V 5i,/t^lJ^tTi ? -i^-^t n < Hi i *!«&¦?' P^nS ..-f^,-i« P l14 !"%#: 'jfA*#' THE LETTERS APOSTOLIC POPE PIUS IX. CONSIDERED, 'WITH EEFEKENCE TO THE LAW OF ENGLAND THE LAW OF EUEOPE. BY TEAVEES TWISS, D.C.L, OF doctors' commons; PBLLOW OF tnaVERSITT COLLEGE, OXFOKD ; AND COMMISSAKY-GEKERAI, OF THE DIOCESE OF CAHTEKBUKT. ' Quid ad me de Litteris ApoBtolicis ?." ait Hex : " Jura regni mel nolo amittere," 'WiiH, DE Maim. LONDON: LONGMAN, BROWN, GREEN, AND LONGMANS. 1851. PREFACE. The title of the present work may have sufficiently prepared the reader for a discussion of a purely legal and political character. But lest the reader's atten tion .should not have been arrested by the title-page, the Author thinks it right to state, that he has endea voured, as far as the subject would admit, to keep clear of the religious question involved in the prin ciples of the Reformation, as contrasted with those of the Papacy. Conscious that his own convictions on this head are beyond the reach of argument, he has refrained from assailing with argument the convic tions of others. Besides, he feels that the subject is out of his province, and should be left to other pens, raore competent than his own, to fathom its difficulties. Accordingly the reader must be prepared to find many questions examined exclusively from the point of view which they occupy as historical facts, and not in subordination to any general theory. The Author's object has been rather to supply premises from which others may reason, than to impose his own conclusions upon the judgment of the reader. It is a singular coincidence, that almost immc" diately upon the bearer of the Papal Brief landing IV PREFACE. on the shores of England, the Bible of Wycliffe should have come forth from the press of the University of Oxford, as it were to confront its ancient adversary. Let the omen be accepted ! The Rock of the Scrip tures shall still prove the fortress of Protestant Eng land : " Signifer, statue signum : hie manebimus optime." The object of this treatise is to examine the late proceeding of Pope Pius IX. in its bearings upon the law of England, and the law of Europe. The result of the inquiry seems to show conclusively, that the Brief, in one of its provisions, entails a direct violation of the Statute Law of the land, with reference to the title of the See of St. David's, and that in its general object of erecting Sees for Bishops in Ordinary -within the dominions of an independent Sovereign, without the consent of the Crown, it involves a departure from long-established practice, which in such matters constitutes the law. On either ground the Brief is most objectionable. After discussing the law, the Author has ventured to notice, briefly and very imperfectly, some of the numerous arguments, which have been mooted in various quarters, as to the necessity of assimilating the condition of England in accordance with the pro visions of the Papal Brief, to the condition of Ireland, as founded on an immemorial usage, as well as to the propriety of abandoning the outwork thrown up in 1829, as having served its purpose to notify the ag gressive advances of the Papal Power. It is well known that the legislative arrangement of 1829 was a hurried measure, and that the Cabinet PREFACE. V of the Duke of Wellington, almost immediately after the Emancipation Act was passed, retired from office. The ancient frontier was thus somewhat hastily aban doned without any well-defined lines of future defence having been marked out, worthy of the great genius which conceived the defence of the lines of Torres Vedras; a few outworks alone were here and there thrown up, which, as the Duke well observed, could not serve the purposes of real security at all. One of those outworks has now been assailed, and the Papal Power has endeavoured to effect a lodgment in it. The first question is, shall the Papal Power be per mitted to retain its position, or shall the gauntlet, which it has thrown down in the face of the law of the land,' be taken up ? This question, however, although it involves a principle of great iraportance, for the law of the land has been violated, raay be of comparatively minor consequence in a practical point of view for deter mining the issue of the contest, upon which the Papacy has avowed itself to be embarked. That con test raust be fought, if it is to be fought successfully, in the School-room, not in the House of Commonti. The Bible, and not the law of the land, is the weapon with which our forefathers won the victory. The law of the land secured to thera, in a raanner and for a time, the victory which they had earned, and there may be again danger that, reliance having been placed upon the law of the land under very different circum stances, a false issue should be raised in the House of Coraraons, and the question be supposed to be set? at rest by an Act of the Legislature, adapted to meet the emergencj' of the moment. A 3 VI PREFACE. Whatever the wisdom of Parliament raay devise, one thing should be kept in mind, that the Emanci pation Act has been accidentally left incomplete. There is now a great opportunity for marking out broadly and clearly the boundary, across which the Papal Power shall not be allowed to intrude itself. ' The true meaning of the moveraent throughout England is, that there is a general sense of existing insecurity against the inroads of the Papal Power. The instinct of self-defence suggests a cry of alarm. Let it be the future glory of the Statesman, who may have to guide the vessel of the State through the present crisis, to have satisfied that instinct not by a paltry palliative, but by a great and comprehensive measure, which, whilst it confirms the religious liber ties of the Roman Catholic subjects of her Majesty, shall place the religious liberties of her Majesty's Protestant subjects in security from alarm, and be yond the reach of future aggression. A series of documents has been annexed in the Appendix to elucidate the general argument. A copy of the Latin edition of the Brief of Pope Pius IX., from the press of the Propaganda at Rome, will be found amongst thera, which edition may be presumed to contain the substance of the Brief, although not authenticated, as an authorised copy is required to be, by the seal of an Ecclesiastical dignitary. The earlier Briefs are extracted either from the Roman edition of the BuUarium, or from the best historial sources. It will be seen that these earlier Briefs were addressed "with personal limitations," and, in that respect, differ altogether from the Brief of Pope Pius IX. PREFACE. VU Selections from Reports laid before the House of Commons on the subject of Bishops in the British Colonies have been subjoined, with some legal and historical extracts in illustration of the Royal Placet and the Exequatur of the Crown. A few diplomatic papers, illustrating the relations between the Great European Powers and the Holy See, complete the list. • Doctors' Commons, Jan. 16. 1851. A 4 CONTENTS. INTRODUCTORY CHAPTER. Distinction between a Bull and a Brief - - Page 2 Purport of the Brief . . - . . 3 Claim of Cardinal Wiseman to ordinary Jurisdiction - 4 Distinction between the Supremacy and the Sovereignty of the Crown -....- 6 Distinction between Spiritual Authority and Ecclesiastical Jurisdiction ..-.-- 8 System of Vicars Apostolic in England ... ib. No religious necessity for its Abandonment - - 9 EiFect of removal of political disabilities - - - 10 Forbearance of England as to the Protestant Episcopal Com munion in Scotland - - - - - 11 The Apostolicum Ministerium of Benedict XIV. - - 12 No Spiritual element wanting in the English Mission - 13 Decrees of the Council of Trent - - - - 1 4 Inconvenience of the change to the Roman Catholic laity - 15 Inconvenience and danger to the State - - - 16 Avowed object of the new Constitution, a Provincial Synod 17 No organic bond of union amongst the Vicars Apostolic - 18 Synod of Thurles - - - - - - 19 Conduct of the Roman Catholic Clergy in Belgium - 20 Secret Conventions with the Communal Authorities - 21 Encyclical letter of Pope Gregory XVI, - - - 22 CHAP. IL The Law of England - - - - - 22 The Religious Status of the Roman Catholics settled by the Toleration Act of 31 Geo. 3. c. 32. - - - 23 X CONTENTS. The Political Status settled by the Relief Act of 10 Geo. 4. c. 7. - Page 23 Difference between local Bishops and a local Episcopate - 24 M. Portalis's remarks upon Establishment and Protection - 25 Difference between Ecclesiastical Protection and Religious Toleration - - - - - - 26 Repealing effect of, 7 & 8 Vict. c. 102. as to penalties under 1 Eliz. c. 1. - - - - - - 27 Effect of 9 & 10 Vict. c. 59. as to the statutory Punishment under 1 Eliz. c. 1. and 2 Eliz. c. 1. (Irish) - - 28 "Unlawful to maintain the Authority of the Pope as hereto fore claimed or used by him - - - - 29 Dr. Wiseman's Interpretation of the penal clause in the Relief Act as to the Name, Style, or Title of Bishop of any Diocese in England or Ireland - - - 30 Title of Menevia, or St. David's, made free with in the Brief 31 Reserve in certain quarters in not translating the word Menevia - - - - - 32 Interpretation of the penal clause in the Relief Act - 33 Mr. Anstey's admission as to future Sees - - - 34 Presumption of law not in favour of the Subject, but of the Crown - - - - - - 35 The practice examined, as assisting the Interpretation of the Statute - - - - - - -36 The Charitable Bequests Act (7 & 8 Vict. c. 97.) - - ib. The Warrants appointing the Visitors of the Irish Colleges 37 The Dublin Cemeteries (local) Act (9 & 10 Vict. c. 361.) - 38 The Roman Catholic Bishop in Australia - - - 40 The R. C. Archbishop in Sydney - - - - 41 Erection by the Crown of the Metropolitan See of Sydney - ib. Opinion of Colonial Law Officers defended from misstatement 42 The R. C. Bishop in the Island of Mauritius - - 43 Selection of the title of Westminster by Dr. Wiseman - 44 Violation of the Statute Law as to the title of St. David's - 45 Distinction between the Appointment and the Mission of a Bishop ---- .._45 Mode of erecting Episcopal Sees by the law of England . 48 State of the law as to the bringing in and putting into exe cution of Papal Instruments - - - - 49 Repeal of Penalties in 13 Eliz. c. 2. - - - 50 The specific legal character of the Offence left unaltered by the Repeal of the Penalty - - - - 5 1 CONTENTS. xi The legal character of the Offence High Treason - Page 51 Statute of Treasons (25 Edw. 3. s. 5. c. 2.) - - 52 Statute 7 Anne c. 1. operative, though without a penal clause - - - _ - . - ib. Statute of Praemunire (16 Rich. 2. c. 5.) - - - 53 Cardinal Wolsey's Case - - - - - 54 Lalor's Case in the Reign of James I. - - - ib. CHAP. III. Law of Europe. — Misstatements as to proceedings of the Crown - - - - - . -57 No Bishop's See established at Jerusalem - - - 58 Licence of the Crown for Dr. Alexander's Consecration to the Office of a Bishop - - - - - 59 Erection of the See of a Bishop, at Gibraltar, by Letters Patent - - - - - - -60 The Ecclesiastical Jurisdiction of the Bishop of Gibraltar not extended beyond the Queen's Dominions - - 61 The Publication of the Papal Brief on occasion of Dr. Wise man's Enthronement - - - - - 63 Maintenance of the Exequatur of the Crown of France, in respect of a Papal Brief in 1820 - - - 64 Mode of publishing the Bull in " Coena Domini " - - 65 Contents of the Brief of Pope Pius IX. - - - 66 The Pope a Foreign Sovereign - - - - 67 Absence of Diplomatic Intercourse between England and Rome --- ----68 Law of Europe as to Erection of Bishops' Sees - - 69 Cannot be erected without the Consent of the Sovereign - 70 Instance of a See suppressed because the Crown had not consented to its Erection - - - - 71 Practice in England as to Erection of Sees before the Re formation - - - - - - 72 Practice in Europe since the Reformation - - - 73 Roman Catholic States - - - - - 74 States not in Communion with the Holy See - - ib. Concordat with the Netherlands - - - - 75 Negotiations with Prussia — followed by a Bull of Circum scription ib. Negotiations with Hanover— Bull of Circumscription - 76 82 xii CONTENTS, Vicars Apostolic in Denmai-k - - - Page 77 Vicars Apostolic in Sweden - - ¦ -to Vicars Apostolic in Saxony - - " - ti) The Bishops of the Greek United Church in Russia ^ - 80 Erection of their Sees by an Ukase of the Empress Catherine 81 Muscovite Oath in lieu of Pontifical Oath substituted by the Pope in the case of the Irish Bishops in 1791 Polish and Silesian Concordats - - - - 83 The Roman Catholic Church protected in Poland - - 84 Bull of Circumscription for Poland - - - 85 Papal Usurpation in regard to England - - - 86 Law of Nations - - - - - - 87 Lord Stowell's Judgment as to the sanctity of long usage - 88 Maintenance of the ancient practice as observed by the Pope 89 CHAP. IV. General Law as to the Erection of Episcopal Sees - - 91 Territorial Bishoprics - - - - - 92 Local Bishops distinguished from Bishops in partibus - 93 Local Suffragans in England under 26 Hen, 8. c. 14. - ib. Titles of Shrewsbury and Nottingham, Sees of English Suf fragans, taken by the Pope - - - - 94 Respective provinces of the Royal and the Papal Authority 95 Summary mode of procedure in the present instance - 96 Letter of Pope Gregory XVI. to the Emperor Nicholas - 97 The right of Embassy attaches to the Pope, as a Sovereign Power, not in his spiritual character of Pope - - 98 Mode of communicating with the Pope through the Lega tions at Rome - - - - - - 99 Allocution of Pope Pius IX. 20 May 1850 - - - 100 Debate in the Belgian Chambers 15 Nov. 1850 - - 101 The Belgian minister withdrawn from Rome - - 102 Ultra-Montanism of the present Brief ... ib. Cardinal Bellarmine on Papal Absolutism - - - 103 Position of the Roman Catholic laity - - - 104 The Synod of Thurles - - - - - 105 Dr. Cullen's Appointment ----- 106 Cardinal Fransoni's Rescript, 9th Oct. 1847 - - 107 The proposed Catholic Academy - - . . 108 Interference of a Foreign Tribunal . - . 109 Dr. Cullen's example in disobeying the Law - - 1 10 CONTENTS. Xlll The Sussex Peerage Case - - . . Page 111 The office of Bishop, not of Vicar Apostolic, recognised by the House of Lords - - - - 112 CHAP. V. Title and office of Vicar Apostolic unknown to the Canon Law ------- 114 Mission of an Archpriest to England, in 1598 - - 115 Mission of a Bishop m paj-iifiw* in 1622 - - - 117 Four Vicars Apostolic in the reign of James II. - - 118 The ancient supremacy of the Pope now revived - - 119 Usurped authority of the Pope in matters spiritual - 120 Statute of Peter-pence and Dispensations - . . 121 The Papal dilemma as to the Law of England - - 1 22 Personal limitations of the earlier Briefs ... 123 Comprehensiveness of the Brief of Pope Pius IX. - - 124 Analogous proceeding in civil matters - - - 125 The Synod of Thurles - - - - - 126 Anomalous condition of Ireland - - - . 127 Titular Bishops of Irish Sees - - - - 128 Generous Policy of the Legislature towards Ireland - 129 Separateconditionsof toleration, protection, and establishment 130 Erection of a Bishopric at St. Gall - - - 131 The Act of Union between England and Ireland - - 132 The principle of State-Establishment - - - 133 Legislation adapted to variations of condition - - 134 System in the Austrian dominions - - - - ib. Condition of the Roman Catholic Church in Ireland - 135 Identity how far a question of religious or political principle 1 36 Absence of Uniformity of Law - - - - 137 Difficulty of ignoring a violation of the Law - - 138 Absolutism of the Papal Power - . - - ib. Necessity of prescribing limits to it - - - 139 Question of opportunity - - - - - ib. Practice in Belgium - - - - - 140 Feelings of the English nation _ - - - 141 The Pope and the new dignitaries in different categories - 142 Civil and ReUgious Liberty - - - - 143 Spirit of Roman Catholic Laity in England - - 144 The Roman Catholic Bishops in Ireland - - - 145 Spirit of the English People .... ib. The Religious Orders - - - - - 146 Milton's " Areopagitica" - - - - - 147 XIV CONTENTS. APPENDIX. (No. 1.) Litterae Apostolicse Pii PapK IX. Latin Edition Page ii Letters Apostolic of Pope Pius IX. English translation iii (No. 2.) PAPAL BRIEFS. Brief of Pope Gregory XIII. to George Blackwell and two others, anno 1578 - _ . _ xxiv Letter of Cardinal Cajetan, constituting G. Blackwell Archpriest of England .... xxv Second letter of Cardinal Cajetan to the Archpriest - xxix Brief of Pope Clement VIII. to the Archpriest and others ...... xxxi Brief of Pope Clement VIII. to the Archpriest - - xxxviii Brief of Pope Clement VIII. confirming the institution of the Archpriest - - - - - - xii Bull of Consecration of William Bishop, the Elect of Chalcedon, anno 1622 .... xliii Brief of Pope Gregory XV. to William, Bishop of Chalcedon ...... xlvi Brief of Pope Urban VIII. to Richard, Bishop of Chalcedon ...... xlvii Decree of the Congregation about the Bishop of Chalcedon xlviii Second Decree of the Congregation _ . . xlviii Brief of Pope Benedict XIV. to the Vicars Apostolic, the secular and regular Priests - - - 1 (No. 3.) COLONIAL BISHOPS. Appendix A. — Despatch of Lord Aberdeen, announcing the permission of the Government for a Roman Catholic Clergyman to exercise|Episcopal authority in New South Wales - - . . ixxji CONTENTS. XV Despatch from Governor Sir R. Bourke on that sub ject - - . . . Page Ixxiv Ixxv ib. Ixxviii - Ixxviii - Ixxx Ixxxi Votes and Proceeding of the Legislative Council Memorial of Roman Catholic laity at Sydney Despatch from Lord Glenelg as to Dr. Folding's salary Appendix B. — Despatch from Lord Glenelg as to erec tion of a Bishop's See by the Crown, and ap pointment of William Broughton as Bishop of Australia - - - Appendix C Despatch from Governor Sir G. Gipps, as to Dr. Folding's assumption of the style and title of Archbishop of Sydney Appendix D. — Circular of Earl Grey as to the recog nition of the rank of Roman Catholic prelates in New South Wales and Van Diemen's Land Appendix E. — Despatch from Earl Grey as to the style of the Bishops of the Roman Catholic Church - Ixxxii Appendix F. — Despatch from Governor Sir C. A. Fitzroy as to Dr. Gould's assumption of the title of Bishop of Melbourne - . - - - Appendix G. — Despatch from Governor Sir W. M. Gomm as to Dr. Collier being designated Bishop of Port Louis, or of Mauritius - - - Despatch from Earl Grey in reply - - - Appendix H. — The Queen's Licence to consecrate ^ Dr. Alexander Bishop of the United Church of England and Ireland in Jerusalem - - Ixxxix Appendix I. — The Queen's Letters Patent, erecting the Church of the Holy Trinity within the town of Gibraltar into a Cathedral Church and a Bishop's See - - - - - xci Ixxxiv IxxxviIxxxvii (No. 4.) FOREIGN LAW. Appendix J. — Extract from the Institutes of Public and Private Ecclesiastical Law, by Father Dominick Schram. "What the Royal Placet is, and the Justice of it" - xcix XVI CONTENTS. Appendix K. — Extract from Giannone's History of Naples as to the Exequatur Regium - Page civ Appendix L Suppression of a Papal Bull in France, by the Parliament of Paris ... cvii Appendix M. — Answer given by command