AN ORATION ON THE RELATIONS OF
TEE CATHOLIC CHURCH TO
AMERICAN JURISPRUDENCE
By
Frapk ·H. Hura'





----------------------
AN ORATION
ON TIlE
Relations of the Catholic Church to
American Jurisprudence.
,f
DEJ.JIVERED BY THE HON. FRANK H. HURD, LL. D.,
I'
AT THE
Thirty-Third Annual Commencement of the University of Notre
Dame, Indiana.
JUNE 27, �877_
NOTRE DA::tv.IE, INDIANA:
SCHOLASTIC PInNT.
�S77_





4
RELATIONS OF THE CATHOLIC CHURCH
largely the provisions of the Constitution. It suggested the plan for the
dvision of powers and the restraints to be imposed upon them. It has
since afforded the rules for the ·construction of that instrument, and es­
tablished regulations for the administration of justice under it. In the
years which have followed the formation of the Union, it has ever
contributed to the jurisprudence by which that Union has been pre­
served; and much of the prosperity which has attended it, and of the
glory it has achieved, is attributable to the English common law.
I do not use the term common law in the technical sense in which
it is generally employed by the legal profession. I use it to signify the
whole body of the law which has been adopted from ·England into our
system, including that which belongs to chancery and admiralty juris­
diction, as well as that which relates to what are termed more restrict­
edly "the laws of England."
What have been the contributions of the Catholic Church to this
system of law, and what have been the relations of the one to the other.
are the questions I desire to consider.
In this discussion I shall not refer in detail to the distinguished names
of clergymen who during the years preceding the reign of Henry the
Eighth explained and commented upon the English law. Indeed there
were few commentators but them. They found it without form, and
systematized it. They gathered together the scattered cases, and derived
from them the rules and principles which are necessary to an orderly
system of jurisprudence. It is sufficient for me to mention Bracton, Dean
of Barnstable, and Britton, Bishop of Hereford, who have been termed
by one of the greatest oflawyers as the fathers of English law. The work
of Bracton, De Legibus Angliœ, was the first scientific commentary of
the English law, and it has ever been regarded, as remarked by a dis­
tinguished German, "as the best and truest authority of the common
law." In the early days of English history, not only were the clergy
the chief commentators of the common law, but they were as well the
judges who administered it and the lawyers who engaged in its practice.
Before the conquest by the Normans, and long afterwards, few were
learned in the law except the clergy. In the time of Rufus the monks
of Abingdon were so celebrated for their knowledge of the law that
they were universally consulted. So generally were the clergy engaged
in the practice of the legal profession that an early writer remarked:
Nullu« clericus nisi causidieus.
The effects upon the common law of the judges and practitioners being


8
RELATIONS OF THE CATHOLIC CHURCH
the Holy Church and the amendment of his kingdom, and with the
approval of Master Pandulph, our Lord the Pope's subdeacon and
familiar." The first grant is "that the English Church shall be free,
and shall have her whole rights and liberties inviolable; and we will
this to be observed in such a manner that it may appear from thence,
that the freedom of elections which was reported most requisite to the
English Church, which was granted and by our charter confirmed,
and obtained the confirmation of the same from our Lord Pope Inno­
cent the Third, before the rupture between us and our barons, was of
our own free will, which charter we shall observe, and we will it to be
observed with good faith by our heirs forever." The principal section
relating to the liberties of the people was: "N o freeman shall be
seized or imprisoned or dispossessed or outlawed or in any way de­
stroyed; nor will we condemn him, nor will we commit him to prison
excepting by the legal judgment of his peers or by the laws of the land."
Thus by this great instrument were the liberties of the Church and
the people at the same time guaranteed and established. A king de­
termined upon tyranny and the exercise of arbitrary power was com­
pelled by an army organized under the authority of the Holy Church,
the chief adviser and supporter of which was a Cardinal of that Church,
to grant freedom and security to both priests and people.
The importance of that instrument in the history of England cannot
be exaggerated. So dear was it to the people that it was afterwards
confirmed by kings and parliaments no less than thirty-two times.
The elder Pitt said that the language of Magna Charta relating to the
rights of freemen was worth all the classics. It formulated for the
first time in simple language the rights and powers of the people and
of royal prerogative. It interposed an insurmountable barrier to ar­
bitrary power. It declared the supremacy of the law. It closed all
prison doors except to those who were convicted under the laws of the
land. It exhibited and encouraged a spirit of sturdy independence
which has always been one of the peculiar features of the English
character. More than all else it has been the source of English power.
It has made that little stormy island the seat of an empire which has
extended its arms unto the remotest ends of the earth and brought
into its coffers resources from every clime. To the influence of the
Church is England, and are we, chiefly indebted for Magna Charta.
"No freeman shall be seized, or imprisoned, or dispossessed, or en­
slaved, or in any way destroyed, nor will we condemn him, nor will


