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_
173534
Relations of the Catholic Church to
American Jurisprudence.
RIGHT REV. BISHOP, REV. FATHERS,
LADIES AND GENTLEMEN:
Of all pursuits, few are so fruitful in interest and information as the
study of the law. In its uses it is not confined to the mere professional
man, nor to him alone who is engaged in the administration of justice,
but it extends to all who are actively occupied in the ordinary vo­
cations of life. Its importance results, largely, from the variety of sub­
jects it touches. The law reaches every relation of life. Jt defines
every civil right, and the method of its enjoyment. It affords pro­
tection to every legitimate enterprise. It guarantees security to all
honest efforts in business. It regulates the relations of men to each
other, whether they grow out of their combination in society, their
associations in the domestic circle, or their connections for the accumu­
lation of wealth. It defends the weak against the strong and grasping.
It protects the innocent against the touch of the polluted. It punishes
the offenders against good morals, and affords all the encouragement
within the competency of wise legislation to the honest and the truthful.
The law, too, dealslargely with the duties of men in the natural order.
It determines by appropriate legislation what those duties are, fixes the
rules by which their performance is to be governed, and imposes pen­
alties for their violation.
From these considerations it will appear that some knowledge of the
law is requisite to every man who expects to be interested in the active
life of the community or State in which he resides. Such knowledge
will alone inform him of his rights and the lawful means of protecting
them, his duties' and the proper manner of discharging them, and of
his powers and the just methods of exercising them.
While in all governments it is important that the citizen should ob­
tain such information of the law as I have indicated, to acquire it
2
RELATIONS OF THE CATHOLIC CHURCH
would seem to be especially the duty of a citizen of a republic like this.
Here the people are the sources of all power. The governments are
created solely for their benefit. The officers chosen are merely their
servants. The laws are simply the expression of their will. That
knowledge which might be regarded as merely ornamental in a mon­
archy, becomes a necessity in a republic. How without it can the
citizen wisely discharge the duties which the republic devolves upon him?
How otherwise can he take part in the work of legislation or intel­
ligently decide as to legislative policies? Without such knowledge in
the people what hope can there be of free institutions? Men must
know their rights, or they will be powerless to defend them. They
must understand their institutions, or they will be indifferent as to
their preservation. They must appreciate their liberties and the
laws enacted to protect them, or else in some unguarded hour they
will lose them. My friends, a republic rests upon the devotion of its
citizens to the principles of free government, a devotion which can only
exist where the nature of such government, with the laws necessary
for its administration, is understood by the people. In a know ledge,
therefore, widely diffused, of the system of American jurisprudence, will
be found the best guaranty for the perpetuity of American institutions,
To understand that system it is necessary that we should know the
sources from which it is drawn. N o one can take a philosophical view
of the present, state of our law unless he knows its history, can trace
back to tbeir origin the great principles underlying it, and see the con­
nection between the policies of to-day and the measures it may be of a
thousand years ago, from which these policies have been derived. To
review that history in some of its phases, to point out the sources of some
of the principal jurisdictions of our law, and the origin of its chief
liberties, is my present purpose. To that end I have chosen as the sub­
ject of my remarks" Tbe Relation of the Catholic Church to American
Jurisprudence."
When I use the phrase American jurisprudence, I do not mean our
system of constitutional law, either federal or State, a system which
provides the limitation of all governmental power and defines the
nature and boundaries of the several branches of government; nor yet
do I mean the statutory enactments of the Congress of the United
States, or of the several States. These carry out the powers delegated
to the legislative authority, or relate to the local and temporary neces­
sities effected by these enactments; but I refer to that system of juris-
TO AMERICAN JURISPRUDENCE.
3
prudence which underlies all our constitutions and laws, which is the
foundation of our whole American scheme of government, which while
not interfering with nor disturbing positive enactments, is at once the
origin and supplement of them all. I mean the American common law,
which is the result of the habits and customs of our people for gen­
erations, which has sprung from our ancestors who colonized America
and secured its independence, and which is largely the outgrowth of
the English common law which those ancestors claimed as their heritage
when they migrated from English soil and separated from the English
crown.