of the Em. peror Joseph II. to a note of the Nuncio of the Pope, by Prince Kaunitz-Rietberg - - cviii Appendix N AUocuzione di Gregorio P. P. XVI. al Sagro CoUegio nel Concistoro segreto del 22 LugUo, 1842 - . . - . cxii Appendix 0. — Speech of the Belgian Minister of Foreign Affairs in the Chamber, 15 Nov. 1850 - - cjuv THE LETTERS APOSTOLIC POPE PIUS IX. INTRODUCTORY CHAPTER. " Hoc solet habere prsecipuum Apostolica sedes, ut non erubescat revocare quod a se forte deprehenderit fraude elicitum, non veritate promeritum," Epistola ISOma Sti, Bernardi. The Letters Apostolic of Pope Pius IX., which pur port to restore the Episcopal Hierarchy in England, have excited so rauch astonishraent, and awakened so much indignation among all classes of her Majesty's subjects, that, it may be presumed, no apology will be needed for inviting the attention of the English reader to the argument contained in the following pages ; more especially as "an appeal to the reason and good feeling of the English people" has been put forth by Cardinal Wiseraan, as if there were not just grounds for the national dissatisfaction. On the con trary, an exaraination of the document itself, and the publications issued from authorised sources iri explanation and defence of it, must lead to the con clusion, that the See of Rome has on this occasion inadvisedly embarked upon a raeasure, which in its details imports a violation of the law of England, and 2 NATURE OF THE LETTERS APOSTOLIC. in its principle is a departure from the law of Europe, or, in other words, from the established rules which have hitherto regulated the action of the Holy See in relation to the sovereign powers of Europe. It thus places the Roman Catholic subjects of her Ma jesty in a false position -with reference to the Con stitution of the Realm, whilst it involves a glaring infringement of a branch of the law of Nations as regards the Sovereignty of the Crown of England. The document of the date of 29th September, 1850, which has been circulated with the signature of Car dinal Lambruschini attached to it, is not what is technically termed a Papal Bull, i. e. Letters Patent issued from the Roman Chancery with a leaden seal (J^Z/a) attached to them, (sub pluinbo^,hut Letters Apo stolic in the form of a Brief, given under the Fisher man's Ring (a seal on which an image of St. Peter is engraved), and subscribed by the Secretary of Briefs. It corresponds in some respect to what is termed a Writ of Privy Seal in England, as distin guished from Letters Patent of the Crown. A Brief, as its name imports, may be and generally is a shorter and less formal document than a Bull, but it has equal force with any other apostolic writing, when issued in the complete form which the Letters in question exhibit ; as may be inferred from the provisions of the present Brief, which purports to abrogate all the constitutions of the ancient English Church and the subsequent missions, as well as all the rights and privileges of the ancient English sees. There is, therefore, no doubt that it is a document of the highest authority, A Brief, however, seems to differ from a Bull in several respects, which are not unimportant. In the first place it may be suppressed, as it is not issued in the same open form as a Bull ; PURPORT OF THE BRIEF. 3 and there are instances of Briefs being suppressed altogether. In the second place, it may be cancelled or superseded by a second Brief issued in a similar manner ; whereas a Bull can only be cancelled by a Bull ; so that there is less difficulty and expense in the way of cancelling or superseding a Brief than a Bull, the latter having to pass through the Roman Chancery. A Brief is also, for the most part, of less extensive application than a Bull, the latter being soraetiraes binding on the entire Christian world in communion with the See of Rome. The purport of the Brief* raay be stated in a few words. It professes on the part of the Roman Pon tiff, in the plenitude of his apostolic power, to restore the ordinary hierarchy of bishops in the kingdom of England ; and accordingly to erect one archiepiscopal see, and to re-establish or create twelve episcopal sees, and to parcel out the entire realm of England and Wales into thirteen dioceses, respectively assigned to the archbishop and his twelve suffragans. The Brief then proceeds to declare that the aforesaid arch bishop and his twelve suffragans shall enjoy, as the archbishop and bishops of England., all the rights and functions which other Catholic archbishops and bishops of other nations enjoy, according to the sacred canons and the apostolic constitutions. It then abro gates all the constitutions, privileges, and customs of the ancient English Church and the subsequent mis sions, and re-establishes in England the Comraon Law of the Church, in other words, the whole body of Canon Law sanctioned by the Popes. It concludes with decreeing that the Brief itself shall be valid and hold good to all intents and purposes, notwith- * Cf. Appendix. B 2 4 CLAIM TO ORDINARY JURISDICTION Standing all general or special enactments, whether apostolic or published in synodal, provincial, or uni versal councils, the special sanctions as well as the rights and privileges of the ancient sees of England and of the raissions and apostolic vicariates therein afterwards established ; and of certain churches and pious places, even though sustained by oath, apostolic confirmation, or any other security; in a word, notwithstanding all things else to the contrary'-. The wide scope of this document could not Jjut arrest attention, purporting, as it does, to deal ecde" siasticall'y with the reaira of England in the most free and open manner, and not to confine itself to Ro man Catholic congregations, whether subjects of the Sovereign of the Roman States and other foreign Princes, or subjects of her Majesty the Queen of England. If any doubts could have arisen upon this head, they were destined to be speedily dispelled by a Pastoral Letter given out of the Flaminian Gate of Rome on 7th October, 1850, and subscribed Nicholas, Archbishop of Westminster, who is further entitled in the preamble as Cardinal Priest of the church of St. Pudenziana in Rorae, and Administrator Apostolic of the diocese of Southwark in England. In this letter the Cardinal announces, that by virtue of his appointraent -to the archiepiscopal see of Westminster and to the administration of the episcopal see of Southwark, he governs at present, and until such time as the Holy See shall think fit otherwise to provide, shall continue to govern, the counties of Middlesex, Hert ford, and Essex, as ordinar'y thereof; and those of Surrey, Sussex, Kent, Berks, and Hants, with the islands annexed, as administrator with ordinary juris diction. The Cardinal then goes on, in somewhat highflown language, to announce to the faithful of his IN CATHOLIC ENGLAND. 5 said archdiocese and diocese, that " their beloved coun try has received a place among the fair churches, which, normally constituted, form the splendid aggre gate of Catholic Communion ; and that Catholic Eng land has been restored to its orbit in the ecclesiastical firmament, from which its light had long vanished, and begins now anew its course of regularly adjusted action round the centre of unity," &c. &c. He con cludes with enjoining, that his pastoral letter shall be publicly read in all the churches and chapels of the archdiocese of Westrainster and the diocese of Southwark, on the Sunday after its being received. The language of this remarkable pastoral was not calculated to soothe any alarm which raight have been already caused by the contents of the brief; and it is not unreasonable that the subjects of her Majesty should have taken the Cardinal at his word, and believed him to be in earnest, when he an nounced that, by virtue of the Letters Apostolic of his Holiness Pope Pius IX., he clairaed and intended to exercise, as Ordinary, over eight English counties and the adjacent islands, magisterial functions well known to the law of England. It is needless to refer to the excitement which the circulation of the Papal brief and of the various pastoral letters of the newly created bishops has produced. We may proceed to consider the argu ment which has been put forth by authority in behalf of the new hierarchy by Mr. Bowyer. The position which Mr. Bowyer lately held of Reader of Law at one of the Inns of Court, would entitle a treatise •which proceeds from his pen on the legal character of the late act of the Pope to respectful considera tion ; but his argument of itself merits attention from its temperate tone, at the same time that the mys- B 3 6 THE SUPREMACY OF THE CROWN. terious words "by authority" on the title-page, announce the writer to speak as the legal organ of the new hierarchy. Mr. Bowyer's argument divides itself into two heads, the first having relation to the supremacy of the Crown of England, the second to its sovereignty ; the one bearing upon the duty of her Majesty's Roman Catholic subjects in England and Wales, the other upon the relations of the Pope himself to the imperial Crown of England. Mr. Bowyer's legal acumen could not fail to re cognise the distinction involved in the two questions, which Dr. Wiseman has strangely confused in his Appeal, where the latter infers, that " if the act of a subject of her most gracious Majesty, which by law he is perfectly competent to do, be not an infringe ment of her royal prerogative, then that prerogative has not been violated by this new creation of Catholic bishops." There is in reality no parallelism between the acts of a subject of her Majesty and the acts of the Pope, who is not her subject. For instance, it might be perfectly true that the municipal law of England does not expressly forbid her Majesty's Roman Catholic subjects to take the style and title of bishops of English sees erected by the Pope with out the consent of the Crown of England, yet it may be against the public law of Europe for the Pope to erect a bishop's see within the realm of a Sovereign Prince, without having previously obtained the con sent of the Prince. If this latter fact should be established as against the recent proceedings of Pope Pius IX., then we shall have to consider a very dif ferent question from that which has been so much discussed, namely, whether the act of the Pope, al though it may not touch the supre'macy of the British THE SOVEREIGNTY OF THE CROWN. 7 crown in spiritual matters, does not constitute an invasion of its temporal superiority within the realm of England. Mr. Bowyer's pamphlet has been followed by " An Appeal to the English People," on the part of Car dinal Wiseman. This is a production of a very dif ferent character frora Mr. Bowyer's, both in its raode of treating the subject, which is more rhetorical, and its tone, which is replete with irony and sarcasm; but some allowance must in fairness be raade for the writer, smarting for the moment under the revival of mediaeval indignities directed against the raeraory of the system, which he seeks to revive. Dr. Wiseman's position naturally constitutes him the legitimate exponent of the proceedings of the Holy See ; and it may reasonably be presumed that we have now before us, in his Appeal, and in Mr. Bowyer's pamphlet, all that is thought advisable to put forth in the way of stateraent, in explanation of the brief. And here it may be necessary to say a word upon the use of certain expressions by both the above writers. They persist in distinguishing the spiritual and temporal power of the Pope, and also of the Queen of England. And they say that they admit the spiritual power of the Pope, and the tem poral power of the Queen, but reject the temporal power of the Pope and the spiritual power of the Queen. Now, there is a real distinction between spiritual or moral influence and obligation on the one hand, and temporal power, civil or ecclesias tical, on the other. But there is a distinction of degree, not of hind, between the powers by which outward regulations are enforced. The Apostles, for instance, had a great moral and spiritual in fluence in foro conscientice, but no ecclesiastical power B 4 8 .-SPIRITUAL AUTHORITY OF ROME. in foro externa confirraed by any laws civil or otherwise. The Pope, on the other hand, does not exert a mere moral influence, but exercises an eccle siastical power, regulated by the Roman Catholic law, which is a foreign law, but not recognised by the laws of the realm. Mr. Bowyer is, therefore, not quite accurate, when he speaks of the erection of episcopal sees in England as an exercise of the spiritual power of the see of Rome : it is an exercise of its ecclesiastical jurisdiction, and although it may not touch the spiritual supremacy of the Crown of England, it by no means follows that it does not affect its temporal superiority. To return to Mr. Bo-wyer's argument. It appears from the contents of the brief itself, that ever since the settlement of the Reformation of the English Church, in the reign of Queen Elizabeth, England has been considered by the Holy See as a country in partibus infidelium, and the Roman Catholic subjects of the Crown of England have been regarded as under the immediate spiritual authority of the Pope, as Bishop of Rome. In the year 1623, memorable for the arrival in England of Henrietta Maria of France, the Roman Catholic bride of Prince Charles, the Pope, for the first tirae, delegated his episcopal authority over the Roman Catholics in England to the Bishop of Chalcedon, as his vicar apostolic resident in England. The Puritan outburst in the follo-mng reign, — a fact never to be lost sight of in studying the religious features of the English character, — swept away the successor of the first vicar apostolic; nor was it until the accession of the last of the Stuarts, in 1685, that Innocent III. ventured to revive the office in the person of the Bishop of Adrumetum. Three years afterwards, in an evil day for King James II. , the apostolic Nuncio landed in England; and in the VICARS APOSTOLIC. 9 most memorable, perhaps, of all years in English history (a.d. 1688), three additional vicars apo stolic were associated with the Bishop of Adrumetura in administering the spiritual affairs of the Roman Catholics in England. The period which followed the accession of William and Mary is one of com parative obscurity as to the organisation of the Roman Catholic clergy. Thus much, however, is certain, that no step in advance of 1688 has been made by the Holy See until very recent times, when the num ber of vicars apostolic was further increased from four to eight (a.d. 1840). It would thus appear, from the practice, that the system of administering the spiritual affairs of the Roman Catholic body in England by vicars apostolic had been sanctioned by an usage of more than two centuries, and as it seems to have been capa.ble of expanding itself so as to meet any increase in the spiritual wants of that body, there could be no reli gious necessity for its abandonment. It might doubt less have certain inconveniences, which however may be inseparable from the position of the Roman Ca tholic clergy in a country where their church is only tolerated ; and they do not appear to have been considered by Mr. Bowyer or Dr. Wiseman as worthy of notice, or as furnishing a sufficient explanation of the change. On the contrary, when it is consi dered that the vicars apostolic in England possessed the powers of ordinary bishops, and other powers delegated to thera by the Pope beyond those of an ordinary bishop, it may well be doubted whether the system of an hierarchy will be in this respect so con venient to the Roman Catholic body at large as the system of vicars apostolic, even if the Cardinal-arch bishop should be furnished with general legantine au thority, as legate a Latere of the Holy See. 10 REMOVAL OF POLITICAL DISABILITIES. It is said that during the last ten years the number of the Roman Catholic laity and clergy, as well as of their churches and chapels, has considerably in creased, chiefly, indeed, frora the imraigration of Irish settlers, but in some respects, as Mr. Bowyer has justly observed, in consequence of the liberty of religious discussion which the Roman Catholics have of late years enjoyed. It was reasonably to be expected, amongst the immediate consequences of the removal of the political disabilities, to which the profession of the Roman Catholic faith had hereto fore exposed her Majesty's subjects in England, that some stragglers from the Church of England would seek a refuge in the ranks of the Roman Ca tholic body. The existing result, however, what ever it may be, has been for the most part brought about not so much by the operation of elements within the Roman Catholic Church, as by causes external and foreign to it, to which it is only neces sary to allude on the present occasion, in order that their accidental and abnormal character may not be overlooked. Mr. Bo-wyer states that the system of government by vicars apostolic was " avowedly of a mere mis sionary character, being such as the Church uses in heathen countries, e. g. China, or in countries where she is barely tolerated, and that such a missionary state seemed unworthy of the liberality of this country. It seemed to imply a distrust of the jus tice and toleration of public opinion." This is the language of compliment ; and if the Pope himself really intended to pay a compliment to the liberality of England, he has been most unfor tunate in his choice of measures. But a truce to such trifling ! It could never be supposed by any EPISCOPAL CHURCH IN SCOTLAND. 11 reasonable person, that this country could wish to see two Churches established in England, because she had come to tolerate, by the side of her national Church, a Roman Catholic community, with a nu merous clergy exercising over it episcopal and other functions, such as were really necessary for the religious wants of that community. The voice of the State has never spoken in language which per- raits such an inference. On the contrary, the prac tice of England herself should have taught Rome a very different lesson. Highly valued as her own Episcopal Church is by England, she has not sought to set it up on the northern bank of the Tweed by the side of the Established Presbyterian Church of Scotland, but she has been content, as her own legislative act shows (32 Geo. III. cap. 63.), to se cure to the Episcopal Communion in Scotland a similar raeasure of religious toleration to that which she has granted to the Roraan Catholic Communion in England. The Protestant Episcopalian Church in Scotland is maintained by the law of the land under the spiritual authority of bishops exercising episcopal functions within given districts, but without any fixed sees or titles recognised by law. "But a change was required by the constitutional principles of the Church, and for the spiritual interests of the people ! " It is not very intelligible what is meant by the constitutional principles of the Church. The constitution of the Roman Catholic body in Eng land before September, 1850, was founded on the regulations of a Brief*, issued by Pope Benedict XIV- in 1753, and known as the " Apostolicum Minis- teriura," being the words with which it commences. * Cf. Appendix. 