TO AMERICAN JURISPRUDENCE.
9
we commit him to prison except by the legal judgment of his peers or
by the laws of the land." Immortal words! the very soul of free in­
stitutes! the vital principle of this Republic! the bulwark of our
liberty, the power and glory of our freedom! And when these words
are remembered, and the incalculable importance they have. held in
English history, I would have it understood that they were extorted
from an unwilling king by an "army of Holy Church"; that they are
the words of Stephen Langton, Archbishop of Canterbury, Primate of
all England, and Cardinal of the Holy Roman Church.
In the next place, I ask your attention to the influence of the
Church in the development of equity jurisdiction. At a very early
day in English history it was discovered that there were many defects
in the laws of the realm as administered in the regular courts. Their
decisions were in many instances narrow and unjust. In their appli­
cation of the law to cases not specially provided for, great hardships
were occasioned. Their rigors admitted of no abatement. Their pro­
cesses were powerless to afford relief in many cases where relief was
needed.
Whatever the causes of these deficiences in the laws of the realm, it
was conceded on all sides that they existed. Another tribunal, there­
fore, was required in which these defects could be cured and the justice
which had been denied in the regular courts might be obtained. An­
other tribunal was established, where jurisdiction was to provide" for
the correction of that wherein the law by reason of its universality was
deficient." As said by Mr. Justice Blackstone, that court was estab­
lished "to detect latent frauds and concealments which the process of
courts of law is not adapted to reach; to enforce the execution of such
matters of trust and confidence as are binding in conscience though not
cognizable at common law, to deliver from such dangers as are owing
to misfortune or oversight, and to give a more specific relief, and more
adapted to the circumstances of the case, than can always be obtained
by the rules of the common or positive law."
That tribunal was the Court of Chancery. From the time of the
first Christian king its chief officer was the Lord Chancellor, who al-
ways enjoyed the title of "Keeper of the King's Conscience." It was ..
to him that application was made for the abatement of the rigors of
the common law. It was from him that process issued to grant relief
where before it had been refused. It was his judgment which corrected
or restrained the unjust judgments of the regular courts. It was


