Now it seems to be admitted that, according to the discipline of the catholic church, a bishop in ordinary of a see, in which there is no chapter, has an inherent authority to establish one; and that the chapter so appointed will be invested, in the instant of its establishment, with all the qualities and powers which belong to chapters of common right. Such being the inherent authority of a bishop in ordinary, and the prelates, whom we have mentioned, having all the authority of such a bishop, it seems to follow, that they had the power of appointing a chapter. It is true that the powers of the prelates were only delegated: but the powers delegated to them were those of a bishop in ordinary; they had therefore a delegated power of appointing a chapter: the difference was, that the ordinary would have appointed the chapter, in virtue of the right inherent to his see; but the two vicars apostolic appointed it in virtue of a power delegated to them, among the general powers with which they were invested.

The question then is, of what see, or of what prelate, they were the chapter? Confessedly not of the see of Chalcedon, or of its bishop, so far as he was the ordinary of that see. They formed, therefore, a chapter exercising capitular jurisdiction, in the territory, over which the prelates were authorized by the holy see to exercise ordinary jurisdiction, and the chapter was invested with the stability and permanency, with which it would have been invested, if it had been founded by an actual bishop in ordinary; still, liable, however, to be

suspended or extinguished by the pope. This, for we are not now discussing extreme cases,—was another material distinction between the chapters appointed by the two bishops, and the chapter of a bishop in ordinary.

Between the formation of the chapter, and the appointment of vicars apostolic, in the reign of James the second, the dean and chapter exercised numerous acts of capitular jurisdiction. In fiftythree instances, they have addressed, by that style, the holy see, or its congregations, its cardinals, and its nuncios; and received communications from them. The popes frequently mentioned and never disapproved of them.-We have cited the congratulatory letter of the consult of cardinals to Dr. Bishop, on his establishment of the chapter. It is observable that, on the arrival of the infanta of Portugal, afterwards the queen of Charles the second, at Portsmouth, the lord Aubigné, a priest, obtained the leave of the dean to marry them, and afterwards performed the ceremony. The notarial act of their marriage, stated, that it was solemnized by virtue of faculties derived from the chapter; it was signed by all the persons present, and five copies of it taken.-His grace the archbishop of Canterbury then declared them to be lawfully married *; but they never were married in a protestant church, or by a protestant clergyman.

See the "Abstract of the Transactions relating to the "English secular Clergy," in which all these circumstances are methodically collected.

LV. 3.

The Claims of the regular Clergy to Exemption from Episcopal Jurisdiction.

ALL religious orders have certain exemptions from the jurisdiction of their respective bishops; and, so far as this exemption reaches, there is no intermediate jurisdiction between them and that of the apostolic see. Such exemptions from episcopal jurisdiction were altogether unknown to antiquity. They were introduced by degrees: several instances of exemption are mentioned in the decree of Gratian*; but some of the authorities, which he adduces in support of them, appear supposititious; others relate merely to the internal discipline of the convents, such as the choice of abbots and the subordinate officers of the community, or similar matters of internal regulation, with which the interference of the bishops was unnecessary. No genuine document, anterior to the eleventh century,

has yet been produced, which proves that any de

scription, either of the regular or secular clergy, was then exempted from episcopal authority.

From this time exemptions rapidly increased: and it is not a little remarkable that St. Bernard t and St. Francis of Assisium, whose spiritual children afterwards luxuriated in exemptions, de

* Caus. xviii. c. 2.

+ De Moribus et Officiis Episcop. c. 9. De Cons. lib. iii.

cap. 4.

Baronius, ad an. 676.

plored the introduction, and lamented, not to say condemned, the too frequent multiplications of them. Some attempts were made, at two councils of Lateran, and afterwards at the council of Vienne, to repress them: a similar attempt was made at the council of Constance; all were unsuccessful; but the last forced from pope Martin the fifth, the promise of a bull for their regulation. A similar attempt was repeated at the council of Trent, and was more favourably received: for though, as we are informed by Pallavicini *, it was contended, that, one of the great advantages, which the commu"nity of the religious orders carries with them, lies "in this, that it upholds the authority of the apos"tolic see, according to the institution of Christ " and the good of the church, as it is evident, "that to preserve itself, every monarchical govern"ment must have, in every province, a very effi"cient body of men, immediately subject to the "prince, who governs it, by himself and without

any intermediate interfering power,"-still the council narrowed the exemptions of the regulars by numerous limitations. It provided, that they should not preach or hear confessions, even in the churches of their order, without the leave of the diocesan, and that they should be subject to him, in all that concerned the administration of the sacraments of the church, the public functions of the ministry, and the observance of fasts, feasts, and public ceremonies. If a regular offended against the faith or discipline of the church, the bishop, if * Hist. Con. Trid. 1. xii. c. 13, s. 8.

the offender resided out of the monastery, might himself punish him; if he were within it, the prelate might order the superior to punish him, within a limited time; and on the neglect of the superior, might deprive him of his office*. It is admitted that exemptions, being privileges, and consequently against common right, are to be construed strictly; -but, though the allowance of them derogates from the law, still, as soon as they are allowed, they become part of the law, and should, as such, be legally recognized. This short view of the nature of the exemptions of regulars from episcopal jurisdiction, appeared necessary for the intelligence of the present and some future pages of this work.

LV. 4.

Contest on Exemptions between Dr. Smith and the regular Clergy.

THE exemption claimed by the regulars, which was most unpleasant to Dr. Smith, was their pretension to the right of hearing confessions, without the permission of the ordinary †. Their title to this important exemption was recognized by Boniface the eighth, qualified by Benedict the tenth, restored to its ancient extent by Clement the fifth, and confirmed by the council of Vienne and the fifth council

* Sess. 6, c. 3.-Sess. 7, c. 1.-Sess. 23, c. 8, 10, 15.Sess. 25, c. 4, 14.

+ See the Mémoires Chronologiques et Historiques du Père d'Avrigni, vol. i. p. 307.