At the bottom of the case, there was thus an actual conflict between the law of the church and the law of the statute.

These remarks upon the possible relation of the case in question to the Canon law are submitted to the reader for what they are worth. Even if they be wholly rejected, the case is one of the very highest interest. It is unnecessery to assume that it had anything to do with the Canon law, to increase its claims to attentive consideration. Its importance is of the first magnitude, Canon law, or no Canon law. In the first place, it is the earliest case in which a Common law court used the word "void" in holding an unrepealed statute to be void for a cause ascertained and decided by itself. In the second place, the Law-French of the case, as transformed into English by Coke in the beginning of 118a of 8 Reports, has secured a permanent place in the English law on the head of statutes being "void" because "impossible to be performed," regardless of any differences of doctrine among those using that phraseology.* In the third place, Coke's language and doctrine, while connected with the previous case of the convent seals, became connected with the subsequent case of Trevett v. Weeden, which is the first reported suit in America in which a statute was judicially rejected as void because unconstitutional. See chapter 25, post, and also end of chapter 16, post.

DIVISION G.

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

By the Reformation, a fundamental change was made in the English constitution. The partition of power between the English state and the Roman church was abolished. ecclesiastical matters, the prerogative of the king, and the authority of parliament were no longer restricted by anything said or done by a power seated outside of England. By the statute of 26 Henry VIII., c. 1. the pope was de*See Chapter 16, No. 10.

posed from the supreme headship of the church of England and the king substituted in his stead.*

By a nonobstante clause in the statute, derogation was made to the Canon law in England under the terms "foreign laws." These changes were followed by the well-known controversies concerning the limits of the perogative in ecclesiastical matters, by the abolition of the crown and of the king's supreme headship of the church, and by the restoration of both after an interregnum. Then came the revolution of 1688 giving parliament a plenitude of power in both ecclesiastical and temporal matters, which was so absolute that no king could dispute it in the name of prerogative.

How real this plenitude of power is, may be seen from the words of Blackstone (Com., I. 160), which have been previously quoted. According to them, parliament has a power which is absolute and without control, and has a sovereign and absolute authority in making, repealing and expounding laws, "concerning matters of all possible de"nomination ecclesiastical or temporal."

It will be observed that, according to the foregoing passage, there is no restriction upon the vigour and scope of an act of parliament in ecclesiastical matters. This is very different from the legal state of things before the Reformation, under the partition of powers between the Roman church and English state. Then, as shown by Lord Chief Justice Frowick's words in the case in the Year Book of 21 Henry VII., the power of parliament was restricted in ecclesiastical matters. Parliament could not legally enact the ecclesiastical measure mentioned by him, if the pope did not consent thereto.

*Statutes of the Realm, III. 492.

CHAPTER XIV.

Conclusions as to conflicts between the laws of the church and the laws of the state from the point of view of the division into spiritual and temporal powers and the jurisprudence of the Canon law. Comparison of the Canon law with the constitutional law of the United States and the several states on the head of conflicts of laws.

This chapter will contain statements of certain propositions concerning the Canon law, which, it is contended, are sustained by the foregoing investigation in chapters 12 and 13. They will be stated in connection with certain other propositions concerning the constitutional law of the United States and the several states. Both series of propositions bear upon the subject of this Essay. They will be stated in connection with each other under six several heads, as follows:

1. It is the ancient doctrine of the Canon law that temporal, lay, or civil statutes are null for certain Canonical cause. It is the received doctrine of lawyers throughout the United States that an act of Congress or a state statute may be void or null for constitutional causes.

2. Such canonical cause aforesaid is defect of lay power to enact temporal statutes contrary to ecclesiastical right or liberty. Here and now, it is the received doctrine of lawyers that, under a written constitution, there can exist no legislative power of making laws which are contrary to such constitution and in conflict therewith.

3. A Canon law court will, upon fitting judicial opportunity, proceed as competent to inquire and decide concerning

such Canonical cause and such defect of power and (they being found) to hold the questioned temporal statute to be null, ipso facto et ipso jure. This is shown by the Rotal case of the Roman lands and Genoese testament, decided in 1648, in which the Roman Rota expressly held that every temporal statute ascertained and decided to be contrary to ecclesiastical liberty is ipso facto et jure nullum ex defectu potestatis laicorum statuentium.

It was therefore neither a novelty nor an inelegancy in point of jurisprudence for the framers of an American constitution so to frame it that there should exist thereunder a judicial competency of deciding questioned legislation to be constitutional or unconstitutional and of holding it void or valid accordingly.

4. The Canon law contains a division of spiritual and temporal powers between a church, or religious organization, and a state, or political organization. The constitution of the United States contains a division of delegated and reserved powers between the United States and the several states, and a further division of such delegated powers between Congress and other vestees. Each of the constitutions of the several states contains a division of powers between the legislative, executive and judicial departments of the government of the state. The constitution of each state proceeds upon the basis that there is a division of federal and municipal powers between the Union and the state.

The Canon law shows that according to the principles of law and the doctrines of jurisprudence, defect of power in a system of division of powers, is legal and rightful cause for a temporal statute being null, and that the question of the existence of such cause may be a judicial one.

There is therefore precedent for saying that it accords with the principles of law and the doctrines of jurisprudence for a written constitution to be so framed that defect of legislative power, resulting from its system of divisions of powers, shall be a legal and constitutional cause for a statute being void, and that the question of the existence of such cause may be a judicial one.

5. Thus the idea of a judicial competency of deciding

a questioned statute to be contrary to binding right and holding it therefore null and void can be traced as far back as the Canon law. Furthermore, the use of the word "null" and the word "void" to express the absence of legislative vigour in an unrepealed statute, is not a new Americanism in speech. The Rotal judgment above mentioned holds part of a temporal statute to be "null" for the Canonical cause specified and shows what the Canon law had been for a long period of time.

The case of the Prior of Castlaker v. the Dean of St. Stephens in the reign of Henry VII. is a Common law case having relation to the Canon law, and the report of the argument at the bar shows that the word "void" was actually used as legally applicable to temporal statutes legislating on matters merely affecting the spiritualty. The case of Rous v. an Abbot in the reign of Henry VI. may or may not be connected with the Canon law, but certainly was one affecting ecclesiastical persons and property. In it the court applied the word "void" to a whole chapter of an unrepealed statute.

6. In any of the medieval states throughout which the division into spiritual and temporal powers was fundamental law under the sanction of spiritual coercion, the nullity of a temporal statute must have been merely an effect. The cause of that effect was the contrariety of the statute to ecclesiastical right or liberty. Controversies between the spiritual and temporal powers, must, therefore, have generally turned on questions concerning what was or was not contrary to ecclesiastical right or liberty, rather than on any question of the validity or invalidity of a temporal statute conceded to be so contrary. Similarly, here and now, there are numerous differences of opinion as to what is or is not constitutional. It is exceptional to hear the doctrine maintained that a law should be deemed obligatory, although pronounced by a competent court to be unconstitutional.