12 THE ANCIENT VICARS APOSTOLIC. As that constitution was expressly adapted to the system of Vicars Apostolic, there could not be any thing in it which required the erection of Episcopal Sees in England. Mr. Bowyer must, therefore, allude to the constitution of the Roman Catholic Church itself, as it exists in other States than England. There is no doubt, however, that a very considerable change would be required, in order to admit the full system of the Roman Catholic Church into England, and such is Cardinal Wiseman's explanation. Accord ing to the statement of his Eminence, a change would seem to have been required in rather than by the con stitutional principles of the Roman Catholic Church in England. The choice lay between " another and full constitution which should supply all wants," and " the real and complete code of the Church," in other words, " the entire body of the Canon Law." " It was agreed," he says, " that the old constitution had be come a clog and embarrassment rather than a guide." This may have been the case, but if so, it is one of the many signs that the Roman Catholic clergy seek to take up a new position in England, and, with that object, are striving to obtain a more efficient organisa tion. The Roman Catholics raust not be surprised that Protestant England should feel alarm at such signs. But it is said " that a change was required for the spiritual interests of the people ! " It is not very obvious how the spiritual interests of the Roman Catholic body can be affected by a change, which transfers them from the immediate superintendence of the vicars apostolic of the Pope, to the immediate superintendence of a local metropolitan and his suf fragans, more especially, if the ancient vicars are to be themselves the new bishops. For as it has been THE NEW BISHOPS. 13 already observed, the vicars in the first place pos sessed all the powers of ordinary bishops, and in the second place had other delegated powers beyond those of ordinary bishops, and, in their special character of delegates of the Holy See, could grant dispensa tions in certain matters, many of which were of a spiritual nature, which the new bishops will not be able to grant by virtue of their own ordinary autho rity. Again, the coadjutors of the vicars apostolic, for there were other bishops by the side of the eight vicars, enjoyed a participation in all the faculties and powers of the vicars apostolic, their participation in them being sanctioned by the Holy See itself*, «o that the spiritual wants of the Roman Catholic body lacked nothing essential for their legitimate satisfaction. But it may be said, there are well known dif ferences between a temporary mission and an esta blished church. No doubt, in an ecclesiastical point of view this may not be gainsayed, but there is no spiritual element wanting in a Mission, and it is for the spiritual interests of the people that the change is said to have been required. As far as the decision of the vicars apostolic might need revision, an ap peal from them lay in all raatters to the tribunal or Congregation of Propaganda Fide at Rome, whose decrees were not received except with the confirma tion of the Pope himself. In future, indeed, it may happen, if the decrees of the Council of Trent are to be iraported into England under the new arrange ment, that the appeal may lie to another tribunal, to wit, the Congregation of the Council of Trent, in- * See Evidence of the Right Reverend N. Wiseman, D.D., Coadjutor to the Vicar Apostolic of the Central District of England, before the House of Lords in the Sussex Peerage, June 25. 1844. 14 DECREES OF TRENT. stead of the Propaganda Fide. But this cannot affect the spiritual interests of the Roman Catholics in England, nor can the decrees of Trent well do so, except so far as the introduction of the decrees of that Council would imply that the Roraan Catholic Church had developed not merely its episcopal but its parochial system throughout England, as a necessary condition for those decrees to be executed. For instance, in the matter of raarriage, the old Canon Law, which merely required a priest to be present to give the benediction of the Church, has hitherto prevailed araongst Roman Catholics in England and even in Ireland till a very recent period. The Decree of Trent, on the other hand, annuls and de clares void all marriages which are not celebrated in the presence of the parish priest (coram parocho) and two witnesses. The parish is thus a necessary ele ment in the Tridentine system, and as the decrees of Trent have of late been introduced into Ireland, it may be reasonably presumed, that what has been thought requisite for the spiritual interests of the Irish will not be kept back from the English Roman Catholics. But it is worthy of remark, that much temporal inconvenience in matters of marriage has already resulted to the Roman Catholic laity in Ire land, from the introduction of the decrees of Trent into that kingdom. On the other hand, as the Brief is silent as to the decrees of Trent, and enjoins, " the aforesaid arch bishop and bishops to furnish, at due seasons, reports of the state of their churches to our Congregation of the Propaganda," England seems still to be allowed by the Holy See to remain in the catalogue " of other States than Catholic States." It thus becomes more difficult to understand in what respect her Majesty's THE ROMAN CATHOLIC LAITY. 15 Roman Catholic subjects in England are benefited spiritually by the abandonment of the ancient system : and be it remarked, that the system of vicars apos tolic is not a system confined to heathen countries, but is the recognised mode of adrainistering the spiritual affairs of the Roraan Catholic body in such European States as are not in ecclesiastical com munion, or at least, under treaty-engagements with the Holy See ; but this subject will be considered more fully in a subsequent place. As far as the Roman Catholic laity is concerned, the change is likely to prove in a temporal point of view most inconvenient to them. Hitherto the Ro man Catholic body in England has, under its peculiar constitution, been favoured with an exemption from many of the provisions of the Canon Law which were at variance with the institutions of the country. They now become subject to it in its totality; and a legal writer, a Roman Catholic member of the House of Commons, has already called attention to the fact, that it would appear, in the present state of the law, to be alraost irapossible for the delegated power of the new cardinal and his suffragans " to be so exer cised as not to affect the teraporalities of the Roraan Catholic Church, and consequently the legal rights of persons whether spiritual or lay." The greatest caution, according to Mr. Anstey, will be necessary in this instance; " since the legis lative authority " (conveyed by the Pope in his brief to the archbishop and his suffragans) " being con ferred directly by Rome, any excess, such as the Court of Chancery may be called upon to set aside, is not only an offence against the temporal supremacy of the Queen, but is within the express letter of the Pra3munire Act." 16 POLITICAL INCONVENIENCE. Thus much for the internal change effected in the condition of the Roman Catholic body in England by the brief In a spiritual point of view, the brief is quite inoperative for the advantage of the laity * ; and in a temporal point of view, it is positively prejudicial to their best interests. It reraains that we should consider whether the change contemplated by the brief is or is not fraught -with political inconvenience and even danger to the State. Dr. Wiseman in his " Appeal " states, that it was a point of no light weight and of no indifferent in terest to Catholics, to have the sarcasm of Anglican- writers silenced, " that the Pope durst not name ordinary bishops in England, because conscious of not having authority to do so." Now the sarcasm would have been more safely and more effectively silenced by Dr. Wiseman, had he established by ar gument that the Pope had authority to name ordinary bishops, because, as far as Dr. Wiseman's position in the controversy with Anglican writers is concerned,, he has only cut away an unsound portion of ground from their feet, in order to compel them to find a firmer footing. It would not have been very difficult for Dr. Wiseman to have shown that the argument of his controversial opponents, although rhetorically effective, was logically unsound. They, that is, the Roman Catholics, were told, it is said, " that the very * Dr. Wiseman very justly observes in his first lecture, "The change does not consist in this, that up till lately (Roman) Catholics had no bishops, and now have them ; for their Vicars Apostolic were bishops with foreign titles," — and again, " It has been merely a change of title. Bishops who before bore foreign titles, under which spiritually to govern British Catholics (that is, Roman Catholics in England and Wales), have now received domestic titles." PROVINCIAL SYNOD. 17 outlandish names of their Sees proved thera to be foreigners, and that they were not even real Bishops." Surely Dr. Wiseman himself entertained no doubt of the reality of his episcopal office, and if his title of Bishop of Melipotamus sounded outlandish to Enghsh ears, that of Cardinal Priest of the Church of St. Pu denziana in Rome grates even more, harshly upon them ; and, if names can have any weight, must prove him still to be a foreigner. Measures of so sweeping a kind have assuredly not been adopted by the Pope on the suggestion of the Vicars Apostolic, in order to enable Dr. Wiseman to contend with more effect in argument against the sarcasm of his opponents. " The Catholics must have a Hierarchy," is the language of the Appeal ; " the Canon Law is inapplicable under Vicars Apostolic, and besides many points would have to be synodically adjusted, and without a raetropo litan and suffragans, a Provincial Synod was out of the question." Dr. Wiseraan has here furnished us with the true key, which will explain the otherwise unaccountable proceeding of the Holy See. It is clear that all the spiritual wants of the raembers of the Roman Catholic communion in England were satisfied under the exist ing organisation of the Mission. The Roman Catholic laity in England had complete religious liberty, but the Roraan Catholic clergy, it must be admitted, had not complete ecclesiastical power. They wanted the means of organising theraselves for united action ; they had no power, under the system of Vicars Apo stolic, to meet in a Provincial Council. Nothing, how ever, is suggested by Dr. Wiseraan as to the nature of the points, which, as he states, required to be synodi cally adjusted. If it could be raade out that there were spiritual anoraalies under the existing systera c 18 ORGANIC BOND OF UNION. of Vicars Apostolic, which the Pope was unable^ though desirous, to remove, and which pressed upon the consciences of the Roman Catholic subjects of her Majesty, it is reasonable for the English people to ask that these anomalies should be set forth, and that a Provincial Synod should be shown to be necessary, and alone adequate, for their removal. Unity of practice as well as of belief could surely, if they were wanting, have been enforced by the po-wer which radiated from a common centre through the Vicars Apostolic to every part of the Mission, Dr. Wise man has, indeed, in the second of his Lectures on the new Hierarchy explained most clearly the distinction between the old and new systems. " For in a country divided into Vicariates, however numerous, each has a perfectly free and independent action, as much as if each were situated in a different country ; there is no organic bond of union between them, no one who can convoke them into a Synod, no power to give their joint acts a general authority. Hence great diversity in matters of practice might prevail among them -without any regulating or adjusting power. But in a Hierarchy this is at once corrected: the Bishops of the Sees are connected together through a raetropolitan, or priraate, if there be more than one Archbishop; he can unite them, and from their combined decisions, canonically approved and sanc tioned, emanate rules and principles of conduct, which bind all and secure uniformity." Now it is precisely in respect of its organic bond of union that the new system, as compared with the old, is fraught with political danger ; and it is precisely in regard to its power of combined decision and uni forra action, that the new Hierarchy is an institution opposed to the genius of the constitution of the realm. SYNOD OF THURLES. 19 which allows of no rival legislative body within the realm, whose decrees shall conflict with and prevail against those of the Queen and her Parliament. For it must be remerabered, that the sphere of what is held to be ecclesiastical action by the Roman Catholic Church embraces rauch which, by the law of the land, is considered to be within the precincts of the supreme legislature. Of this fact the late edict of the Synod of Thurles in Ireland is evidence. There, indeed, at a council of Roman Cathohc prelates, con vened by the nominee of the Pope, in whose appoint ment as the Roman Catholic Archbishop in Armagh, the Irish Roraan Catholic subjects of her Majesty had, for the first time, no voice, it was carried by a majority of one that a statute of the land which had been voted for by the leading Roman Catholic merabers of the legislature, should, as far as possible, be frustrated in its execution and rendered inopera tive ; yet it is evident frora the fact that thirteen episcopal members of the council are reported to have entered a protest, that no spiritual question could have been involved in the resolution. Yet under the system of Provincial Synods this decision of the raajority becomes binding on the minority, and thirteen Roman Catholic Bishops in Ireland are constrained, against their conscience, to oppose and thwart the execu.- tion of the law. If the desire to possess this power — to have a Hierarchy — through which alone it can be given, " is," as Dr. Wiseman states, " essentially a Catholic purpose and a Catholic object," then Catholic objects and Catholic purposes are not those which the law of the land can be expected to further ; and Catholic organisation, in the raanner in which it is provided for by the Letters Apostolic, and in the sense in which it is intended, according to Dr. Wise- 0 2 20 PAPAL POWER IN BELGIUM. raan's own avowal, to be carried into execution in England, becomes inconsistent with the safety of the State, for it saps the foundation of the pillars of obedience to the law of the land, upon which the safety of the State rests. Let us for a moment turn our eyes from England to a neighbouring country, where the Roman Catholic Church is protected alike with all other religious communions, and is not merely tolerated, as in Eng land. " How little fear," says Dr. Wiseman, in his first Lecture, " is entertained in that country (Bel gium) of dangers to the State from the action of the Papal power, in parcelling out the land into spiritual territories, — how simple the definition of the re ciprocal rights of a Church not established in mo nopoly, and of the civil government." Be it so adraitted for the purpose of the argument, yet very considerable fear has been entertained in that coun try of danger to the State from the ecclesiastical encroachments of the Roman Catholic Bishops upon the law of the land, and from a one-sided reciprocity on their part. For instance, by the 84th Article of the Loi Communale of March 30. 1836, the Council of the Commune was to nominate the professors and teachers attached to the comraunal establishments for public instruction. By the 6th Article of the Loi Organique de I'lnstruction Primaire, " religious and raoral instruction was to be given at the com munal colleges, under the direction of the ministers of the worship professed by the majority of the pupils of the school," — the rainority being dispensed with frora attendance on such occasions. It was also provided by the 7th Article, that " the religious and raoral instruction should be carried on under the superintendance of the delegates of the heads of each SECRET CONVENTIONS. 