parties. It was a judicial question whether the supplication was impeachable or not. If the judge decided it to be so, he held the rescript based upon it to be of no strength against the well-acquired rights of third parties.

To appreciate fully this law of legislation, it should be remembered that the majority of legislative rescripts should be compared with private acts of parliament in England and not with public general statutes. The fact that, in continental Europe, rescripts were often called letters patent, should not divert attention from private acts of parliament.

In America, where written constitutions prevail, it may, perhaps, be possible to imitate the Civilians as far as private legislation is concerned. If it be possible to do so, the written constitution of a state might contain dispositions, of which the following is an imperfect sketch. Such a constitution might provide that all private acts of legislation should be procured on petition only; that the petition should tell the truth and the whole truth of the case, or be legally defective; that no legislation should affect the rights of third parties, when procured by a petition legally defective; that the courts of justice should be competent to decide whether a questioned petition be legally sufficient or defective; and that they should hold legislation procured by a defective petition to be void of effect upon the rights of third parties.

CHAPTER XIII.

Of the Canon law in England and the relations between it and the English law before the Reformation, in so far as the present subject is concerned.

DIVISION A.

Of the Canon law in England before the Reformation.

DIVISION B.

of the case of the constitutions of Clarendon.

DIVISION C.

Of the case of the English statutes held void as against the church during the suppression of the Templars in England.

DIVISION D.

Of the English law before the Reformation concerning temporal legislation contrary to ecclesiastical right and liberty.

Of the case of the Prior of Castlaker v. the Dean of St. Stephens in the Year Book of 21 Henry VII.

DIVISION E.

Further reflections suggested by the case of the Prior of Castlaker v. the Dean of St. Stephens.

DIVISION F.

Further consideration of the connection between the Canon law and the English law. Of the case in Fitzherbert's Abridgment, Annuity 41, or Rous v. an Abbot.

DIVISION G

Of the Reformation and the restrictions which it removed from the power of parliament.

Chapter XIII. will be devoted to a special consideration of the Canon law in connection with England and the English law. During the middle ages, the Canon law was one general to the countries of Europe not included within the Greek Empire. Its actual operation, however, varied in the respective countries. Its operation in England was especially affected by local circumstances.

DIVISION A.

Of the Canon law in England before the Reformation.

The principles of the Canon law and those of the Civil law were constant companions. In England, fortunately for all communities now speaking the English tongue, the Common law stoutly excluded the Civil law. Thus in England there was a special dualism between the law of the church, or spiritual law, and the law of the land, or Common law.* The barons' famous "nolumus leges Angliae "mutare" was uttered against a rule, which was sanctioned

* Cf. Year Book, 10 Henry VII., pp. 9, 10, No. 22; p. 17, No. 17 12 Henry VII., p. 18; pp. 22, 23, 24.

by both the Civil law and the Canon law, and urged as such by the bishops. This was the rule of legitimatio per subsequens matrimonium.*

It is consequently necessary to ascertain how the Canonical doctrine concerning temporal laws and statutes was regarded in England before the Reformation, both by the church and by the state.

The standard work of Lindwood, who wrote upon the Canon law in England before the Reformation, affords the means of ascertaining the views of the English Canonists on the subject.

Lindwood expressly asserts that the Canon law doctrine in Decretal. lib. 1. tit. 2. c. 10. was in vigour in England. In commenting upon an act "ordained formerly by the "royal consent and that of the magnates of England, as if "for ecclesiastical right and liberty," he says that "such "an ordinance even though in favour of the church, when "made upon the mere motion of the king and the two tem"poral estates, would not be valid (non valeret), except so "far as it be made at the requisition of the church, or after"wards be approved by the church. Decretal. lib. 1. tit. "2. c. 10." See Lindwood's Provinciale, Ed. 1679, page 263: prout consensu regio, et magnatum regni Angliae tanquam pro jure ecclesiasticaque libertate ab olim extitit ordinatum. And gloss consensu regio on the same: talis ordinatio etiam in favorem ecclesiae mero motu regio et duorum temporalium facta non valeret, nisi quatenus ad requisitionem ecclesiae fieret, vel postea ab ecclesia approbaretur. Extra. de consti. c. Ecclesia Sanctae Mariae; ubi de hoc.

* See Bracton and his Relation to the Roman Law, by C. Gueterbock, translated by B. Coxe, pp. 59, 65, 127 et seq.

DIVISION B.

Of the case of the constitutions of Clarendon.

No. 1. Of the constitutions of Clarendon and the successful ecclesiastical opposition thereto.

No. 2. Practical example of the consequences of the nullity of the constitutions of Clarendon. Of the ecclesiastical immunity called benefit of clergy.

No. 3. Of the resemblance between the ecclesiastical immunity claimed for clerical men in the case of the constitutions of Clarendon and the federal immunity claimed for U. S. officials in the case of the state of Tennessee v. Davis.

That the Canon law doctrine of the nullity of lay statutes contrariant to ecclesiastical right and the liberty of the church had legal vigour in England as well as on the continent, is very fully shown by two cases memorable in English history. The first of these is the case of the constitutions of Clarendon, and the second that of the statutes conflicting with the proceedings for suppressing the Templars and annulled therein.

No. 1.

Of the constitutions of Clarendon and the successful ecclesiastical opposition thereto.

The case of the Constitutions of Clarendon will now be considered. These acts of temporal legislation were formally declared null or void by the Primate Becket, as Archbishop of Canterbury, proceeding jurisdictionaliter according to the Canon law.

The history of Becket's quarrels with King Henry II. is well known. Although he lost his life in consequence, his ecclesiastical action against the legislation of the constitutions of Clarendon was in the end successful.

The constitutions are called by Hale* a "considerable * Hale: History, 5, 136.