The Congress of 1774 unanimously resolved "That the respective
Colonies are entitled to the common law of England, and more espec­
ially to the great and inestimable privilege of being tried by their
peers of the vicinage according to the course of that law." They further
resolved that" they were entitled to the benefit of such of the English
statutes as existed at the time of their colonization, and which they have
by experience respectively found to be applicable to their several and
local conditions." They also resolved that "their ancestors at the
time of their emigration were entitled to. all the rights, liberties and
immunities of free and natural-born subjects of the realm of England."
Mr. Justice Story, in his Commentary on the Constitution, says: "The
universal principle (and the practice has conformed to it) has been
that the common law is our birthright and inheritance, and that our
ancestors brought hither with them upon their emigration all of it
which was applicable to their situation. The whole structure of our
present jurisprudence stands upon the original foundation of the com­
mon law."
In this way did the system of the English common law become the
source and foundation of our law. The inhabitants of the original
thirteen Colonies brought it with them as. their birthright, and made
it part of the government which they adopted for themselves on the
inhospitable shores which they had chosen for their homes. It was
this that kept alive in their bosoms the spirit of independence. It
watched over the first indications of resistance to British aggression.
It nurtured the resolution offreemen. It inspired the immortal words
of the Declaration of Independence. It nerved the arm of the weak
and despised colonists to engage in the War of the Revolution, and in
the hours of despair it breathed encouragement and hope until they
saw the establishment of the greatest Republic of the ages. It dictated
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
TO AMERICAN JURISPRUDENCE.
5
clergymen were most marked. They were most apparent in those
branches with which the clergy were most connected. I ask your atten­
tion to the influence of the Church, first in securing' English liberties,
secondly in developing the system of equity jurisprudence, and thirdly
in establishing international law. These are the most important
features of our jurisprudence. What of more value than our liberties,
our right to an equitable administration of justice, and our relations
with our fellow-beings of other nationalities?
And, first, what was the influence of the Church and the clergy in
the establishment of English liberties? Those liberties were first
clearly expressed and defined in Magna Charta, as it is known in
English history. That instrument was approved by King John, June
5th, 1215. A review of the circumstances by which that approval was
maintained will show the part taken by the English clergy in that im­
portant transaction.
After the conquest of England by William of Normandy, the con­
quered Saxons were treated with the greatest severity. Their property
was confiscated, and divided among the favorites of the conqueror.
The most galling restrictions were imposed upon them. Evidences of
their humiliation were continually kept before them. Their liberties
were entirely taken from them. Incessant efforts were made by the
people for a restoration of the old statutes by which their titles had been
protected and their liberties secured. William the First, William
Rufus, Henry the First, and Stephen, were all earnestly entreated to
grant their renewal. At last, about the year 1100, a charter for their
liberties was issued by Henry the Second, wherein among other things
is was declared that" evil customs should be abolished," and that" the
Church should be free."
When John ascended the throne he promised a restoration of the
liberties and a renewal of the charter of Henry the First. Some dis­
cussion having arisen as to its true meaning, the Archbishop of Canter­
bury and the Bishops gave an interpretation to it in a protest. That
protest commences: "To all the faithful in Christ to whom the present
letters shall come: Stephen, by the grace of God, Archbishop of Canter­
bury, Primate of all England, and Cardinal of the Holy Roman Church,
and Henry, Archbishop of Dublin, William of Leeds, Peter of Wind­
ham, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of
Worcester, and William of Coventry, Bishops, Greeting in the Lord!"
Then follows the statement of the true construction to be given a provis-
6
RELATIONS OF THE CATHOLIC CHURCH
ion in the charter, which was accepted without dispute by both king and
subjects. The particular demands made by the barons, clergy and peo­
ple of the king were for freedom of the Church and liberties of the peo­
ple in relation to titles to property, rights of forest, and trials in courts.