21 denomination of worship (chefs des cultes)," who, as well as the ministers of religion, should further have the right of inspecting the schools at all times. Not content with so liberal a provision on the part of the State, and with so exclusive a dominion in religious matters, the Bishops made secret conventions with the coramunal authorities, the purport of which was to concede to the Bishops a veto on all the professors and teachers, as a condition of allowing their clergy to give any religious instruction in the communal schools. The existence of these secret conventions became dis closed first of all in the diocese of Tournai, when it was found, on inquiry, that not fewer than seventeen conventions had been secretly enforced by the Bishops on the communal authorities. The State was ac cordingly called upon, in 1845, to put down this attempt to fetter the freedom of the comraunal au thorities in the discharge of the duties iraposed upon thera by the civil power ; and it accordingly took the necessary raeasures to prevent the communal colleges maintained by the State from becoming, as in fact they were on the point of becoming, colleges of the Roman Catholic Church. Since that time the Roman Catholic Bishops have refused to allow their clergy to give any religious instruction in the comraunal col leges ; and in that respect, the new law of last year on Secondary Instruction is not yet carried into exe cution by the Bishops. Surely Belgiura, to which a further reference will be made in the next chapter, cannot be safely quoted in illustration of the poli tical harmlessness of Papal Aggression. A further observation may be added upon the attitude of the Roraan Catholic Church in Belgium. It is well known that the Belgian clergy gave in their adherence en masse, with a very few exceptions, to the c 3 22 ENCYCLICAL LETTER OF GREGORY XVI. famous Encyclical Letter of Gregory XVI. (18 Sept. 1832), That Encyclical Letter conderaned, in the most absolute manner, " that absurd and erroneous maxim, or rather wild notion, that liberty of conscience ought to be assured and guaranteed to every person,"* Whe ther the Pope on this occasion adopted a sound view, it boots not to inquire ; but this at least may be said, that it would ill become those who deny liberty of con science to others, to demand, under the plea of liberty of conscience, an impunity in infringing the solemn sanctions of the Law of the Land, * " Atque ex hoc putidissimo indifferentismi fonte absurda ilia fluit ac erronea sententia, seu potius deliramentum, asserendam esse ac vindicandam cuilibet libertatem conscientiee." — Epistola Encyclica Gregorii Divina Providentia Papce XVI." 23 CHAP. II. It is said by Dr. Wiseman that the Emancipation Act (10 Geo, 4. c. 7,), preceded and followed by others of less magnitude, has admitted the (Roman) Catho lics of the British Empire to complete religious tolera tion. In its strict sense this statement is correct. But in granting them complete religious toleration, the law has not conceded to them the fuU power of eccle siastical action, such as they possess in countries foreign to the dominion of her Majesty, e.g., within the territory of the Holy See itself, for they are restrained from many ecclesiastical observances and practices, in which they may elsewhere indulge, by the charter itself of their political rights. Besides, it raay be observed, that the 10 Geo. 4, c, 7. is not so rauch entitled to be regarded as the Toleration Act of her Majesty's Roraan Catholic subjects as 31 Geo, 3. c. 32. (a. d. 1791), which removed the pains and penalties attaching by the Statute Law to the exercise of the Roman Catholic religion. The Relief Act (a.d. 1829), on the other hand, or, as it is coraraonly called, the Emancipation Act, bestow^ed upon them a political status, many years after they had been allowed freely to exercise their religion. It was further an Act of the Imperial Parliament, and at once extended to Ireland, but it made no change in the religious status of the Roman Catholics, Dr, Wiseman, however, contends " that when Emancipation was granted to c 4 24 TOLERATION ACT. (Roman) Catholics, full power was given to them to have an Episcopate." Now the Toleration Act (s. 5,) had permitted them to have Bishops, when it allowed their " ministers of any higher rank or order than priests," to perform ecclesiastical functions in their assemblies for religious worship, whereas the Eman cipation Act introduced no change in the law with regard to their Bishops, nor did it by any of its pro visions give to the Roman Catholics full power to have an Episcopate, if by that term is meant a Hierarchy, or body of episcopal rulers. There is a double fallacy in Dr, Wiseman's argument ; the first is in the matter of fact, and the second in the mode of statement. The first has been disposed of already, and as to the second the fallacy consists in not distinguishing a collective. body of Bishops, from an aggregate number of Bishops, Where the Bishops of a country can act collectively as a body, as well as separately as individuals, there is said to be in that country an Episcopate*, but when they can only act as individuals, whether singly or aggregated together in numbers, there is no Episco pate, although there are Bishops. Now that this is not an ideal distinction may be gathered from the course of events in a neighbouring country. In Bel gium, for instance, where the Roraan Catholic Church is protected, and has been guaranteed by the 14th Article of the Constitution of the land, alike with every other religious comraunity, the public exercise of its religious worship, there are of course Roman Ca tholic Bishops, but there is no Roman Catholic Epis copate. The Bishops have indeed sought to obtain a recognition of themselves in a corporate capacity from the State, but the State has distinctly refused to re- * '' Episcopat — dignite d'Eveque ; il se dit aussi d^un corps d^Eveques'' — Diet, de I'Academie Frangaise. LEGAL CHARACTER OF AN EPISCOPATE, 25 cognise them as an Episcopate, although it acknow ledges them as Bishops. * In fact it is in this point, amongst others, that establishment differs from protec- tion, and, a fortiori, from toleration. Consequently, when Dr. Wiseraan says, that when Eraancipation was granted to (Roman) Catholics, full power was given them to have an Episcopate, he overstates the legal consequences of toleration ; and it is on this funda mental error that the whole of his arguraent is built up. He would fain represent that there is a mere difference of degree, as it would seem from his reason ing, between an Episcopacy in its ordinary form,, and Bishops exercising authority as Vicars Apostolic in partibus infidelium. " Not to allow Bishops," he says, " would have amounted to a total denial of religious toleration." Be it so admitted. Bishops were allowed by the Toleration Act of Geo. 3,, but it does not follow, because a denial of Bishops would have been a denial of religious toleration, that the concession of an Episcopate is the necessary result of political eman cipation. There is not merely a difference of kind, between titular Bishops acting as Vicars Apostolic of the Pope, and local Bishops acting by their own au thority, but there is a further difference of degree, if not even of kind, between the action of local Bishops accidentally aggregated together, and the action of local Bishops in the collective capacity of an Episco pate, M. Portalis, in his Rapports sur le Concordat de Juillet 15. 1801, makes some pertinent remarks on the distinction between establishment and protection. * On the occasion of this refusal, which occurred in 1845, the Prime Minister of Belgium, in reply to the Archbishop of Malines, produced from the archives a rescript of the Empress Maria Theresa, expressly forbidding the Belgian Bishops to address the Imperial Crown as I'Episcopat Beige under heavy penalties. 26 ECCLESIASTICAL PROTECTION. An Estabhshed Church admits of degree ; it raay be either exclusive, like the Roman Church within the States of the Holy See and in Spain, or dominant,like the Greek Church in Russia and the National Church in England. Protection, on the other hand, may be accorded to several, as in France, or to all religions, as in Belgium. Protection also admits of degree. It may be full ecclesiastical protection, which, however, stops short of establishment, inasmuch as if the State protects all religions equally, they must be restricted from entering into conflict and collision with one an other, other-wise one will becorae dominant over the others; or it may be so slight a protection as to become mere toleration, and that too rather of a re ligious than an ecclesiastical kind. The system of protection, however, differs essentially from that sys tem of indifference, which is termed toleration, under which the law is said to ignore the existence of the tolerated religion, or rather to close its eyes against its existence. Toleration is thus a sort of halting-place between exclusion and protection, and may not always prove to be a position permanently tenable. But it may be argued, that the religious toleration of her Majesty's Roman Catholic subjects has been rendered more complete by the statutes subsequent to 10 Geo. 4. c. 7. Be it so admitted : but no degree of toleration is equivalent to establishment, as is evident from the state of affairs in Belgium, in which the Roman Catholics have ecclesiastical protection, which they do not, as already shown, possess in England, having here only religious toleration. For the later statutes have not raade lawful anything in respect of the supremacy of the Pope, as clairaed, used, or usurped within this realm before the reign of Queen Ehzabeth, For example, 7 & 8 Vict. c. 102., THE LAW OF QUEEN ELIZABETH. 27 entitled " An Act to repeal certain Penal Enactments raade against her Majesty's Roman Catholic Subjects," repeals the enactments of 1 Eliz. c, 1, ss, 29, 30, in respect of the penalties of Prasmunire attached to the second offence, and of High Treason attached to the third offence of any person, " who shall maintain or defend the authority, pre-eminence, power, or jurisdiction, spiritual or ecclesiastical, of any foreign prince, prelate, person, state, or potentate, whatso ever, heretofore claimed, used, or usurped within this realm, or any dominion, or country being within or under the power, dorainion, or obeisance of your Highness ; or shall advisedly, raaliciously, or directly put in ure (use) or execute any thing for the extolling, advanceraent, setting forth, maintenance, or defence of any such pretended or usurped jurisdiction, power, pre-eminence, and authority, or any part thereof; " but it left unrepealed those enactments of 1 Eliz, c. 1. ss. 27, 28., " that then every such person and persons so doing and offending, their abettors, aiders, pro curers, and counsellors, being thereof lawfully con victed and attainted according to the due order and course of the common law of this realm, for his or theiv first offence shall forfeit and lose unto your High ness, your heirs and successors, all his and their goods and chattels as well real as personal." " And if any such person so convicted or attainted shall not have or be worth of his proper goods and chattels, to the value of twenty pounds, at the time of his conviction or attainder, that then every such person so con-victed or attainted, over and besides the forfeiture of all his said goods and chattels, shall have and suffer imprisonment by the space of one whole year, without bail or mainprise," The subsequent statute, 9 & 10 Vict. c. 59., enti- 28 THE LAW OF QUEEN VICTORIA. tied " An Act to relieve her Majesty's Subjects from certain Penalties and Disabilities in regard to Reli gious Opinions," further repealed so rauch of 1 Eliz. c. 1. and 2 Eliz. c. 1, (Irish) as males it punishable " to affirm, hold, stand with, set forth, maintain, or defend as therein is mentioned, the authority, pre eminence, power, or jurisdiction, spiritual or ecclesi astical, of any foreign prince, prelate, person, state, or potentate, theretofore claimed, used or usurped within this realm, or any dorainion or country, being within or under the power, dominion, or obeisance of her Highness, or to pnt in ure (use) or execute any thing for the extolling, advancement, setting forth, maintenance, or defence of any such pretended or usurped jurisdiction, power, pre-eminence, and autho rity, or any part thereof, or to abet, aid, procure, or counsel any person so offending." But having reraoved the statutory punishment, the Legislature stayed its hand, and left the offence pre cisely as it was by 1 Eliz. c, 1., or any earlier statute, or by the Coraraon Law, as will be seen from the tenor of the following provision : " Provided always and be it declared, that nothing in this enactment contained shall authorize or render it lawful for any person or persons to affirm, hold, stand with, set forth, main tain, or defend any such foreign power, pre-eminence, jurisdiction, or authority, nor shall the same extend further than to the repeal of the particular penalties and punishments therein referred to, but in all other respects the law shall continue the same, as if this enactment had not been raade." Now it would appear on the face of this last pro vision, that it is still against the law of the land, for a subject of her Majesty to maintain or defend the spiritual or ecclesiastical authority of the Pope, as THE ROMAN CATHOLIC OATH. 29 heretofore claimed or used by him, within this realm, or to put in use or execute any thing for the mainte nance or defence of it. On the other hand, the Roman Catholic subjects of her Majesty have been relieved from the necessity of making any positive renunciation of the Pope's spiritual authority as a condition of enjoying their full civil rights. Whilst their religion is thus completely tolerated, and they are not called upon -to do or declare any thing against their religious convictions, they are, on the other hand, restricted from putting into use or execu tion the complete ecclesiastical system of their church. The contrary position cannot be reasonably main tained in the face of the provision and declaration of the statute just recited. But Cardinal Wiseman is not content to infer that Emancipation conveyed to the Roman Catholics the right to have an Episcopate, but he says, " the law plainly foresaw and provided for our having regular Bishops one day instead of Vicars," To prove this he first appeals to the language of debate in the House of Lords, before he discusses the Statute Law ; but it is a Avell known rule in the interpretation of statutes, that the intention of the Legislature must be sought for within " the four corners " of the statute, and not be gathered from the speeches of individual legislators. He then sets up an analogy between the concession to a distant country of the power to rule itself by a monarchical government, and the concession to the Roman Catholics of religious toleration, as if there could be any similarity of relation between such a supposed condition of political independence and the religious condition of her Majesty's Roraan Catholic subjects within this realm. Having so far smoothed the way for the discussion, 30 TITLES OF ENGLISH BISHOPS. Dr. Wiseraan proceeds to grapple with the Municipal Law, by stating, secondly, " that the law did put on a restriction." Now it is assumed, in this proposition, that a Statute is expressly needed to restrict the full ecclesiastical action of the Roman Catholic Church in England, as if there could be no such restriction at Comraon Law ; and an axiom of law is accordingly raade to do duty both by Dr. Wiseman and Mr. Bo-wyer with considerable confidence in its conclu siveness. It is said,. " expressio unius est exclusio alterius." Under cover of this general proposition, it is maintained by both writers, that the Eraancipation Act, by forbidding any one from assuming or using the style or title of any Archbishopric or Bishopric of the Established Church, virtually allows Roman Ca tholics to assume any others. Now the axiom of law is an approved axiom, but it is on this occasion mis applied. In the first place, the statute does not in words forbid the use of such titles ; on the contrary, it is assuraed in the statute that it is an offence at Com mon Law to use them, unless authorized by law. The statute simply enacts that a penalty of one hundred ' pounds shall attach to the offence. "Be it therefore enacted, that if any person, after the commencement of this Act, other than the person thereto authorized by law, shall assume or use the name, style, or title of Archbishop of any province. Bishop of any diocese, or Dean of any deanery, in England or Ireland, he shall, for every such offence, forfeit and pay the sum of one hundred pounds," The offence, then, is not created by any enactment of this statute ; on the contrary, the as sumption and use of the style and title, without lawful authority, is dealt with penally *, as being an offence. * A penalty alone implies a prohibition, though there are no prohibitory words in tlie statute, (Bartlett v. Vinor, Carthew's THE SEE OF ST. DAVID's, 31 The only inference which the axiom above cited might warrant, would be, not as Mr, Bowyer asserts, that the assumption and use of new ecclesiastical titles, not belonging to the Established Church, is lawful, but that it does not expose the party so offend ing to the penalty specified in the statute, it being supposed, for argument's sake, that the operation of the statute is limited to the titles of the Established Church, For instance, if the Bishop of Rorae had chosen to consecrate a Bishop in partibus, with the title of Bishop of London or Oxford, without pro fessing to erect a new See of London or Oxford, the titular Bishop would still have exposed himself to the penalty ; but if he had ordained him Bishop of Dorchester in partibus, the party assuraing and using in England the title of that extinct See would not have come within the provision of the statute. But it may be worthy of notice here, that the Brief of Pope Pius IX. contemplates an illegality, even on Mr, Bowyer's and Dr. Wiseman's interpretation of the statute, for it constitutes, in Wales, according to the version of the Brief published, as far as it can be, by authority, in her Majesty's reaira of England, a Bi shopric of Menevia, or St. David's, united with New port, and it speaks in express terms of the Bishop of St. Davids.* Reports, p, 252.) ; but it does not follow, where an act is otherwise treated as an offence, that the remission of the penalty by a subse quent statute affects the legal character of the act. * " In the district of Wales there will be two Bishoprics, viz, that of Shrewsbury, and that of Menevia, or St. David's, with Newport." " We assign to the Bishop of St. David's and Newport as his diocese northward, the counties of Brecknock, Glamorgan, Pem broke, Radnor, and the English counties of Monmouth and Here ford." It is worthy of remark that there are two English versions of 32 EPISCOPUS MENEVENSIS. Now the style and title of Episcopus Menevensis, or Bishop of St. David's, cannot be assumed by the no minee of the Holy See without a direct violation of the statute 10 Geo. 4. c, 7. s. 24., and the con sequent forfeiture on each occasion of one hundred pounds of good and lawful money of the Queen. This raay have been an oversight on the part of the Holy See, unless it is to be considered in the light of a further experiraent upon the elasticity of the Sta tute Law of England. Again, Mr. Bowyer writes : " It is clear that the Act forbids the assumption and use, not of the style and title of Archbishop, Bishop, or Dean of any place whatever in England or Ireland, but only of any Archbishopric, Bishopric, or Deanery belonging to the Established Church." Such, it is possible, might prove to be the decision of her Majesty's Judges, if this question should ever come to be raised in West minster Hall, but it is by no means clear that the purview of the statute is so limited. On the con trary, it is probable, for it is within the spirit of the the Brief in circulation, the one dated 24th September, the other 29th September. In the former, which first appeared, the name of St. David's does not occur, but Merioneth is written, as the English equivalent of Menevia, although the county of Merioneth (Mervini- ensis) is, in the very next sentence, placed in the diocese of Shrews bury. The latter, which is the more correct version, has been adopted at the " Metropolitan Catholic Printing Office " in London, and from that version the above passages have been extracted : it cor responds with the Latin edition, issued from the press of the Con gregation of the Propaganda Fide at Rome, a copy of which will be found in the Appendix. The Tablet newspaper (October 26. and November 2,), which published the Latin edition, and pro fessed to give an English version of it (October 26.), has omitted to translate the word Menevia, and so the Papal appropriation of the title of an existing English See is gracefully veiled in the obscu rity of a learned language. A similar reserve has been exercised by the editor of the Roman Catholic Directory for 1851. RESTRICTION OF BISHOPS' TITLES. 