beyond which the memory of man runneth not to the contrary, of reports of cases and decisions of judges thereon, and of the writings of persons learned in the law. Sir William Blackstone, the celebrated author of the Commentaries on the Laws of England, is by universal consent the greatest expounder of the common law. With the legal profession, his opinions have a force little less binding than that of a positive enactment, while his definitions, whether borrowed from his predecessors or his own creation, are accepted by the learned of all classes as the most comprehensive and satisfactory in the language on this branch of study. Unhappily for posterity, but more unfortunately for his own reputation, Blackstone lived and wrote in an age when it was the fashion to introduce into every department of English literature the most absurd calumnies against the church, and to advance the most preposterous claims in favor of the so-called Reformation. The wild fanaticism and lust of plunder with which that stupendous rebellion against God's authority was inaugurated had in a great measure subsided in the middle of the last century, and it behooved those of its advocates who attempted to look back into the past to justify present crimes by maligning their Catholic ancestors, or, when that could not be hazarded, by imputing the worst of motives for the best of actions. The great commentator, with all his perspicacity and legal acumen, was nor above resorting to this dishonest method of bolstering a sinking cause, and hence we find in his otherwise invaluable work that he loses no opportunity, in or out of season, to ignore the transcendent merits, misrepresent the conduct, and misconstrue the intentions of the ecclesiastics of the early and middle ages of the church, who, in their time, had done so much to reduce our laws into something like system, and make them conform in justice and equity as much as possible to those revealed by the Creator. Surrounded by the mists of doubt and dissent, the emanation of a hundred jarring creeds, he failed to see beyond the horizon of his own generation, or to perceive the reflux of that wave of heresy which, in the sixteenth century, submerged England, and threatened to inundate the whole of Europe. As an expounder of law, Blackstone still holds a position in the front rank of our jurists, but so warped are his views by the prejudices of the epoch in which he lived that, before the enlightened spirit of our time, he is gradually but surely losing his vantage-ground as an impartial authority, even on questions upon which he is really most reliable. Another defect in the writings of this able professor, but one of much lesser importance, is his constant tendency to exaggerate the merits of the Anglo-Saxon lawgivers, and to attribute to them the credit of originating many laws which were wholly unknown in England till many years after the conquest; but as we have the authority of Hallam for saying that his knowledge of ancient history was rather superficial, we may attribute this fault more to a deficiency of historical knowledge than to a wilful intention to deceive.
The civil law is founded principally on the ancient regal constitutions of Rome, on the laws of the twelve tables, the statutes of the senate and republic, the edicts of the prætors, the opinions of learned lawyers, and on imperial decrees. So numerous, however, had these various enactments become, and so contradictory in terms and penalties, that the study of them was the labor of a lifetime, altogether beyond the ability of the great mass of the governed to overcome. It was therefore found necessary in the reign of Theodosius, about A.D. 438, to codify them, and, by rejecting all superfluous matter, to greatly reduce their bulk. About a century later, under the Emperor Justinian, they were again submitted to a similar process, the Institutes being reduced to four books, and the Pandects, containing over two thousand cases and opinions, to fifty. To these were added a new code, being a continuation of that of Theodosius, the novels or decrees of that emperor and his successors, as well as those of Justinian himself. These taken together formed the corpus juris civilis of the Eastern and Western Empires. It is in the new code and the novels that we first begin to perceive the influence of the church in civil legislation. From the time of the conversion of Constantine, the emperors, with one or two exceptions, were the fast friends, and, in matters spiritual, the obedient children of the pontiffs. The laws of pagan times, particularly those respecting distributive justice and the domestic relations, were utterly unsuited for the government of a Christian people, and, as the church was recognized as the sole arbiter of right and wrong in the abstract, it is natural to expect that the Christian emperors before and after Justinian not only conformed to the dicta of the church in their decrees and decisions, but frequently consulted their spiritual advisers on matters affecting conscience in their twofold capacity of legislators and judges. Justinian in particular appears to have borrowed many of his ideas of temporal law from the church, for we find him paraphrasing or adopting bodily many of the canons of the early councils.[59] Hence we easily perceive that much of the more modern portion of the corpus juris civilis, though bearing the impress of imperial authority, is in reality little more than a copy of the rules laid down previously for the spiritual and social guidance of the children of the church, and that those grand principles and delicate distinctions which are as true to-day as in the time of the apostles, and are as applicable to our advanced state of civilization as they were then, are simply the result of the infusion of the spirit of Christianity into the civil polity of a once pagan people. Thus we find the Institutes or Elements of Justinian commencing with the solemn invocation, "In the name of our Lord Jesus Christ," and ending with the equally edifying aspiration, "Blessed be the majesty of God and our Lord Jesus Christ," and in harmony with this pious disposition we find among other laws relating to the rights of the church the following: "Those things which have been consecrated by the pontiffs in due form are esteemed sacred; such as churches, chapels, and all movable things, if they have been properly dedicated to the service of God, and we have forbidden by our constitution that these things should be either aliened or obligated unless for the redemption of captives."[60] A novel of Valentinian, in A.D. 452, in recognizing the right of bishops to try cases of only temporal concern where the parties were in orders, extends their jurisdiction over laics who have power to "oblige themselves to obey the sentence of the bishop," which sentence, if necessary, was to be enforced by the civil authorities.[61]
The church did not conform, either in her discipline or her doctrine, to the rules or underlying principles of the civil law, but on the contrary subjected that law to the most rigid examination and the most careful analysis, expurgating what was opposed to justice and retaining all that she found in consonance with divine truth; and as the Roman civil law was at that period a rule for all civilized nations, this may be considered her first great human gift to mankind, equal if not superior to her subsequent culture of the arts, sciences, and literature. Admitting, then, the harmony which existed between the Roman laws and the teachings of the church, we are not surprised to find that when, in the eleventh century, a copy of Justinian, discovered at Amalphi, Italy, was published, it was eagerly received by European nations, adopted in whole or in part by all Christendom, and that it to-day forms the main foundation of the jurisprudence of all enlightened peoples.[62]