-------------------------------------------------------------�
TO AMERICAN JURISPRUDENCE.
11
N eed I mention Thomas á Becket, known throughout the whole
Christian world as St. Thomas of Canterbury? He filled the office of
Chancellor with distinction for more than eight years. His command­
ing presence, his extraordinary genius, his spotless sanctity, his heroic
martyrdom, point him out as the greatest Englishman of his time. His
thorough devotion to the Church leaves no doubt as to the character ·of
his administration of the office. Even the most unfriendly of his
critics concede the purity of his character as Chancellor, and praise
. him for his. im partiali ty in the office.
Shall I name Cardinal 'Voisey, one of the most distinguished char­
acters in English history? As Chancellor, more than any of his pre­
decessors he asserted the powers' of his court. He declared it to be
his duty always to execute judgment with clemency where conscience
was opposed to the rigor of the law. Whatever the differences of opin­
ion of his biographers as to other matters, they all agree that he made
a bold, honest, fearless and able Chancellor.
Who more distinguished in that office than Sir Thomas More, who
though a layman could not have been excelled by any clergyman in
his devotion to the Church? He was the first scholar of his age. He
was the purest judge of his time. He has been called by the most
brilliant writer of this generation the greatest of all Englishmen.
When his whole character is considered, we are at a loss to know which
most to admire, the simplicity and purity of his nature, the extent of
his intellectual acquirements, the brilliancy of his statesmanship, the
impartiality of his administration of public office, or the heroic con­
stancy with which he suffered death rather than abandon his conviction.
One thing is certain, no name in English history is more universally
admired than that of Sir Thomas More.
Thus for a period of a thousand years was the office of Chancellor
administered by St. Swithin, St. Thomas of Canterbury, Cardinal
Wolsey, and Sir Thomas More, and men like them in religious pro­
fession and life.
Who can doubt the rules and methods by which they were governed
and the sources from which these were drawn? Consider first that
they could not have been drawn from the common law, for it was to
mitigate its rigors that the Court of Chancery was established. They
must have been derived from those systems with which the Chancel­
lors were familiar. What those systems were, their course of educa­
tion clearly indicates. Placed in seminaries in England, Ireland and


12
RELATIONS OF THE CATHOLIC CHURCH
the Continent, they were instructed both in the canon and civil law.
With the details of the canon law they must have been especially fa­
miliar. It was a necessary part of their education for holy orders.
They were taught with thoroughness what was requisite for the purifi­
ca tion and the enligh tenmen t of the conscience. They possessed a know l­
edge of the rules for a wise administration of the Sacrament of Pen­
ance. And as the Chancellor in his capacity of Keeper of the King's
Conscience was his confessor, it must have been that he who held the
office was among the best instructed of his order. In this idministra­
tion of the office of Chancellor it was generally said that relief was
granted according to conscience. It was termed a court of conscience.
It was by appealing to the conscience of the Chancellor that suitors
found relief. Was this power exercised, as some ha ve maintained, ar­
bitrarily and according to the whim of each Chancellor? To so main­
tain would be to make a mockery of justice and to substitute for equity
the varying caprices of an individual. N o, my friends, the powers
were exercised regularly, methodically, by the application of the rules
of th"e canon law. Appeals 1.0 conscience were settled as that system
prescribed; the Lord Chancellor only sat to administer the canon-law,
and the civil law so far as it was applicable to cases of conscience, to
cure the defects of the common law.
The system of equity jurisprudence was not perfected in a short time.
Each year new cases would arise in which new decisions would be
made. As the years advanced it grew into form until it reached the
perfection it possessed when our ancestors brought it with them to the
Colonies. The system has received many improvements since the days
of Sir Thomas More, but the great principles on which the jurisdiction
has been administered were settled during the thousand years before
by the disciples of the canon law who held the Chancellor's office.
How beautifully the two systems of law. have blended together! The
law of the realm administered in one court, as the ancient customs of
the people prescribed, to be abated in its rigor in the chancery court
of conscience enlightened by the canon law. The asperities of the
one modified by the tenderness of the other, the injustice of the one
restrained by the charity of the other; . these together constituting a
body of the law, which for protection to liberty, restraint of injustice,
enforcement of obligation and security to property has never been
equalled in the history of the world.
To illustrate the obligations under which we are to the court of