33 statute, that the statutory penalties may be held to extend to the use of such titles as Archbishop of Westminster, Bishop of Northampton, &c., being the titles severally of an Archbishop of a Province, and a Bishop of a Bishopric in England. The statute, for instance, speaks of the style or title of Archbishop of any Province, Bishop of any Bishopric in England or Ireland, in an indefinite sense, and does not confine itself, by the use of the definite ar ticle, to the style or title of the Archbishop of any Province, the Bishop of any Bishopric, i. e. of any ex isting Province or Bishopric. Yet it seem reasonable to suppose, that if the assumption or use of the styles or titles of the existing Archbishops of Provinces and Bishops of Bishoprics in England and Ireland had been alone in view, the indefinite form of expression would not have been used, when the definite form would have been the proper form. At the same time it must be admitted, in fairness to Dr, Wiseman and Mr. BoAvyer, that the statute, being a penal statute, must be construed strictly. The words of the twenty-fourth clause are, " And whereas the Protestant Episcopal Church of England and Ireland, and the doctrine, discipline, and govern ment thereof, and likewise the Protestant Presbyte rian Church of Scotland, and the doctrine, discipline, and government thereof, are, by the respective Acts of Union of England and Scotland, and of Great Britain and Ireland, established permanently and inviolably : and whereas the right and title of Arch bishops to their respective Provinces, of Bishops to their Sees, and of Deans to their Deaneries, as well in England as in Ireland, have been settled and established by law : Be it therefore enacted. That if any person, after the coraraenceraent of this Act, other than the D 34 PRESUMPTION OF LAW. person thereunto authorised by law, shall assume or use the narae, style, or title of Archbishop of any Province, Bishop of any Bishopric, or Dean of any Deanery in England or Ireland, he shall, for every such offence, forfeit and pay the sum of one hundred pounds." Mr. Anstey, in coraraenting upon this clause of the statute, admits, that if Pariiament should hereafter create a new See of the Established Church, and give it one of the Papal titles, there is reason to believe that the statutory penalty would at once attach to the continued assumption of the title by the Roman Catholic Prelate. But this admission, if correctly raade, is fatal to the strict interpretation of the sta tute ; for if we are to limit the application of the penal enactment by any words in the preamble of the clause, then only those Archbishoprics and Bishoprics would be protected which had been settled and established by law at the passing of the statute, that is, before A.D. 1829. But to suppose that the clause could be satisfied by such an interpretation, which would allow, in 1850, two Bishops of Ripon, and two Bishops of Manchester, but only permit one Bishop of London or one Bishop of St. David's, is to suppose the law deliberately contemplated a result which would be not raerely anomalous, but also at variance with the very principle elicited by Mr. Bowyer and Dr. Wiseman from the preamble, as the basis of their argument. Again, whenever a statute is enacted for the pur pose of restraining a liberty hitherto allowed by law, it may be presumed, that the liberty, which the statute does not expressly take away, still reraains. But it would be unreasonable to contend that, prior to the 10 Geo. 4. c, 7. s. 24, the liberty of assuraing titles froin THE PRACTICE OF THE STATE. 35 local Sees, other than those of the Established Church, was enjoyed by her Majesty's Roman Catholic sub jects. Yet, unless that should have been the case, the presumption would be, not in favour of the liberty of the subject, but of the prerogative of the Crown, and the legal axiom of " the exclusion of one class imply ing the admission of all others," does not apply. It has been observed, that the Emancipation Act treats the assumption of such titles as an offence, although there is no clause of the statute which for bids it. Accordingly, if the penalty were even to be repealed, the offence at Common Law would still re main, and it would still continue to be not lawful to take the name, style, or title of Archbishop of any Province, Bishop of any Bishopric in England or Ireland, There are, therefore, great difficulties in the way of accepting Mr, Bowyer's and Dr, Wiseman's inter pretation of the statute as being clear in the subject- matter of its restriction, more particularly when we look to the practice since the statute. And here it raay be allowable to bring into the field, out of the opposite carap, a well-known axiom of law, as well as of comraon sense, to wit, " Optimus interpres legum usus." The practice which has grown up within the United Kingdora, to which the operation of the statute is confined, raust throw no inconsiderable light on the raeaning of the penal clause, if it be obscure. Now the practice is clear : there have been no Roraan Catholic Bishops who have held theraselves forth to be Bishops of Sees situated in England, until the issuing of the Papal Brief But in Ireland the case is otherwise ; yet on no occasion has the assumption and use of the name, style, or title of Archbishop of any Province or Bishop of any Bishopric by the Ro- D 2 36 CHARITABLE BEQUESTS ACT. man Catholic Prelates in Ireland been recognised directly or indirectly, as lawful. Their episcopal orders have, indeed, been recognised in a recent act of the legislature, and Social rank has been conceded to them by the Governraent in 1844, in carrying out its provisions, by giving thera precedence imraediately after the prelates of the Established Church of the same degree, in the Coraraission under the Charitable Bequests Act (13th January, 1845),* Now the Act itself (7 & 8 Vict, c. 97,), intituled " An Act for the raore effectual application of Cha ritable Donations and Bequests in Ireland," speaks of " any Archbishop or Bishop, or other person in holy orders of the Church of Rome officiating in any dis trict," thereby recognising the episcopal office with a gradation of rank in it ; and accordingly the executive Government has followed out this principle in the Commission just alluded to, in which the Roman Catholic Prelates are designated as the Most Reverend Archbishop William Crolly, the Most Reverend Arch bishop Daniel Murray, the Right Reverend Bishop Cornelius Denvir, But Mr, Bowyer states further that, in the instru ment appointing the visitors of the new colleges. Dr. Cullen and Dr, Murray are described as the Most Reverend the Roraan Catholic Archbishop of Armagh, and the Most Reverend the Roman Catholic Arch bishop of Dublin. But, if it be assumed for the moment, on Mr, Bowyer's authority, that such is the fact, these designations are not, as he supposes, terri- * It appears from certain " Reasons for not signing an Address to her Majesty," published by the Earl of St. German's, that the order in which the names of the Commissioners were arranged, was simply intended to denote the order, in which they were enti' tied to take the chair at the meetings of the Board. IRISH COLLEGES. 37 torial titles, such as are borne and enjoyed by Prelates of the Established Church, but mere descriptions severally of Dr. Cullen and Dr. Murray with refer ence to their archiepiscopal offices. The Queen of England, for instance, to take an illustrious example, is the territorial title of her Majesty Queen Victoria ; the reigning Queen of England is a description of her Most Gracious Majesty with reference to her office of supreme governor. So the Archbishop of Dublin is a territorial title borne by the Most Reverend Dr. Whately; the Protestant Archbishop of Dublin would be a description of his Grace with reference to his archiepiscopal office. Mr. Bowyer has thus unintentionally confused two very different ideas ; but further than this, he is unfortunately in error as to the raatter of fact, which is the raore to be regretted, as her Majesty's Govern ment is sought to be placed by him in the wrong. For example, in the warrant appointing the visitors of Queen's College, Belfast, the Roman Catholic Pre lates are designated as the Most Reverend Archbishop Paul Cullen, the Right Reverend Bishop Cornelius Denvir; and in the warrant for Queen's College, Cork, they are described as the Most Reverend Arch bishop Michael Slattery, the Right Reverend Bishop William Delany ; and in the warrant for Queen's College, Galway, they are named as the Most Reve rend Archbishop John M'Hale, the Right Reverend Bishop Lawrence O'Donnell. There is therefore no precedent in this raeasure for Mr, Bowyer to rely upon, in respect of what are, in his estimation, terri torial titles. He has not been more happy in speaking of the style of the " Irish Catholic Prelates " having been recognised by the Government on the ground that D 3 38 DUBLIN CEMETERIES ACT. they are styled as " Archbishops." The term style, in 10 Geo. 4. c. 7., has a well-known legal mean ing*, being, for instance, the style in which all archi episcopal or episcopal acts run; e. g. "We, John Bird, by Divine Providence, Lord Archbishop of Canter bury," &c,, or, "We, Charles James, by Divine Per raission, Lord Bishop of London," &c. There is also, to speak somewhat loosely, the ordinary style of desig nation of the spiritua^l peers, such as " His Grace the Lord Archbishop of Canterbury," "His Lordship the Bishop of London," and the concise style of signa ture, as " J. B. Cantuar." or " C. J. London." both of which raay reasonably come within the purview of the statute, as well as the full legal style ; but it is verging on an absurdity to say, that the style of the Irish Catholic Prelates has been recognised hy the executive Government, because they are described by their office of Archbishops. Again, a local Act, 9 & 10 Vict, c. 361. s. 28., known as the Dublin Cemeteries Actf , speaks of " His Grace Daniel Murray, Archbishop, and his successors exercising the same spiritual jurisdiction as he now exercises in the Diocese of Dublin, as an Arch bishop." It then proceeds to give him power to ap point, from time to time, a clergyman of the Roman Catholic Church as chaplain, and enacts that such chaplain shall be licensed by, and subject to the juris- * Gray's Ecclesiastical Law, p. 338. ¦]¦ It is specially enacted that this Act shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such. This provision, however, does not constitute it a public Act to which every body is considered as assenting (per Lord Hardwick, 1 Term Reports, 93.), but merely enables a copy, printed by the king's printer, to be made evidence in a court of law ; otherwise it would be necessary to produce an examined copy, which had been compared with the original roll at Westminster. DIOCESE OF DUBLIN. 39 diction of the said Archbishop, who shall have power to revoke his licence, and to reraove him for any cause which the Archbishop raay deera to be canonical. This statute, having thus acknowledged Dr. Murray as exercising a spiritual jurisdiction as Archbishop, vir- tute ordinis, proceeds to give him an ecclesiastical jurisdiction in the appointment and removal of a chaplain, allowing him to regulate his judgment in this matter by the Canon Law. Tt does not, hoAV- ever, allow the chaplain to have an appeal to Rome, nor does it recognise in any Avay the supremacy of the See of Rome, but raakes the Archbishop the absolute judge as to the propriety of his reraoval. Whatever powers, therefore, Dr, Murray may choose to exercise over a Roman Catholic clergyman, in licensing him to such chaplaincy of the cemetery, in accordance with the provisions of this statute, or in reraoAT.ng him therefrom, he will exercise it by virtue of an Act of the United Parliament, not by virtue of his appointment from the Pope; so that, prac tically, this statute does not carry the question any further in its declaratory part with respect to the territorial title, although it admits, for the first time in such matters, the arbitrary apphcation of a foreign law (lex). It is an insstance of a statute most incau tiously worded in this respect, as well as in regard to the Diocese of Dublin, which is an expression open to ambiguity, there being one Diocese according to the law of the land, and another Diocese according to the foreign law. It is to be regretted, that greater care has not been taken with the phraseology of several documents of a public nature in which spiritual jurisdiction is spoken of, where spiritual authority would have been the more appropriate and less ambiguous phrase, as juris- D 4 40 AUSTRALIAN BISHOPS. diction properly implies a forum externum, authority need only refer to the forum conscientice.'* Let us pass on to the colonies, inasmuch as Mr. Bowyer has again fallen into error in a very important statement in regard to our Australian colonies. Now, the earliest occasion of any Roman Cathohc Prelate being allowed to exercise episcopal authority in any of our Australian colonies was in the year 1835, Avhen her Majesty's Governraent, in a spirit of benevolent consideration for the religious wants of the Roraan Catholic population, acceded to the pro posal, that Dr. Folding, who was, when first selected, intended only to officiate as chaplain, should be per raitted to exercise episcopal authority.f In the same year, her Majesty was pleased to erect, by letters patent, the Archdeaconry of New South Wales, and to nominate Mr. Broughton to the new See, as Bishop of Australia. Dr. Folding, as it appears, continued to exercise episcopal functions as Vicar Apostolic, under the title of Bishop of Hiero-Csesarea in parti bus, for about five years, Avhen he quitted the colony * Lord St, German's calls attention to the fact that a petition was once received by the House of Commons from a Roman Catholic prelate styling himself Archbishop of Tuam, and that it was argued on that occasion, that the law did not prohibit the assumption of that title by a Roman Catholic, there being no longer an Archbishop of Tuam of the Established Church. It seems, however, that there was a division against the reception of the petition, so that the principle was disputed on a question in volving theRight of the Subject to petition the House of Commons, in which the greatest possible latitude is allowed. The resolution of the House on this occasion does not in any way establish the law, but merely records the opinion of a majority of members then present, as to the objection not being fatal to the reception of the petition. f See Appendix A. SEE OF SYDNEY. 41 for a tirae, and returned to it once raore in March, 1843. On his return he seems to have brought back with him the title of Archbishop of Sydney, in lieu of Bishop of Hiero-Ca3sarea*. He does not, however, appear to have sought at once an authoritative re cognition of his local title, but left his narae at the Government House, as " the Most Reverend Dr. Pol- ding." The circurastance, indeed, of an archiepiscopal See being erected in the city of Sydney, Avithin the already existing Diocese of the Bishop of Australia, led to a formal protest on behalf of the Bishop and his clergy, and her Majesty's Government has hitherto never re cognised any archiepiscopal See of Sydney. t More over, her Majesty had been pleased to take into con sideration the great extent of the existing Diocese of Australia, and accordingly, in 1847, directed that it should be divided into four dioceses ; and thereupon erected the Metropolitan See of Sydney, and the three diocesan Sees of Newcastle, Adelaide, and Melbourne, and at the sarae tirae, the diocesan Sees of Tasma nia and New Zealand, the five last being sufiragans of the Metropolitan See of Sydney. This increase in the nuraber of Bishops of the Church of England in New South Wales was accompanied by an increase in the number of Roraan Catholic Bishops, and her Majesty's Secretary of State for the Colonies was called upon to lay down more precise rules, as to the mode in which the Roman Catholic Prelates were to be recognised by the Colonial Authorities. The Me tropolitan Bishop of Sydney was directed to take pre cedence of the Roman Catholic Archbishop, as being * See Appendix B. I See Appendix C, j See Appendix D, 42 COLONIAL LAW OFFICERS, of equal rank, although bearing a different title, and the Bishops of the Church of England* were to take precedence of the Roman Catholic Bishops. The former were, of course, to bear the title of their Seesf ; the latter to continue to be designated, in accordance withthe existing regulation, by their names, as "the Right Reverend Bishop ," and not by the titles of the Dioceses, which had been assigned to them by their OAvn Church, or else as " the Bishop of the Roman Catholic Church at ," &c. The latter was ruled to be the proper description in a deed, of which the provisions were to apply to the Bishop for the time being. Mr, BoAvyer states, that in the " case of the Bishopric of Melbourne, the Anglican Bishop eon- tended that the Catholic Diocesan had been guilty of a violation of the law by the assumption of the style of his See : but the law officers of the colony, to whom the question was referred by the Government, held that the Catholic Bishop might, without illegality, call himself Bishop of Melbourne." Now it is really of iraportance that a statement of this kind should be accurate, inasmuch as it is in tended to preclude discussion, and if accurate, would be conclusive. But such is not the fact. The ques tion which was referred to the Colonial law officers had regard to the penalty specified in the 24th clause of 10 Geo, 4, c. 7;, and they gave an opinion that, although the Act itself had been adopted by an act of the colonial legislature, the provisions of the 24th section of that Act, which relate to the penalty, were * It must be kept in mind that the Bishops of the Church of England in the colonics, have not the rank of Spiritual Peers of Parliament. f See Appendix E, MAURITIUS BISHOP, 43 limited to England and Ireland solely. Of the sound ness of this opinion there can be but little doubt ; but it stopped far short of the statement, that the law officers held that the Cathohc Bishop might, without illegality, call himself Bishop of Melbourne. That question does not appear from Governor Fitzroy's despatch to have been submitted to the Colonial law officers, but rather to be under reference at the pre sent time to the authorities at home,* It may therefore be safely said, that her Majesty's Governraent has carefully declined to recognise the territorial titles assuraed by .Roman Catholic Bishops frora Sees assigned to them by their Church within the Australian colonies. And so far frora no remon strance having been ever made, as Dr. Wiseman asserts, in consequence of the erection of the Papal Sees, and the assumption of the style and title of the Australian Bishops of the English Church, that the printed correspondence on the subject laid before the House of Commons in 1849 and in 1850 supplies very full evidence to the contrary.f Nor has her Majesty's Government observed any other rule in the island of Mauritius, on the occasion, in 1849, of the Pope withdrawing from Bishop Col lier his office of Vicar Apostolic, and his title of Bishop of Melev4 in partibus, and substituting in lieu of this, the title of Bishop of Port Louis or Mau ritius, J Her Majesty's Secretary of State for the Colonies, on this occasion, expressly ruled, that the Roman Catholic Prelates were not to be recognised by the local Government under the titles assigned to them by their own Church, * See Appendix F. \ See Appendixes F, and G, X See Appendix H, 44 THE ARCHBISHOP OF WESTMINSTER. " But," Mr. BoAvyer writes, " the fact of the Go vernment not recognising the provincial or diocesan, or territorial style of these colonial Bishops, is imma terial, for we do not ash the Government to recognise the style of Archbishop of Westrainster, or Bishop of Liverpool, this would hardly be a reasonable request to a Protestant Government, in a Protestant country, though of course we should rejoice if they were to do so." NoAv the answer to this reraark is obvious. Either it is laAvful for the Roraan Catholic Bishops to bear the titles, or it is not lawful. If it is lawful, her Majesty's Government are bound in justice to recognise them; if it is unlawful to bear thera, it is unlawful to have accepted thera : yet they have been both accepted and borne. After the gauntlet has thus been thrown doAva in the face of her Majesty's Governraent, it is idle to say, " Ave do not ash her Majesty's Government to re cognise the style of Archbishop of Westrainster, or Bishop of Liverpool." Yet her Majesty's subjects are publicly invited to recognise them, in an Appeal to the English People, on the part of Cardinal Wiseman him self ; in which his Eminence expressly discusses his newly assumed title, its decorousness, and the little less than neces.sity for its adoption. " London was a title inhibited by law ; Southwark was to forra a se parate See." Surely there is a vein of humour in the irony of this passage ; his Eminence pleads a necessity for taking Westminster on the ground that Southwark was not available, after his own Pastoral Letter had announced his approaching advent in his united cha racter of Archbishop of the Metropolitan City, and Administrator Apostolic of the separate See ! It has been already pointed out, that the title of an existing Bishopric of the Established Church ASSUMED AUTHORITY. 