King John, although repeatedly promising to grant these liberties, never
kept his word. At last, after his kingdom had been placed under an
interdict by Pope Innocent the Third, when he found that his barons
would not go to battle with him because he had been excommunicated,
King John took the following oath, which was administered to him by
the Archbishop of Canterbury: "I will diligently defend the ordinances
of Holy Church, and my hand shall be against all her enemies; I will
recall the good laws of my ancestors, and especially those of King Ed­
ward the Confessor, and destroy the evil ones, and I shall see that my sub­
jects shall receive justice according to the rightful decrees of my
courts."
After the interdict had been removed and John had accomplished
his purposes, he forgot his promise and his oath, and refused to yield
the liberties he had sworn to grant. A meeting of the clergy was
called, to assemble at St. Paul's, to which the barons were invited. The
central figure was Cardinal Langton, Archbishop of Canterbury. He
addressed them in the most fervid language. He said: "y e have heard,
when at Winchester, before the king was absolved, I compelled him to
swear that the existing evil statutes should be destroyed, and that more
salutary laws, namely those of King Edward the Confessor, should be
observed by the whole kingdom. In support of these things are ye now
convened, and I here disclose to you a newly discovered charter of King
Henry the First of England, the which if ye are willing to support,
your long lost liberties may be restored in all their original purity of
character." The Cardinal then read the Charter in a loud voice and
appealed to them in the most impassioned eloquence to insist upon
their liberties, assuring them of his own most faithful assistance and
that of all the clergy. With the greatest enthusiasm, the barons
swore in the Cardinal's presence that they would demand their liber­
ties of the king, and would defend them even to death itself. The
Cardinal then assured them that if they would stand by the covenant
then made they would reflect honor on their names through successive
generations.
When the demand was made of the king, in pursuance of the cov­
enant, he hesitated, and equivocated as usual. At length a year hav-
TO AMERICAN JURISPRUDENCE.
7
ing elapsed, with nothing accomplished, the barons determined to
compel-the grant from the king.
An army was formed, which was called "the army of God and
Holy Church," to command which Robert Fitz-Walter was chosen.
It was organized with the approval and blessing of the clergy. In
every way possible the clergy aided it in its formation and progress.
By rapid marches it proceeded to London. The Archbishop of Can­
terbury surrendered to it the fortress of Rochester, one of the strongest
fortifications of the realm. It entered London May 26th. The king
secured himself in the Tower at first, determined to resist the barons
to the uttermost. But at last, abandoned by all, King John sent the
Earl of Pembroke to the army, to declare his readiness to accede to
their demands. An early day was fixed upon for the conclusion and
ratification of the Great Charter.
On a large meadow between Staine and Windsor the meeting was
to occur between the king and the army of his people. On-the 5th of
J une, the interview was held, at Runnymede. On the one side was
the army of" Holy Church" with its leaders, and Cardinal Langton
and the clergy. On the other side was the king, with a few of his
nobles and some of the Bishops as hia spiritual advisers. Few scenes
more attractive have ever been witnessed in English history. A king
was brought face to face with his subjects; the people, clergy and
barons were there to demand in person the liberties which had so long
been denied them. The barons were there in martial array, with
their armor glistening in the summer sun and their gorgeous banners
breathing with the summer air. The clergy were there, attired in the
garbs of their sacred offices. The king sat upon his throne of state,
clad in robes of royalty. The demand was formally made for the
liberties, in the name of God and the Holy Church, not with obse­
quiousness, but boldly, as became freemen. The demand was at once
acceded to. The Great Charter was then presented to the king, the
great seal of England was affixed to it, and the king swore a solemn
oath to support it. Before the setting of that day's sun English liber­
ties were incorporated into an instrument which has become immortal,
and which from that day to this has been the guarantee of the rights
of Englishmen and their descendants the world over. The first sen­
tence of that instrument declares that it was granted by the king" in
the presence of God, for the salvation of his own soul and that of his
ancestors and of his heirs, to the honor of God and the exaltation of
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
10
RELATIONS OF THE CATHOLIC CHURCH
through his decrees that fraud and errors were punished and reformed.
