Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/285

 jtvu^H/C^ '^ 5. STUBBS: THE CANON LAW 271 man's house; attempted to regulate his servants, to secure his attendance at church, to make him pay his debts, to make his observe his oaths, to make him by spiritual censures, which by the alliance with the State had coercive force, by the dread of a writ of capias excommunicatum, to keep all the weightier matters of the law, not only judgment, mercy, and truth, but faith, hope, and charity also. Now the com- mon law of the land was quite competent to deal first with ecclesiastical property, temporalities, advowsons, and the right to tithes ; the canon law dealt with the qualifications of presentees and the exaction of tithes: the common law was competent to deal with matters of debt or theft; the / canon law claimed to deal with matters of credit or dishtflP'^-ji^ -Jesty in legal and moral as in spiritual obligations: the com- mon law dealt with dower, the canon law wi±h matrimony-t- the common law with succession to property, the canon law with legitimacy. So over great regions of property law, and over the whole domain of moral delinquency, the medi- eval world had two sets of courts at which they might sue, and two sets of lawyers to keep alive with fees and retainers. The canonists affirm that a suit may be brought in the eccle- siastical court for every matter which is not cognisable in the courts of secular law, and for a great many matters which are so cognisable. There is surely an ample claim. I do not want to go into detail, but I will just point out one particular; the commissary of the Bishop of London enter- tained suits exactly analogous to those of the trades unions of the present day, turning on the question how far it is a breach of oath for the sworn member of a guild to impart the art and mysteries of his guild to outsiders. Here then you see the elements of a pretty conflict; be- tween the jurists as a matter of scientific or empiric lore, between the practising lawyers a conflict for practice and for profits ; and you can see how degrading the practical part of the profession was to the theological student, or to the parish priest. Over and above this, there was the natural jealousy of the crown and the parliament. If the canon law had restricted itself to really spiritual questions, matters of belief or of morals for which the national code