TO AMERICAN JURISPRUDENCE.
13
conscience, consider the powers it exercises and the subject matters of
which it treats.
Lord Coke has said that three things are to be judged in a court of
chancery: fraud, mistake, and breach of confidence. There is no hiding­
place for fraud which equity will not reveal. There are no fortifi­
cations behind which it may entrench itself which equity will not break
down. It will expose every fraudulent transaction, however it may
surround itself by forms of law, and whatever the position of the men
who may be engaged in it. Chancery corrects the errors and mistakes
men make in their dealings with each other. It allows no man to
take advantage of another. It takes from him who has ill-gotten
gains whatever he has unlawfully obtained. It compels the unwilling
man who has made a contract to keep it. It administers trusts for
the benefit of those interested in them. The poor, the weak, the help­
less, the confiding are its wards, whose interests are ever watched after
and whose claims for relief are never denied. Its doors are always
open fill' suitors, and its ears are never closed to the complaints of the
deceived and innocent.
In remedies it uses processes which furnish instantaneous relief. In­
j unctions are issued solely by its authority. It can restrain the cor­
rupt and designing at any step in their criminal progress and preserve
threatened rights from the dangers which may impend. One of its
chief glories is that it modified the harsh rules of the common law as
to married women. Most of the rights which by our later statutes
have been conferred upon married women have been given them in
courts of equity for more than twelve hundred years under the liber­
alizing influences of the canon law. In short, equity exposes fraud
and compels the giving up of its fruits, protects the defenceless,
guards the infant, defends the widow and orphan, and relieves from too
severe restraint the married woman. In all its administration it is'
governed by conscience, enlightened by that charity which is the chief
jewel of the Christian religion.
Allow me to call your attention for a few moments to the influence of
the Church in the establishment of international law. So far as it
may be called a system, its rules and principles are the same as those
which have prevailed throughout Christendom. That the Church was
largely instrumental in adopting them everyone familiar with history
must admit. Prior to the establishment of Christianity in Europe the
Çontinent was overrun by the Northern barbarians. Whatever had


TO AMERICAN JURISPRUDENCE.
15
cils or convocations of the clergy which formed the nations into a con­
nection resembling a federal alliance, and these councils sometimes
settled the titles and claims of princes and regulated the temporal af­
fairs of the Christian power. This alliance was termed Christendom,
and for centuries the Pope of Rome was its undisputed Head. The
judgment of these councils, the decrees of the Holy Fathers, the
treaties made between the Christian nations, form the chief source
from which are drawn the principles of international law. It is not
my present purpose to consider what those principles are. It is suf­
ficient to say that they relate to the rights of States as parts of Chris­
tendom, to methods of peaceably settling disputes between nations, the
rights and duties of belligerents and neutrals in time of war, and to the
methods of commercial intercommunication in times of peace. What
beneficent changes did not the Church thus introduce into the rela­
tions of Christian nations! How were softened the bloody codes of
warfare! How were stayed the stained hands of contest? With what
gentleness were the wounded then cared for on battle-fields! With
what humanity, before unknown, were prisoners treated! How were
heard, even in the din of contending hosts, the sweet whisperings of
Christian charity! As when in the desert the serpent was lifted up to
heal those who might look upon it, so was the Cross of Christianity
raised to hush the note of conflict, to bring peace to warring nations,
and contentment to homes disturbed. Oh, that the nations would re­
turn to the peaceful ways of the ages of faith! Oh, that the hand of
strife might be mailed to be lifted, as then, only in benediction!
The reflections I have submitted to your consideration to-day should
lead to an exalted opinion of our American jurisprudence. It has
consulted all authorities. It is derived from all enlightened systems
of law. From the English law it takes a sturdy love of liberty, the
bold processes by which it is protected, and the great writs of right,
by which, when outraged, it may be vindicated. From the civil law
it draws accuracy in the statement of private right, certitude in the
obligations of personal contracts, and completeness in the definition of
the duties which flow from them. From the canon law it takes the
watchfulness with which the rights of the helpless are guarded, the
vigilance with which fraud ie pursued and punished, and the exactness
with which trusts are required to be administered. From England
comes liberty, from the Rome of the Emperors comes culture, from the
Rome of the Popes comes charity. From America-America with


16 RELATIONS OF THE CATHOLIC CHURCH, ETC.
her free mountains, and rivers, and prairies, and forests-comes the
living, breathing soul of freedom, which vivifies and energizes all the
rest and makes the whole the very perfection of juridical science.