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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 description 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 † and St. Francis of Assisium ‡, whose spiritual children

* Caus. xviii. c. 2.

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

cap. 4.

Baronius, ad an. 676.



afterwards luxuriated in exemptions, deplored the introduction, and lamented, not to say condemned, the too frequent multiplications of them. Some attempts were made, at each council 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 V. 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 community 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 sacrament of the church, the public functions of the ministry, and the observance of fasts, feasts and public cere

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*Hist. Con. Trid. 1, xii. c. 13, s. 8.

monies. If a regular offended against the faith or discipline of the church, the bishop, if 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.

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LV. 4.

Contest on Exemptions between doctor 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 VIII,

* Sess. 6, c. .3.-Sess. 7, c. 1.-Sess. 23, c. 8, 10, 15.Sess. 25, c. 4, 14.-Some of these points will require and receive notice in a future part of this work.

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

qualified by Benedict X, restored to its ancient extent by Clement V, and confirmed by the council of Vienne and the fifth council of Lateran but the council of Trent* directed that "the religious "should not hear the confessions of the laity with"out the approbation of the bishop; or, if he required it, without a previous examination by "him."



This council not having been received in France, as to discipline, some regulars contended, that no such previous approbation was necessary in that kingdom; but this assertion was unanimously condemned in 1656, by the French bishops; and the see of Rome afterwards repeatedly † ratified their The differences on this and other points in contest between the prelacy and the regulars had, before this time, risen to such an height, that, in 1633, cardinal de Richelieu assembled at Paris, the superiors of most of the religious houses in that city, and caused them to sign, under his eye, a declaration, by which they acknowledged, in the "names of themselves and of all the religious of "their respective orders, whose assent they under"took to procure, that they could not and ought "not to preach without the approbation of the or"dinaries; and that these had a right to revoke their "permission, whenever they should deem it proper

Sess. 23, ch. 13. Pius V. announced it by the bull Romani pontificis.

+ By St. Pius V, in his constitution, "Romani pontificis," 1; —Urban VIII, in his constitution, "Cum sicut accepimus," 192; -Clement X. in his constitution, "Superna."


"on account of the notorious incapacity of the party, or to prevent public scandal:-but they supplicated, at the same time, that, when such a measure should be thought necessary for securing "the useful and worthy administration of the sa"craments, the prelates would not resort to it "before they had informed the superior of the causes of the revocation, that he might take the proper measures; yet that, on his neglect, the "bishop himself might proceed, in the manner suggested. This recognition was signed by the superiors of the dominicans, augustinians, friars and jesuits: but it left untouched the question respecting confession.


Doctor Smith arrived in London in May 1625 and was received with respect, both by the clergy and laity. Some time after his arrival, doubts were started whether the decree of the council of Trent and the bull of Pius had not rendered it necessary, that the regular as well as the secular clergy of England should obtain the approbation of the prelate to qualify themselves canonically for hearing confessions; and whether the want of these had not invalidated the confessions, which they had heard. Doctor Smith convened a meeting of the superiors of the benedictine monks and jesuits, and intimated to them his opinion, that no person should hear a confession, without the previous approbation of the ordinary: still, with a view to prevent disputes, he offered, as a provisional measure, that should not prejudice the merits of the question, to grant a general leave of hearing confessions to all the regu


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