45 (Menevia, or St, David's) has been made free with in the Papal Brief. In accordance with this act of the Pope, Dr. Wiseman taunts the Church of England with the assertion that the restriction in the Emanci pation Act was not supposed at the time to give the slightest security to the Enghsh Church. "Speaking of it," he writes, " the Duke of Wellington remarked, that the clause Avas no security, but it would give satisfaction to the United Church of England and Ireland ; according to the laws of England the title of a Diocese belonged to the person appointed to it by his Majesty, but it was desirable that others appointed to it by an assumed authority should be discountenanced, and that was the reason Avhy the clause was intro duced." Surely the Duke did not allude to any thing very singular about the clause in question. No law, as such, gives security ; it is the raoral feeling of re spect for the law, and its consequent observance, not the enactments of a law, which gives security : and the Duke, as experience shows, was not very wide of the raark in anticipating that the laAv would be violated " by an assumed authority." The Duke, whose dis cernment is appealed to by Dr. W^iseraan, said, "the title of a Diocese belonged to the person appointed to it by his Majesty," If this be so, his Eminence raust admit, that the title of St. David's cannot be laAvfuUy borne by the nominee of the Holy See, even if it should be found practically impossible for the execu tive Government to enforce perfect obedience to the law, from the nature of its subject-matter. The questions which arise in regard to the Law of England will be more siraply solved, if the character of the recent act of the Pope can be precisely deter rained. It is contended by Roman Catholic writers, that the erection of the new Sees is a spiritual act on 46 ERECTION OF SEES, the part of his Holiness, and that tlie Roman Catho lic subjects of her Majesty who maintain the right of the Pope to erect such Sees, raaintain only the spi ritual supremacy of the Holy See, and are within the law. But it may be observed, in the first place, that, neither the erection of a See, nor the appointment of a Bishop is a spiritual act. The consecration of a Bishop, by the laying on of hands, is the spiritual act ; the appointraent is a temporal act, even if it should happen to be the act of an ecclesiastic. For instance, if the appointment were a spiritual act, in the sense in which the consecration is a spiritual act, it could not be performed by laymen ; yet Bishops in communion with the Holy See have, from time to tirae, been appointed freely by the Church at large, i. e. have been elected by the laity and clergy. Such, it may be said, was the rule of the Church until the tAvelfth century ; and even now the temporal Power in many Roraan Catholic states, in accordance with a direct or implied Concordat, nominates the Bishops of the land, and the Pope accepts such nomination, and by his confirmation of it, recognises its valid origin. If, on the other hand, the appointment is called spi ritual in another sense from that in Avhich the conse cration is so termed, it is a loose and improper sense, and only leads to confusion of thought. The appoint ment of a Bishop should rather be termed " an ecclesi astical act of a temporal nature ;" the consecration being, on the contrary, " an ecclesiastical act of a spi ritual nature." The appointment does not give the spiritual office, but merely designates the person for the spiritual office, which is conveyed to him at con secration. Thus it may be perfectly true, as Mr. Bowyer justly states, that Rome alone, i. e. the Pope alone, can give to the Bishops of that Church mission; APPOINTMENT OF BISHOPS. 47 but to give mission to a Bishop is a different thing from erecting' a See for that Bishop within the realm of an independent sovereign, or even from appointing a Bishop. So far is it from " the erection of Bishop rics being an integral and essential part of the exer cise of the Pope's spiritual authority," as Mr. Bowyer would contend, meaning thereby to exclude frora the act all participation of the temporal poAver of the State, that, on the contrary, the annals of every country in Europe furnish evidence adverse to his view.* If, on the other hand, it is merely meant to be asserted, that the spiritual sanction of the Holy See was thought in all countries which have continued in communion with the Pope to be essential in the erection of a Bishopric, this assertion may be within the mark ; but the exercise of the Pope's general spiritual authority in such a matter, in the way of confirming the act, does not exclude the exercise of the temporal authority of the individual sovereign, in whose territory the See happens to be erected. On the contrary, as will be seen, when the law of Europe coraes to be discussed, the teraporal authority of the prince was as essentially requisite in the erection of episcopal Sees, as the spiritual authority of the Pope. If this should prove to be the case in respect of the princes of Europe, who acknowledge the spiritual supreraacy of the Pope, on Avhat principle can the Pope claim to set aside the teraporal supreraacy of those sovereigns, who do not acknowledge his spiritual supreraacy l Again, if the erection of an episcopal See were held by the Law of England to be a purely spiritual -* See Chapter III. 48 POWER OF THE CROAVN. act, then there raight be sorae plausibility in the Pope turning against the law of the land the weapon which it may have itself furnished to him ; but by the LaAv of England, no episcopal See can be erected by the Crown Avithin her Majesty's realm of England except with the consent of the legislature*, in Avhich it is true the Bishops of the Established Church form part, but do not thereby impart to its acts a spiritual character. There is accordingly no argument fur nished by the law of the land to distinguish the realm of the Protestant Queen of England from that of a prince in comraunion with the See of Rorae, in a sense more favourable to the pretensions of the See of Rome. It raay consequently happen, that the tem poral, and not the spiritual, supremacy of the Crown of England, is impugned by those who would carry into execution the will of the Pope in erecting Bishops' Sees throughout the length and breadth of England, mero motu suo. It is, further, with respect to that teraporal supremacy that legal difficulties may arise * The Sees of Oxford, Gloucester, Peterborough, Bristol, and Chester, known as King Henry VlII.'s Bishoprics, were erected by letters patent of the Crown, pursuant to an Act of Parliament 3 1 Henry 8, c. 9., authorising the King's Highness to erect Sees and nominate Bishops by letters patent under the Great Seal of England, and to endow them with such possessions as his Highness should think convenient. This statute was repealed by 1 Philip and Mary, c. 8,, and has not been revived. The Sees of Ripon aud Manchester were erected by order of the Queen in Council, pur suant to the provisions of 6 & 7 William 4. c. 77., and 10 & 11 Vict, c, 108., authorising her Majesty in Council to carry into efiect the recommendations of the Ecclesiastical Commissioners. The necessity of an Act of Parliament in the case of new Sees in England, as distinguished from Sees in the colonies, or in British settlements, arises from the fact that the erection of a new See ia England involves an interference with the established rights of an old See. THE EXECUTION OF THE BRIEF, 49 for her Majesty's loyal and faithful Roman Catholic subjects, from which they have been exempt under the previous condition of the English mission. For if it should be a correct vicAV of the laAV, that the Pope, as a foreign prelate or potentate, in erecting his new sees, has invaded the sovereignty of the Crown of England, such subjects of her Majesty as seek to put the Avrit of the Pope into use and execution will thereby risk to raaintain his temporal superiority and pre-eminence ; and thus the Roraan Catholic peers and merabers of the House of Coraraons, who have taken the oath embodied in the Relief Act, Avhereby they deny that the Pope of Rome, or any other foreign prince, prelate, person, state, or potentate, hath, or ought to have any temporal or civil jurisdiction, power, superiority, or pre-eminence, directly or in directly, within this realm, may find themselves ensnared. A further point remains to be considered in refer ence to the publication and execution of the Brief itself. It would seem that, on the occasion of the enthronement of Cardinal Wiseman, the letter of the Pope Avas read aloud in a public assembly for religious worship of the Roraan Catholic communion with open doors. It has been further put into execution by the Archbishop and several of the Bishops assuraing the titles of the new sees, and issuing pastoral and other letters in the naraes of the Archbishop of Westrainster, the Bishops of Hexham, Birminghara, &c. Now the statute 13 Eliz, cap, 2, intituled " An Act against the bringing in and putting in execution of bulls, writings, or instruments, and other sujoerstitious things from the see of Rorae," having in its preamble recited that " raany persons minding to bring this realm and the temporal Crown thereof (being in very E 50 HIGH TREASON. deed of itself raost free) into the thraldom and sub jection of that foreign, usurped, and unlawful juris diction, pre-eminence, and authority claimed by the said see of Rome, have lately procured and obtained to themselves from the said Bishop of Rome, and his said see, divers Bulls and writings," enacted, by the third section, " That if any person shall obtain or get from the said Bishop of Rorae, or any of his suc cessors, or see of Rome, any manner of Bull, Avriting, or instrument, written or printed, containing any thing, matter, or cause whatsoever, or shall publish, or by any ways or means put in ure (use) any such Bull, writing, or instrument, that then all and every such act and acts, offence and offences shall be deemed and adjudged by the authority of this Act to be high treason, and the offender or offenders therein, their procurers, abettors, and counsellers to the fact and coramitting of the said offence shall be deemed and adjudged high traitors to the Queen and the realm, and being lawfully indicted and attainted according to the course of the laAvs of this reaira, shall suffer pains of death, and also lose and forfeit all their lands, teneraents, hereditaraents, goods, and chattels, as in cases of high treason by the laws of this realm ought to be lost and forfeited." The statute then proceeds, in the fourth and fifth sections, to enact " That all aiders, comforters, and maintainers of the said offenders, shall incur the pains and penalties of Prcemunire, and that the con cealers of a Papal Bull, writing, or instrument shall incur the penalty of misprision of high treason." It further attaches the penalties of Praemunire to a variety of secondary offences specified in the seventh section. Now the 9 & 10 Vict, cap, 59. repeals the 13 Eliz. cap, 2, "50./ar only as the same imposes the EXISTING STATE OF THE LAW, 51 penalties or punishments therein mentioned, but it is hereby declared that nothing in this enactment con tained shall authorise or render it laAvful for any per son or persons to import, bring in, or put in execution within this realm, any such Bulls, Avritings, or instru ments, and that, in all respects, save as to the said penalties or punishments, the law shall continue the same as if this enactment had not been made." The penalties and punishments of 13 Eliz. are thus removed, but the law is declared to continue the same. In regard to the minor offences specified in the 4th, 5th, and 7th sections, there being no express words in the statute defining their character by terms Avell known to the law, e. g. misdemeanour, felony, or otherwise, they cease to be legal offences with the abolition of the penalties which alone implied their prohibition. If, however, the law had said that such acts should be a high misderaeanour, and should be punished with transportation beyond the seas for the space of fourteen years, or otherwise, the abolition of the specific penalty Avould still have left untouched the legal character of the acts, which would have re mained a misderaeanour, and been punishable as such, according to the Common Law, with fine and im prisonment. So likewise Avith the raajor offence in the 3rd section, the statute defined the legal character of that offence in terras well known to the law, inde pendently of the penalty which it attached to it, when it -pronounced the act of iraporting and putting into execution within this realm any raanner of writing or instruraent whatever frora the Bishop of Rorae to be High Treason. As, therefore, the law continues the same in all respects, save as to the penalties, the legal character of the act remains un altered, although the penalty under the statute maybe i; 2 52 STATUTE OF TREASONS. remitted, and the offence be only punishable under the general Statute of Treasons* (25 Edw. Ill- s. 5. c, 2,), But as this is a question of constructive repeal, it may be open to argument to what extent it operates, until the judgraent of a court of competent jurisdiction shall conclude the question. Thus rauch, hoAvever, may be asserted, that if the putting into execution a Papal Bull is still an offence under 13 Ehz,, it can only be the statutory offence of High Treason, as there is no express prohibition in the statute, which would leave it a misdemeanour at Comraon Law after the penalties had been repealed. Yet it is admitted by all parties that the statute still prohibits the in- troductfon of Bulls and other Papal instruments: the prohibition, therefore, must be implied in the descrip tion of the offence, and the prohibition reraains, he- cause there is nothing in the 9 & 10 Vict, c, 59,, which has changed the legal character of the act ; in other words, the offence is crimen lessee Majestatis coronce, the highest civil crime Avhich a subject of the CroAvn can possibly commit. Such an offence is a breach of the duty of allegiance which binds every subject of the Queen to be true and faithful to her. f * The statute 7 Anne c. 21. which makes it high treason to slay any Lord of Session, or to counterfeit the great seal of Scotland, simply declares that such offence " shall be construed, adjudged, and taken to be high treason." It cannot be reasonably contended, that this statute is not fully operative by reason of no express penalty being recited after the words, which mark the offence with a specific legal character. f It is a great satisfaction to the author to find, that his opinion as to the state of the law and its positive infringement is counte nanced by the eminent authority of Sir Edward Sugden, in his address to the county of Surrey, on December 17. 