An inquiry into the character and position of the Lord Chancellors
and the methods by which they administered their office will easily
exhibit the influence of the Church in the development of this branch
of our jurisprudence. Who then were the Lord Chancellors of Eng­
land? The Chancellor of the first Christian king was Augmendus,
one of the ecclesiastics who accompanied St. Augustine to England on
his holy mission. It is said that he drew up a code of laws then pub­
lished which materially softened many of the customs which had pre­
vailed while the Scandinavian deities were still worshipped in Eng­
land. The personal vocation of the Chancellor is manifest from the
title to which I have already referred, "Keeper of the King's Con­
science." He must have been of the clergy, and confessor to the king.
Lord Campbell, in his Lives of the Lord Chancellors, says: "From
the conversion of the Anglo-Saxons to Christianity by St. Augustine,
the king always had near his person a priest to whom was entrusted
the care of his chapel and who was bis confessor. Tbis person, se­
lected from the most learned and able of his order, and greatly superior
in accomplishments to the unlettered laymen attending the court, soon
acted as private secretary to the king, and gained his confidence in
affairs of state. Soon to this person was assigned the business of super­
intending writs and grants, with the custody of the great seal."
In this manner it happened that the Lord Chancellor was a clergy­
man; and from the days of Augmendus, in the year 605, to 1532, with
a few unimportant exceptions, every Lord Chancellor was an ecclesias­
tic. For nearly a thousand years was the system of equity jurispru­
dence administered by priests and dignitaries of the Church. Of these
many of the most distinguished filled the office of Chancellor. I need
mention but few names.
St. Swithin, Lord Chancellor under King Egbert and his successors,
was one of the most distinguished among· the early holders of that
office. In the administration of the chancellorship he commanded the
respect and confidence both of king and people. His life was one of
extraordinary devotion to his country and his Church. His death was
universally deplored; and witbin a century afterwards he was canon­
ized at Rome. So great honor has always been paid him in England
that even ever since the time of Henry the Eighth, July 15th is pre­
served in the English Calendar as a saint's day, dedicated to Lord.
Chancellor Swithin.
-------------------------------------------------------------�
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
14
RELATIONS OF THE CATHOLIC CHURCH
been gained in bringing nations together under the Roman laws was
overturned. Society relapsed into barbarism. The only arbitrator
was the sword, as force was the only law. Men lived in constant dis­
trust and hostility. The barbarians divided into clans and went whith­
ersoever their inclination directed, ravaging the territory and enslaving
the people. Rights of person and property did not receive the slight­
est consideration. Prisoners were treated with the greatest barbarity.
Strangers were regarded as enemies. Boundaries between different
provinces or settlements were not fixed, or if fixed were not respected.
Turbulence and violence ruled the nations, in which men were treated
as brutes, and all laws human and divine were disregarded. "In­
stances were frequent of the violation of embassies, of the murder of
hostages, the imprisonment of guests, and the killing of heralds."
When Christianity was introduced a change was quickly effected.
The savage nature of the barbarians was subdued. Private rights be­
gan to be respected. The law was able to assert its authority. The
boundaries between nations were clearly established. The rights of
citizenship soon received a clear definition, and governments learned
the duty of protection to those who were subject to its laws. Christian­
ity taught the great duty of charity, which implied hospitality to the
stranger, forgiveness of injury, and protection to the helpless. It im­
pressed upon its believers the doctrine that all men were brethren, and
that, though of different nationalities and races, they were all included
in the same divine plan of salvation. The Church by the administra­
tion of the Sacraments was continually restraining the passions of the
people and directing their feet in the paths of peace. Where before there
had been bloodshed and rapine and violence, now there were peace and
respect for property and obedience to law. The marauder was changed
into a good citizen. The savage was transformed into a Christian.
As soon as the nations were converted, their common Faith brought
them closely together. The rights of one citizen in the country of
another became the subjects of discussion. The duties of conquer­
ors to their prisoners and the obligation of belligerents began to
be considered by the priests. Disputes often arose between na­
tions, which were referred to councils of the Church for decision, and
ultimately to the Pope as the head of the Church. The instances are
numerous where the authority of the Church was exercised in restrain­
ing the turbulent princes when determined to engage in war. It is
said by a distinguished Protestant writer: "The Church had its coun-
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.