The relationship between church and state has always been a complicated one in North Carolina and the United States in general. At times it has been contentious, like when those of minority religions, including Catholicism and Judaism, were barred from holding office. But at other times, this relationship was one more of symbiosis and mutual benefit.
In this holy week for Christians, I thought it may be of interest to take a look at how church law (also known as canon law) contributed to the early development of North Carolina law. Canon law (in its modern form) was first developed during the Middle Ages by Catholic jurists, who united insights from the Bible, Roman law, and ancient philosophy to create an impressive legal code. After the Reformation, canon law was retained by the Protestant Church of England and entered into the common law through England’s church courts. In early North Carolina, judges often looked to this venerable tradition for guidance.
NC’s early legal landscape
In North Carolina, after the revolution, our courts were tasked with developing a new legal system. The North Carolina Constitution made it clear that, unlike in England, there would be no religious establishment. And at our state’s 1788 constitutional ratifying convention, delegates insisted that English law not be borrowed in toto. This created some doubt about whether canon law’s place in English law would be carried over by North Carolina’s courts. Was canon law one of the English systems that the delegates had wanted to abolish?
This question took several decades to resolve. Early on, there were positive signs for canon law, as the other parts of the Ius Commune (the European legal tradition which included canon law, Roman law, natural law, and the law of nations) were swiftly incorporated. In 1823, the North Carolina Supreme Court ruled that “[w]here the positive laws are silent, all courts must determine . . . according to the law of nature” and “the opinions [of the] Roman jurists.” North Carolina did the same for the law of nations as early as 1801. In his concurrence in Williamson v. Smart, the future Chief Justice John Louis Taylor established that “principle[s] of the law of nations,” when they are in accordance with “intrinsic justice,” should be respected in North Carolina courts.
Canon law in legal practice
The first North Carolina case to specifically address canon law was Stedman v. Riddick (1825). The case involved slavery, but it focused on the much broader legal question of when a chose in property arises. A chose is an enforcement right regarding ownership of an item of property. In his majority opinion, Chief Justice Taylor drew a “distinction . . . between choses in action and [choses in] possession.” A chose in action is the right to sue to recover property, but a chose in possession is the right to avoid court altogether and simply seize the property. In order to justify this distinction, Taylor pointed out that his rule “correspond[ed] with a similar one in the . . . canon laws.” The chief justice did not clearly establish that canon law survived the revolution, but he did show that it still commanded respect in Raleigh.
Next, the court took up State v. Samuel (1836). In this case, Chief Justice Ruffin held that, in order to invoke the prohibition on spouses testifying against each other, the alleged marriage must have been celebrated before a public official or minister. This contradicted the canon law rule that only informed verbal consent was required for a union to become legally valid. The court went to great lengths to explain why it had not followed the canon law rule, essentially arguing that the ecclesiastical courts, given their moral authority and power of “pronouncing spiritual denunciations,” were better equipped to prevent dishonesty in marriage claims than North Carolina’s secular courts. Thus, North Carolina required the presence of a public official or minister to verify that a marriage had taken place before giving it legal effect, while the ecclesiastical courts did not. Ruffin emphasized that, in his view, he was not making new law, and referred back to North Carolina statutes as early as 1715 that included this requirement. Importantly, the court did not brush aside canon law but rather assumed that it would presumptively apply and felt the need to explain why it was departing from the code.
Finally, after this string of precedents, the court unequivocally came down in favor of canon law’s relevance. In Smith v. Munroe (1840), the court, while discussing bona notabilia, a legal doctrine in estate law, ruled that it would adopt the doctrine because “the canon law, as administered in peculiar jurisdictions in England, was the law of that country upon this subject; and, like other parts of her unwritten law, was brought here by our ancestors [emphasis added].”
The court had finally answered the canon law question, holding that insofar as the canon law was “administered . . . in England,” it was presumptively carried over after the revolution as part of the common law. Moreover, three years later, the court made this point even more explicit in a case called Crump v. Morgan (1843). To the court’s dismay, an attorney had the audacity to argue that his opponent’s arguments should be rejected because they relied on canon law and Roman law, which were supposedly “not o[f] the common law . . . and therefore not entitled to respect here.” The majority firmly rejected this claim:
“[I]t is an entire mistake to say that the canon and [Roman] civil laws, as administered in the Ecclesiastical Courts of England, are not parts of the common law . . . . They were brought here . . . as parts of the common law, and have been adopted and used here in all cases to which they were applicable, and whenever there has been a tribunal exercising a jurisdiction to call for their use. They govern testamentary causes and matrimonial causes.”
The court did not hold that every rule of canon law applied in North Carolina courts, but only those which had been followed in the mother country. And, certainly, the General Assembly could override even those rules whenever it wished. But within this sphere, the court made clear, the law of the church had its rights.
Conclusion
Canon law played a key role in the development of early North Carolina law. In fields ranging from estate law to marriage law, canon law was a synthesis of the best legal knowledge that the West had to offer, and it provided a rich heritage for our young courts to draw upon. Even in cases where North Carolina departed from canon law, that code still remained in the background, providing a millennia of guidance and wisdom.