Occasional Papers | Page 4

mean as much as that the Crown is the ultimate source of jurisdiction of whatever kind.
Here, however, I must commence by stating that, as it appears to me, Lord Coke and others attach to the very word jurisdiction a narrower sense than it bears in popular acceptation, or in the works of canonists--a sense which excludes altogether that of the canonists; and also a sense which appears to be the genuine and legitimate sense of the word in its first intention. Now, when we are endeavouring to appreciate the force and scope of the legal doctrine concerning ecclesiastical and spiritual jurisdiction, it is plain that we must take the term employed in the sense of our own law, and not in the different and derivative sense in which it has been used by canonists and theologians. But canonists themselves bear witness to the distinction which I have now pointed out. The one kind is _Jurisdictio coactiva proprie dicta, principibus data_; the other is _Jurisdictio improprie dicta ac mere spiritualis, Ecclesiae ejusque Episcopis a Christo data_....
Properly speaking, I submit that there is no such thing as jurisdiction in any private association of men, or anywhere else than under the authority of the State. Jus is the scheme of rights subsisting between men in the relations, not of all, but of civil society; and jurisdicto is the authority to determine and enunciate those rights from time to time. Church authority, therefore, so long as it stands alone, is not in strictness of speech, or according to history, jurisdiction, because it is not essentially bound up with civil law.
But when the State and the Church came to be united, by the conversion of nations, and the submission of the private conscience to Christianity--when the Church placed her power of self-regulation under the guardianship of the State, and the State annexed its own potent sanction to rules, which without it would have been matter of mere private contract, then jus or civil right soon found its way into the Church, and the respective interests and obligations of its various orders, and of the individuals composing them, were regulated by provisions forming part of the law of the land. Matter ecclesiastical or spiritual moulded in the forms of civil law, became the proper subject of ecclesiastical or spiritual jurisdiction, properly so called.
Now, inasmuch as laws are abstractions until they are put into execution, through the medium of executive and judicial authority, it is evident that the cogency of the reasons for welding together, so to speak, civil and ecclesiastical authority is much more full with regard to these latter branches of power than with regard to legislation. There had been in the Church, from its first existence as a spiritual society, a right to govern, to decide, to adjudge for spiritual purposes; that was a true, self-governing authority; but it was not properly jurisdiction. It naturally came to be included, or rather enfolded, in the term, when for many centuries the secular arm had been in perpetual co-operation with the tribunals of the Church. The thing to be done, and the means by which it was done, were bound together; the authority and the power being always united in fact, were treated as an unity for the purposes of law. As the potentate possessing not the head but the mouth or issue of a river, has the right to determine what shall pass to or from the sea, so the State, standing between an injunction of the Church and its execution, had a right to refer that execution wholly to its own authority.
There was not contained or implied in such a doctrine any denial of the original and proper authority of the Church for its own self-government, or any assertion that it had passed to and become the property of the Crown. But that authority, though not in its source, yet in its exercise, had immersed itself in the forms of law; had invoked and obtained the aid of certain elements of external power, which belonged exclusively to the State, and for the right and just use of which the State had a separate and independent responsibility, so that it could not, without breach of duty, allow them to be parted from itself. It was, therefore, I submit, an intelligible and, under given circumstances, a warrantable scheme of action, under which the State virtually said: Church decrees, taking the form of law, and obtaining their full and certain effect only in that form, can be executed only as law, and while they are in process of being put into practice can only be regarded as law, and therefore the whole power of their execution, that is to say, all juris diction in matters ecclesiastical and spiritual, must, according to the doctrine of law, proceed from