1850, The Ex- Lord Chancellor of Ireland does not appear to have expressly stated, on that occasion, his opinion of the precise legal character STATUTE OF PR./EMUNIRE, 53 Dr, Wiseman complains that old and long-dormant statutes should be Avakened up, and obsolete legislation should be turned against himself and his colleagues. But the Pope himself has awakened up a long-dor mant hierarchy, and has turned against England an obsolete code of law. Surely if the spectre of Popery once more stalks at large on the banks of the Thames, and casts the shadow of its gaunt form before it, if the Pope has disinterred what Avere believed to be dry bones, and they have come together at his bidding, and he has sought to breathe life into thera, shall Dr, Wiseraan with reason complain that the guar dians of the Temple of the LaAVS of England rouse themselves up to confront their ancient foe ? But the statute law has not been mute since the reign of Elizabeth ; it was heard to speak forth in clear and distinct tones in 1849, Avhen it expressly declared the laws of Queen Victoria to continue in this respect the same as those of Queen Elizabeth, It raay be a raore debateable point, Avhether the Statute of Praemunire would apply to a Brief of the character of that in question on the present occasion. If indeed it should be rightly held that the pro visions of the present Brief touch the sovereignty of the Queen of England and her Crown, although it may not touch its regality (i, e, quoad regalia), or that they touch her realm, in the sense of 16 Richard IL c. 5., then Dr. Wiseman and his coadjutors will have made themselves subject to the penalty of Praemunire. In Cardinal Wolsey's case before the Reformation, it was of the offence ; but whatever may be, under the circumstances, the legal punishment of publishing and putting into execution the Papal Brief, it is difficult to avoid the conclusion that the offence is still such in its legal character, as it is declared to be by the statute of Queen Elizabeth. WOLSEY S CASE. held by the Judges of the Court of Queen's Bench, that the obtaining a Papal Bull from Clement VII. granting to him the dignity and jurisdiction of Legate; a Latere, and which Bull was publicly read in West minster, and the exercising jurisdiction under it, was a conterapt of the King and his Crown and contrary. to the statute. Wolsey was accordingly convicted; Subsequently to the Reformation, we have the weU- known case of Robert Lalor*, who was indicted for exercising jurisdiction as Vicar-General of the Apo stolic See in Ireland, by virtue of a Bull or Brief procured frora Rorae, and which Bull was said to touch the King's Crown, and Royal dignity. It appeared that Lalor had exercised Ecclesiastical Jurisdiction as Vicar-General, and done various acts pertaining to Episcopal Jurisdiction, within the Dioceses of Dublin, Kildare, and Ferns, which acts were said to be against the King, his CroAvn, and Royal dignity, in contempt of his Majesty and disherison of the Crown and con trary to the statute, Lalor pleaded not guilty to the charge, and was tried before a jury of the city of Dublin. He was convicted of having accepted his office by virtue of a Papal Bull, of having styled and entitled himself Vicar- Apostolic of the Dioceses of Dublin, Kildare, and Ferns, and of having issued letters of institution, dispensations for matrimony, sentences of divorce, &c., thereby usurping and ex ercising Episcopal Jurisdiction, and he was sentenced according to the form of " the Statute of Pr£emunire." Here then is an instance of a laAV made by the King, Lords, and Coraraons of the reaira, when England Avas in communion with the See of Rome, being held to apply to a state of things subsequent * 2 Howell's State Trials, p. 555., also Sir John Davies' Reports, p, 82. lalor's case. 55 to the Reformation, the indictment having been in tentionally framed by the laAv officers of the CroAvn upon the older statute of Richard II, rather than upon the more recent one of Elizabeth. With this precedent by way of warning, it would be an act of questionable discretion for Cardinal Wiseman to pro ceed to put into execution the canon law within the realm of England, and to govern eight English coun ties and the islands adjacent as Ordinary thereof.* Lalor contended, in his defence, that he had exercised his office in foro conscientice, not in foro judicii ; but his plea was overruled by the Chief Justice on the ground that he exercised jurisdiction, as manifested by the nature of his acts, in foro judicii. It is difficult to conceive how a foreign laAV, such as the canon law of Rome, can be put into execution in the present day with any other legal result than that which at tended its exercise in the fourth year of the reign of King James I. (anno 1607.) The legal inference from this very important judg ment seeras to be that the statutes of the realm which were enacted Avith the object of restraining the encroachments of the Papal power upon the sove reignty of the English CroAvn before the Reformation, were held to be still applicable to restrain any analo gous attempts of the same power subsequently to the * Dr, Richard Smith, the second Vicar- Apostolic in England, on his arrival in London, assumed the title of Ordi'nary of England and Scotland, which led to a proclamation on the part of the king's government, on llth December 1628, for his apprehension. This was foUowed by a second proclamation, on 24th March 1629, with an offer of one hundred pounds reward to any person who should discover his place of concealment. He thereupon fled into France and contrived to exercise his functions in England by his Grand Vicar. — Butler's Historical Memoirs of the English Catholics, vol. ii. p. 305. Cf. Appendixp. xlviii. £ 4 56 LAW SINCE THE REFORMATION. Reformation, If this should still be held to be sound law, then neither the Toleration Act of George III. nor the Emancipation Act* of George IV. have con ceded to the See of Rome any authority, which it was restricted frora exercising before the Reformation, The importance of this position of law will be more apparent in the following chapter. * Cardinal Wiseman, in discussing the provisions of the Act of Emancipation in his appeal, p. 16., makes a singular statement as to an important matter of fact. Having concluded the inference of law to be this, that the titles of the new Bishops are not against any law, so long as they are not the actual titles held by the Anglican Hierarchy, his Eminence proceeds to say, that, " all these conditions having been exactly observed in the late erection of the Catholic Hierarchy, this is perfectly legal, perfectly lawful, and unassailable by our present law.'' The authority of Dr. Wiseman himself can hardly avail in this matter against the authority of the Press, of the Congregation of the Propaganda, which declares the title of St. David's to be appropriated to one of the new Bishops. 57 CHAP. IIL We may now proceed to consider, how far the act of the Pope, in erecting episcopal Sees Avithin the realm of England without the consent of the sovereign of that realm, is a departure frora established laAV, and violates the sovereignty of the Crown of England. And here it may be convenient at the outset to re raove an objection which has been raised by Mr. BoAvyer, and adopted by Dr. Wiseraan, that the Crown of England has barred its right of remon strance and its claira to redress against the See of Rorae, by having itself, in two instances, abandoned the received rules of European law in pari materia, and so far, not coraing into court with clean hands, raust submit to be nonsuited. Accordingly it is said by Dr. Wiseman, that the Crown of England has erected " a Bishopric of Jerusalem, assigning to it a Diocese, in which the three great Patriarchates of Antioch, Jerusalem, and Alexandria were mashed into one See ; " and Mr, Bowyer has adopted the same view in stating that " the Crown of England has created a Bishopric in parts beyond the sea, where her Majesty's Avrit runneth not, to wit, at Jerusalem." After discussing the details of the appointment of Dr. Alexander, Mr. Bowyer concludes, " that the case of the Anglican Bishopric of Jerusalem is exactly in point, and it establishes, that the Legislature and the Crown of England hold, that there is nothing unlaw- 58 BISHOP ALEXANDER. ful, or in any respect wrong, in the act of erect'ing a Bishopric, and appointing a Bishop, and assigning to hira a Diocese in a foreign country, Avithout the con sent of the Government of that country." Now if the facts upon which this reasoning is based, Avere correctly set forth by Mr. Bowyer, there would be some weight in the arguraent in the way of what loo-icians terra an argumentum ad verecundiam ; but it happens that both Mr, Bowyer and Dr. Wise man have been misled by incorrect information, or have gone astray in the absence of correct data. Mr, Bowyer says, " the plain honest question is this — Did or did not the Crown constitute and erect a Bishop's See and Bishopric in foreign parts at Jerusalem ?" The issue being thus concisely raised, the answer to Mr, Bowyer's question is not far to seek. The Crown of England has not constituted or erected a Bishop's See, or Bishopric, at Jerusalem. If Mr. Bowyer had only had recourse to the authorised sources of inforraation, he would not have made so great a mistake as to confound the proceedings under 5 Vict, c, 6, Avith those usual in the erection of epis copal Sees by the Crown of England, Dr. Alexander was raerely consecrated to the office of a Bishop by virtue of a License* frora the Crown, granted to the Archbishop of Canterbury pursuant to 5 Vict. c. 6., which provided that " such Bishop or Bishops so consecrated may exercise within such limits as may from tirae to time be assigned for that purpose in such foreign countries by us, spiritual jurisdiction over the Ministers of British Congregations of the United Church of England and Ireland, and over such other Protestant * See Appendix, p, Ixxxix, JERUSALEM NOT A BISHOP'S SEE. 59 congregations as may be desirous of placing themselves under his or their authority." Dr, Alexander accord ingly went to Jerusalem invested with the episcopal office, and empowered by the Crown of England to ex ercise spiritual authority over British congregations. But there was not any See or local Bishopric in his case any raore than in the case of the Roman Catholic Bishops in partibus, to whom, in their superadded cha racter of Vicars Apostolic, Dr. Alexander bore some reserablance. He had been consecrated " Bishop of the United Church of England and Ireland in Jeru salem." This was not the title of a See, but the de scription of his Office, He was not addressed by the Crown of England as the Bishop of Jerusalem, in like manner as the colonial Bishops are addressed by the titles of their Sees, but he was addressed as the Right Rev. Dr. Alexander, Again, Dr, Alexander was only empowered to exercise sprnVwaZ jurisdiction in foro conscientice over certain congregations ; he had not Avhat is properly termed ecclesiastical jurisdiction in foro externo, such as the Bishop of a See may ex ercise : and although permitted to superintend other Protestant congregations than British, it is well known that the King of Prussia, whose subjects were here contemplated, was a consenting party to this arrangement. But it is said by Mr, Bowyer, that the Bishop w-as to receive into his Church Jewish and Gentile converts, at least that it is so alleged in " an authorised stateraent of the proceedings," Who raay be responsible for this statement does not appear ; but thus much is certain, that the CroAvn of England is not bound by the statement. On the contrary, the Crown took especial care to communicate to the Ottoman Porte, through its envoy at Constantinople, that Bishop Alexander went to S}T-ia under strict 60 BISHOP OF GIBRALTAR. injunctions not to raeddle with the religious concerns either of the Mahoramedan or of the Christian sub jects of the Porte, and that he was not to attempt to make proselytes to the Church of England from either of those classes. We raay consequently conclude, that the case of the Anglican Bishop in Jerusalera is not at all in point ; for even if the consent of the King of Abyssinia has not been asked, upon which Dr. Wiseman lays great stress, it would still not be in point, for no See has been erected AAdthin the territory of the said King, nor is even any spm^wa^ jurisdiction over his subjects likely to be exercised, since Dr. Wiseman himself states, that there is not a single Protestant congre gation in Abyssinia, " Under the same statute," continues Dr, Wiseman, " the Bishop of Gibraltar was named. His See was in a British territory ; but its jurisdiction extended OA^er Malta, where there was a Catholic Archbishop. forraally recognised by our Government as Bishop of Malta, and over Italy." It does not appear clear from the context Avhether the Cardinal in this passage alludes to the Papal governraent or the British government, when he speaks of the recognition of the Roman Catholic Bishop of Malta. However, we may assume that he speaks of the British government. To the same effect Mr. BoAvyer writes, " under that same statute the Crown has erected another Bishopric, de riving its title from a place Avithin her Majesty's dominions, but invested Avith pastoral functions more extensive than that title imports, I mean the Anglican Bishopric of Gibraltar. We have to con sider, not words, but things ; not form, but substance. Now it cannot be denied that the Anglican Bishop of Gibraltar has committed to him, by his Church and SEE OP GIBRALTAR, 61 the Government of this country, the pastoral epis copal care of all Protestants, whether converts or otherwise, in communion with that Church, or who may place theraselves under his authority, not only in Gibraltar and Malta, but also in Italy." It is rauch to be regretted that mistakes of this kind should be raade by writers in the position of Mr. Bowyer and Dr. Wiseman, and it is painful to have to correct such writers so repeatedly in matters of fact, which a little ordinary care, such most assuredly as their readers were entitled to expect at their hands, would have enabled them to set forth with accuracy. The statute alluded to by both these Avriters, namely 5 Vict, c, 6., in no way applied to the Bishopric of Gibraltar. The CroAvn, by virtue of its prerogative, erected, by Letters Patent *, the Church of the Holy Trinity, Avithin the town of Gibraltar, into a Cathedral Church and Bishop's See, precisely as it has erected various episcopal Sees in other British settlements and colonies; and it ordained that henceforth the town of Gibraltar should be a city, and be called the City of Gibraltar. It then, by the same Letters Pa tent, empowered the Bishop to exercise jurisdiction, spiritual and ecclesiastical, within the said Cathedral Church of the Holy Trinity, and throughout the said Diocese of Gibraltar, and also within the " Churches, Chapels, and other places aforesaid in the said island of Malta and its dependencies, according to the eccle siastical laws now in force in England." Not a word is said in the Letters Patent concerning Italy or Bome, nor is the Bishop of Gibraltar empowered to exercise ecclesiastical jurisdiction in any place out of the Queen's dominions. Even in Malta his jurisdiction is -* See Appendix, p. xci. 62 EPISCOPAL FUNCTIONS, confined to the Churches and Chapels, and other places, i. e. ejusdem generis ; and he is not to visit ecclesiastically the religious establishments of the Roman Catholics in that island. It may be perfectly true, however, that Dr, Toralinson has exercised episcopal functions under the very walls of Rome, though not, as Mr, Bowyer says, " in the Holy City ;" but to exercise spiritual functions as a Bishop is one thing, to exercise ecclesiastical jurisdiction as a Bishop is another. The Bishop of London, for in stance, has exercised his episcopal functions virtute ordinis repeatedly both in France and in Belgium; but he has never attempted to exercise ecclesiastical jurisdiction in either country. In a similar manner, the Roman Catholic Bishops in partibus resident in England have exercised episcopal functions virtute ordinis for tAVO centuries at least, but have not exercised ecclesiastical jurisdiction as Bishops. In a similar manner the Bishop of Gibraltar has exercised a spiritual superintendence virtute ordinis over the ministers of various British congregations resident in Italy, who have been instructed to respect his spi ritual authority, provided his injunctions did not re quire any disrespect to the laws, customs, and opinions of the country in which such rainisters exercise their clerical duties. Dr. Wiseraan therefore is in error when he classes the Bishop of Gibraltar with the Anglican Bishop in Jerusalem, as persons "sent under the sarae statute, not only to British subjects, but to such other Protestant congregations as raay be de sirous of placing themselves under his or their authority," So that the argument which is built by his Eminence upon this assumption falls to the ground : "If the Queen of England, as head of the English Church, oould send Bishops into Abyssinia and Italy, EPISCOPAL JURISDICTION, 63 surely Catholics had good right to suppose that no less would be perraitted to them, without censure or rebuke." Mutuality is doubtless a fundamental principle of the Law of Nations, but in this case no less has long been permitted to the Roraan Catholics in England, under the systera of Vicars-Apostolic. It is to be lamented that Dr. Wiseraan and his colleagues, at whose earnest solicitation the Brief is stated to have been issued, should have led the Pope to suppose, erroneously, that the CroAvn of England had established a precedent against itself by infringing the sove reignty of the Holy See in its OAvn dominions, raore especially as there is the forraal clause toAvards the conclusion of the Brief, providing that it shall never be impugned, " de subreptionis et obreptionis vitio." * In other words, the Brief is to be valid and observed inviolably, although the Pope may himself have been led, by a misrepresentation of facts, either in the way of a suggestio falsi, or a suppressio veri, to promulgate an ordinance, which violates the law of the land, where it is to be executed ! This consideration naturally leads us to the inquiry, before we examine the substance of the Brief itself, as to the form of proceeding adopted by the Holy See on this occasion. The form in which the Letters Apostolic are conceived is almost identical Avith that adopted by Pope Pius VII. in the Brief of excora- raunication against the Emperor Napoleon (10 June 1809), with this exception, that there is no special clause relating to their publication f, but only the * See notes to the Brief, in the Appendix, p, xxii. •f As the letters of excommunication against Napoleon could not be safely published in France, it was specially and expressly pro vided that their publication at certain places in Rome should give them the force of law. 64 BISHOP OF POITIERS. usual provision, that a notarial copy, certified by the seal of an ecclesiastical dignitary, shall have as full credit as the original instruraent. The act of publication, and the raode of pubhshing the Brief, has accordingly been left free to Cardinal Wiseraan, who seeras to have first promulgated it by his Pastoral Letter, and subsequently to have author ised its raore formal publication on the occasion of his own enthronisation. If the Brief itself has thus been published, there can be no doubt that the law of the land has been violated by the Cardinal or his agent, although the Pope himself may have refrained, by his silence as to publication, from personally encroaching in this matter on the right of supreme superinten dence (jus supremcp inspectionis) over the realm, inherent in the Crown of England, as in every inde pendent Crown. There is no position of law so corapletely established with reference to the relations between the Holy See and the SoA'-ereign Princes of Europe, as that the Exequatur of the Crown, or the Royal Placet *, is requisite as an antecedent condition for the publication of a Papal Rescript within the territory of a Sovereign Prince, A comparatively recent instance of the mode of maintaining the Exe quatur in a neighbouring kingdom is to be found in M, Dupin's " Manuel du Droit Public Eccl&iastique Fran9ais," p, 68, The Bishop of Poitiers having or dered a Papal Brief to be read in all the Parish Churches of his Diocese without having obtained the previous assent of the Crown to its publication, Charles X. issued an ordinance, dated Dec, 23. 1820, to the effect that there was an abuse on the part of the Bishop, and that his mandate was suppressed; it appearing frora the statement of the Bishop himself, to have been an act of pure inadvertence on his part, * See Appendix, p. c. BULL, IN CCENA DOMINI. 