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LV. 1. Nature and Extent of the Powers of Bishops in partibus

with ordinary jurisdiction. WHEREVER the duties of the divine mission of the apostles carried them, they appointed bishops over the flocks, whom they brought into the christian fold. Thus, in an early age of christianity, it became an universal rule that each distinct diocese, of which the church was formed, should have its particular bishop; and that no bishop should exercise acts of episcopal jurisdiction in the diocese of another, without his consent * Conformably to this general rule, the council of Trent decreed t, that no bishop should, under any pretence, exercise episcopal jurisdiction, in another diocese, without the permission of its ordinary.

The word “ ordinary” is used in the canon law to denote, indiscriminately, either the bishop himself, or the person who exercises, for the time being, episcopal jurisdiction in his stead. When bishops in partibus were appointed in the manner which has been mentioned, they were said to have that jurisdiction over the persons entrusted to their care, which a bishop would have had over them, if they had been the flock of that diocese.

This material distinction subsists between a bishop so appointed, and a bishop in ordinary, that, in respect to the district, over which ordinary jurisdiction is conferred on him, the latter is considered to hold his office by original right, and to

See the ancient canons collected by Gratian, d. g.1. can. 7. † Sess 6. cap. 5. de ufor.

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exercise its functions of his own authority; the former is considered to hold his office by delegation, and to be removable at the pleasure of the pope, his instituant. This was particularly expressed in the briefs * by which Dr. Bishop, and, after him, Dr. Smith were appointed bishops of Chalcedon, with ordinary jurisdiction over England and Scotland. The popes granted them," at the goodwill

of themselves and the holy see, license and facul“ ties to use and enjoy all the faculties given by “ their predecessors, Clement the eighth and Paul “ the fifth, to the archpriests, and all, which ordi“ naries use and enjoy in their own cities and “ dioceses.” They were empowered to hear and determine causes in the first stage; but the hearing of them in the second, that is, by way of appeal, was reserved to the nuncio at the French court.

They were authorized to appoint archdeacons : it was directed that the powers should cease on the restoration of the catholic religion t.

Dr. Bishop erected a chapter, consisting of a dean and twenty other members, to be considered as his standing council; he also appointed five vicars-general, and twenty-six archdeacons and rural deans. In the instrument, by which he constituted the dean and chapter, he confers on them all the authority, which deans and chapters have by common right; but with an express reservation of due reve

* Dodd, vol. ii. p. 7. The brief addressed to Dr. Bishop is dated 23 March 1623.—That to Dr. Smith, dated 4 February 1625.

+ Dodd, vol. ii. p. 466 ; vol. iii. p. 7, 8.

rence to the apostolic see; and an intimation that he had made an application to the pope, to supply, by the plenitude of his power, whatever might be defective in the institution. He appears to have consulted and advised, on this occasion, with Herman Ottemberg, formerly auditor of the congregation of the Rota, at Rome, and afterwards bishop of Arras.

On the death of Dr. Bishop, the dean and chapter constituted by him, exercised during the vacancy of the see, if this expression may be used, the jurisdiction which had been conferred on them by Dr. Bishop*.

Dr. Smith, soon after his appointment, confirmed, and, in some manner, newly modelled the chapter, by letters patent dated the 16th March 1627. He afterwards recalled them, and renewed the ancient chapter, by an instrument, dated the 13th January 1625, but limited the number of its members to thirty t.

LV. 2.

The right of Dr. Bishop and Dr. Smith to appoint a

Chapter. In the early ages of christianity, the bishop generally conferred on every matter of importance, with the neighbouring clergy I: St. Augustine and Eusebius of Vercelli, lived in common with

• Dodd, vol. ii. p. 470.

+ Ibid, vol. iii. p. 7, 8. Thomassin, Traité de la Discipline Ecclesiastique, lib. ïïi. cap. 7, 8.


their clergy, as monastics. In the eighth century, St. Chrodegandus, the bishop of Metz, formed the clergy of his own church into a community, and established certain rules for their conduct. At a council held at Aix-la-Chapelle, in 815, an outline of them* was prescribed for general use. The rules thus formed were called the canon of St. Chrodegandus; and the cathedral clergy, from their observances of these rules, were called canons f. The same rules were observed by some other churches; they received, from this circumstance, the appellation of collegiate churches. This excellent institution began to fall into decline towards the middle of the tenth century; those who continued to observe it were called regular canons. By degrees, they separated themselves from the service of the cathedral, and were formed into an order, holding a kind of middle state between the secular clergy and the monastics. Those who did not adopt the rule, remained attached to the cathedral service, and were called secular canons. They appropriated to their own use, a portion of the property attached to the cathedral, subdivided it among themselves, living separately, as persons absolutely secular. To assist them in the performance of their cathedral duty, and, too often, to excuse themselves from its obligations, they employed stipendiary ecclesiastics, who acquired the appellation of minor


The greater canons constituted the chapter, a

Fleury, Hist. Ecc. tom. X. p. 304.
+ Du Fresne, Glossarium, under this word.

political body aggregate, with a dean, with a common seal, generally with some property, and an officer called a syndic to transact their temporal concerns. By common right, they are subject to the jurisdiction of the bishop; but have frequently been exempted from it, by papal indults. The cardinal of Lorraine said, at the council of Trent*, that “ he did not know of a plague more noxious “ in the church, than these exemptions."

The rights and duties of the chapter vary according to the situation of the see :-when the see is full, the bishop, in some instances, advises, or is supposed to advise, with the chapter; in others, he cannot act without their consent ;-when the see is vacant, the chapter generally administers the spiritual functions of the bishop, in all matters, to which episcopal order is not necessary; they have the care of the possessions of the see; and, where common right has been retained, nominate the successor. During three months after the vacancy of the see takes place, they generally abstain, as much as the case admits, from the exercise of their powers; if the vacancy continues beyond three months, the see is said to be under impediment, and the powers of the chapter are then supposed to come into full action.

Such being the nature of a chapter, two questions arise, — whether Dr. Bishop and Dr. Smith had a right to appoint a chapter,—and whether the chapter, so appointed, subsisted beyond the lives of the prelates who appointed them.

* Pallavicini, Hist: Conc.Trid. lib. xxii. cap. iji. n. 6.

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