65 without any intention of contravening the laAvs of the realm. The custom of the Placet has been so universally observed in every independent kingdora in Europe, where it has not been especially relaxed by the raunicipal law, that it has been held by writers of the highest note* to forra a part of those customs, the aggregate of Avhich make up the Law of Nations. The Exequatur has also been accounted to be so in timately and essentially connected with royal majesty, that no prince can abdicate or renounce it to the prejudice of his successor and the State.f The exercise, indeed, of the right maybe suspended on the part of the Crown, as is virtually the case at present in the dominions of the Emperor of Austria since the ordinance of last year, but the right can never be alienated from the Crown Avithout its abdi cating its territorial sovereignty. With respect, however, to the publication of the present Brief, the history of the Bull of Paul V., "In Coena Domini," is not without a moral. In that celebrated Bull, issued in 1567, and re-issued in 1568, the publication of which has been expressly forbidden by the State- authorities in almost every kingdom of Europe, there was a special provision, " Quod sola publicatio Roma? facta sufficiat," All the Christian Avoiid Avas, in fact, to obey it, Avithout any publication beyond that made in Rome ; but it was further enjoined that every year, on Holy Thursday, it should be read from the pulpit, * Cf. Van Espen de Promulgatione Legum Ecclesiasticorum, part II. ch. 1 , •j- Cf. Schram, Institutiones Juris Ecclesiastici Germanic!, § 136. ; Rechberger, Enchiridion Juris Ecclesiastici Austriaci, § 272, These authors amongst others are quoted in the Report of the Select Committee of the House of Commons, on the Regulations of Roman Catholic Subjects in Foreign States, 25th June, 1816. F 66 THE LETTERS APOSTOLIC. in all parishes, to the people*, and copies of it should be affixed to the doors of the Churches. We have therefore in this Bull a forraal instance of the mode of pubhcation, as enjoined to be adopted in a foreign country Avhere the law of the land did not allow the free publication of Papal Rescripts ; and in accordance with that received mode, we find that the Brief of Pope Pius IX. has been read in England to the peo ple frora the pulpit of the Roraan Catholic church of St. George's, Southwark. So rauch for the open pub lication of it to the subjects of her Majesty within her realm of England. Let us noAv proceed to consider the subject-matter of the Brief, for, although the Pope himself may have forraally respected the established practice, and not have in words direcsted his Letters to be published within the realm of an independent Queen without her consent, or rather against her expressed will, as re corded araongst the written LaAvs of her realm, yet the substance of his Letters may involve in their opera tion a departure from established practice, and in that respect violate the soA'ereign rights of the Imperial Ci'own of England. Now it is patent on the face of the Letters, that the Pope has erected one archiepis copal and twelve episcopal Sees in the realm of her Majesty Queen Victoria, and has parcelled out the entirety of her reaira into thirteen districts, assigning to each Bishop a portion of the Queen's territory as subject to his jurisdiction. The instrument could not have been externally more coraplete, if the Queen of England had placed her reaira at the disposal of the Holy See for all ecclesiastical purposes, nor could the Pope have dealt with his own territory in a more free * Cf. Giannone, Storia di Napoli, lib. xxxiii.ch. 4. and 5.,|in which the Reginm Placitum is '^^s-^ fuUy discussed, Appendix, p. ciii. ROME, A FOREIGN POWER, 67 and absolute manner. But if there be any one principle of law which has received the sanction of that high usage and practice which constitutes it a binding obli gation on all the powers of Christendora, it is this, that the Pope cannot set up the See of a Bishop within the territory of an independent prince without his con sent. Comraon sense suggests, that none other than the sovereign power of the land can give a Bishop a Seat Avithin the land. The Pope may give a Bishop mission, i. e. may authorise hira to go forth as the spiritual ambassador of the Holy See, but that the Pope should establish a territorial Seat for his Bishop in the reaira of a Sovereign PoAver Avithout its consent, would be to usurp an attribute of local sovereignty, and to take possession of the land for ecclesiastical purposes. For it raatters not that the possession is only forraal and figurative, for such is also, for the raost part, the character of civil occupation. Words are for such purposes taken to represent things. But the Pope has not been content raerely to declare his will to erect Sees, he has gone further. He has sent his subject, a Prince qf his Court, to take effective possession of his See, and to execute such acts as serve for external signs to raark his ecclesiastical occupation of the land. All that is now required to establish an irrefragable title is, that the Sovereign of the Land should acquiesce in the settlement of the Cardinal, It must not be lost sight of, that the authority which has issued the decree upon which her Majesty's subjects are encouraged to act, is a. foreign authority. It is a foreign voice which speaks in the Brief: there is a foreign name prefixed "to it, which holds a recog nised position araongst the sovereign Powers of Eu rope ; the edict itself is dated from a foreign capital, F 2 68 DIPLOMATIC INTERCOURSE WITH ROME, and it is subscribed by the rainister of a foreign Power. It is idle to say that England ignores diplo matically that Power. True it may be that England has held no regular diplomatic intercourse with the Holy See, but England Avas a party to the Treaty of Vienna, and therein recognised, by the 103rd Article, the Holy See as one of the Sovereign Powers of Europe ; and the absence of diplomatic intercourse cannot affect the question. Denmark, for instance, has no regular diploraatic intercourse with the king dora of the Two Sicilies. Several of the sovereign princes of Europe have no diploraatic agents at the Ottoman Porte ; and Rorae herself has no diplomatic relations with Sweden, or Saxony, or Denmark, &c.*; but these Powers do not thereby 'Ignore one another, or cease to have the reciprocal rights and duties to wards one another, which attach to thera in common with the Other merabers of the great European Fa mily of Nations, by the Coramon LaAV. It is only Avithin the last twenty years that the Ottoman Porte has abandoned its objection to send regular diplo matic agents to the courts of the great European Powers. But the Ottoman Porte was not theretofore ignored either by Prince or Pontiff. This circum stance then cannot derogate from the mutual rights and obligations of Sovereign Powers as such ; they can only be affected by sorae special practice, which may have established an exceptional case. Such a special practice did exist at one time in regard to Turkey herself, and her dependencies, the Barbary powers ; but the latter states liave almost disappeared from the catalogue of nations, and Turkey is every * It is assumed that consuls are not diplomatic agents, otherwise England might be said to have maintained diplomatic intercourse with Rome for many years. PRACTICE OF EUROPE. 69 day assimilating her practice to the eustora of Eu rope. So also, in regard to the Holy See, it cannot be denied that a special practice has obtained in Europe with regard to its relations with the various Sovereign PoAvers growing out of the coraplex cha racter of the Holy See, and the union of ecclesiastical with civil poAver in the person of the Roman Pontiff; but that practice is as well defined as any other portion of the public LaAV of Europe, and the Holy See can claim no privilege within the dominions of a foreign Power or in relation to his subjects, Avhich does not rest either upon treaty or usage. If this Avere not the case, then the Roman Pontiff would be Lord Paramount over all temporal Powers. That the Roman Pontiff, however, is not exempt from the general law, raay be gathered from the annals of Europe, which supply us with a host of conventions and diplomatic negotiations between the Holy See and the Great Powers, in raatters where the sove reignty of the latter barred the free ecclesiastical action of the Holy See. These treaties and negotia tions serve as a sort of text-book for this particular branch of the Law of Nations ; and Avhere this text book is confirmed by usage, there the Holy See raust be expected to conform, if it does not Avish to place itself out of the pale of the law. Now the text law, so to speak, as to thg erection of Episcopal Sees and the creation of Bishops in countries in communion with the See of Rome, is fully set forth by Thomassinus in his Vetus et Nova Ecclesice Disci- plina, pt. I, 1. i. c, 54 — 58, It appears, as an historical fact, that during the five first centuries of the Christian era, the Royal authority took no part in the creation of Bishoprics, neither Avas the Pope of Rome, as such, alloAved any right of supreme spiritual superintend- 70 ERECTION OF BISHOPS' SEES. ence in such raatters. Bishops were every where instituted by the various Metropolitans. But with the fifth century, Avhen Christianity had becorae the re ceived faith of the civihzed world, the rule became estabhshed, that no noAV Bishoprics could be made without the consent of the Metropolitan Bishop, the Synod of the Province, the Prince, and the Pope.* In illustration of this rule, Thomassinus gives a series of examples, and shows, in regard to almost every country of Europe, that the assent of the Prince Avas a prelirainary condition in the establishment of Bishops' Sees within his territory. To the same effect, Balsa- mon of Constantinople, Patriarch of Antioch, and so far representing the opinions of the Eastern Church, in his Commentary on the 60th Canon of the Council of Carthage, writes, towards the conclusion of the 1 2th century f : " You must know that it is a canonical observance, that the districts of the Bishops shall remain undisturbed ; but that new Bishops should be raade in Dioceses which are subject to other Bishops is not perraitted without the royal 'mandate, even if the Bishop in possession should consent a thousand times. For it has been synodically established, that not even a great Synod can make new Bishops without the royal permission. Other writers J might be cited to * " Novi nuUi, temporibus his medi® retatis sfficulo vi. vii. et viii., creabantur Episcopatus nisi de Metropolitani, Synodi Provincialis, Principis, et Papas consensu." — Thomassinus, p, i. 1. i, c. 55. f " Tu autem scias quod Episcoporum quidem regiones immotaa manere, ut canonicum, servatur. Fieri autem Episcopos de novo in parochiis, quae sunt aliis Episcopis subditas, sine regio mandate non permittitur, etiam si millies consenserit, qui eam habet, Epis copus. Synodice enim constitutum est, ut nee ipsa magna Synodus sine jussu regio posset novare Episcopos." Cf. Beveridge, Pan- dectae Canonum, tom. i. p. 592, X Petrus de Marca de Concordia Sacerdotii et Imperii, 1. iv. ; Baronii Annales, passim. SUPPRESSION OF A SEB. 71 the same effect, as the raatter is not one of general speculation, but of historical fact. On the other hand, it raay be said that the Pope has at tiraes created local, as distinguished from titular Bishops, mero motu suo, Avithout having previously obtained the consent of the Prince of the land. There are doubtless a few instances of this kind to be found, ehiefly in the North of Europe; but in these cases, the Legate of the Pope expressly claimed to act in the name, not only of the Pope, but of the Emperor, as Lord Paramount over the Princes of Northern Europe.* It may, however, be safely said, that in all the chief states of Europe, even in the most Catholic, if Catholic ism admits of degree, the consent of the Crown has been obtained as a preliminary raeasure ; and in the Papal Rescripts for the erection of Sees which are preserved in the BuUariura Romanum, it is generally specified, particularly in later tiraes, that it has taken place at the instance and deraand of the Sovereign of the land. But further than this, when the question of right has been raised on the part of the Crown, the Pope has consented to retrace his steps, and has cancelled his previous act. A reraarkable instance is to be found in Thomassinus, part i. 1. i. c. 57. s. 7. The Duke of Savoy had, through the favour and influence of the Eraperor Maximilian, obtained frora Pope Leo X,, in 1515, that the borough of Bresse should be made a city and the See of a Bishop, The diploma of the * " Adelbertus Hamburgensis et ipse Episcopus ac Legatus pari saltem vigore explicuit Legationem suam, qua Septentrionales omnes gentes complectebatur — frequens illud in ore habens, Duo- bus se dominis tantum obnoxium esse, Papje et Imperatori. Itaque fidentius quandoque excitavit Cathedras regibus haudquaquam assentientibus." — Baronii Annales, anno 1067, quoted by Thomas sinus, who adds, " Ea sane tempestate omnes iUi ad Boream Regcs Imperatorum potestati obnoxii quodammodo erant." r 4 72 PRACTICE IN ENGLAND, Pope to that effect had been already issued ; but on the expostulation of the French King it was re called towards the close of the year, expressly because the King of France had not assented to it, nor the Archbishop of Lyons, from Avhose Province the new Diocese was to be subducted. The same Pontiff, six years afterwards, Avas once raore induced to re-esta blish the suppressed Bishopric ; but since that was done without the consent of the King of France, who succeeded shortly afterwards in re-establishing his dominion over Bresse, the latter succeeded without difficulty in persuading Paul III. to extinguish the See. Nor has England been in any way an exception to the general rule. We learn frora the historian Bede*, that Pope Gregory arranged with the Archbishop of Aries to ordain the missionary Augustine to the office of Bishop, on the condition of his having been first received by the English nation ; and that it was Ethel bert, King of Kent, not the Roraan Pontiff, who as signed to Augustine, on his second coraing, as Bishop, the raetropolitan city of Canterbury as his See. On a similar principle we find one of the earliest kings of England, Edward the Elder, the immediate successor of King Alfred, erecting in a National Council five ncAv Sees, and Pope Formosus giving his subsequent confirmation to the King's Act. Again, in the reign of Williara the Norman, we find that the King's con sent was obtained by Archbishop Lanfranc to the establishment of three episcopal Sees, in Chester, Salisbury, and Chichester. Again, in the reign of the second William, Anselm, the successor of Lan franc, is described by a contemporary historian as * Historia Ecclesiastica Gentis Anglorum, lib, i. ch. 23. and 26. Cf. Godwin de PrEesulibus Anglias, vox Cantuarensis. THE PAPAL BULLS. 73 " knoAving that no new Bishopric could be instituted without the consent of the King, and the confirmation of the Pope*," and accordingly writing to Paschal IL, in reference to the division of Lincoln into two Sees, that the King and Bishops of England had consented to the measure. In a similar raanner it is stated by Matthew Paris, that King Henry I, converted the Abbey of Ely into a Bishop's See ; and MattheAv of Westminster recounts, that King Henry II. erected a See of Carlisle, and bestowed it upon his confessor. In both these cases the Pope's confirmation was no doubt required ; on the other hand, the King on no occasion abdicated his authority as territorial sove reign. Such then appears to have been the practice of Europe before the Reformation of the Church in Eng land, and the publication of the Decrees of Trent, It remains to be seen whether any other practices have grown up in Europe since the Reformation. Here indeed a distinction at once suggests itself be- tAveen states Avhich continue to acknowledge the ec clesiastical supremacy of the See of Rome, and states Avhich have protested against it, and renounced eccle siastical comraunion with that See. In the former case the relations of the Holy See are for the most part regulated by the ancient practice before the Re formation, in the absence of any special treaty-engage ments in the form of "Concordats;" but in no case has there been any departure from the ancient rules, as to the consent of the Crown being a requisite con dition for the erection of a Bishop's See. The BuUa rium Romanum supplies ample evidence, that the * " Anselmus, sciens prsEter Regium consensum et Romani Fontificis auctoritatem, novum Episcopatum nusquam rite institui posse, scribit, &c." — Eadmerus, Nov. Hist. ch. 4. 74 CONCORDATS AVITH ROME, consent, nay the request, of the Sovereign, is still a condition precedent to the erection of an episcopal See within his territory, and the factum of such consent is, for the most part, although not always, recorded in the body of the Brief itself. The Bulls, or Letters Apostolic, as the case may be, generally, run in the form of " precibus annuere volentes, tamque pio desiderio satisfacere ipsius Philippi Regis*," or " piis igitur ejusdem Reginse de Apostolica Sede optime meritte votis annuere opportunum in Domino censentesf," or to sorae similar purport, showing that the consent of the Crown is the foundation on which the Pope proceeds to deal Avith a foreign territory, and to assign a See within it to the newly created Bishop, It remains for us to consider how far the practice may have undergone a change with respect to those States which have renounced ecclesiastical communion with the Roraan See. These States raay be distributed into two classes — such as have entered into direct diplomatic relations with the See of Rome, and such as have held theraselves completely aloof. The for raer class again divide themselves into such as have treaties with the Holy See by way of Concordat, and such as have raade arrangements with the Pope by raeans of diplomatic negotiations. The kingdom of the Netherlands, as constituted bythe treaty of Vienna, supplies an instance, perhaps the only one, of a Con cordat betAveen a Protestant prince and the Holy See. The convention between King William I. and Pope * Bull of Paul IV., anno 1559, erecting various archiepiscopal and episcopal Sees in Belgium at the prayer of Philip II. of Spain. Bullarium, tom, iv. pars i. p. 360. t Bull of Pius VII., anno 1806, erecting an episcopal See in the city of Leghorn, at the prayer of Maria Louisa, Queen of He- truria. BuUarii Continuatio, tom, xiii. p. 64. THE NETHERLANDS CONCORDAT. 75 Leo XII, (June 18. 1827) remains recorded in the Collection of Marten's Trait^s * ; the foundation of it being the French Concordat of 1801, which con tinued in force for the southern provinces, and was extended by this convention to the northern pro vinces. In pursuance of this Concordat, Letters Apostolical sub plumbo were issued by the Pope on the 17th of August, 1827, incorporating the Concordat itself, and reciting that the Pope f , in concert with his Majesty King William, had resolved to erect three new Sees of Bishops ; to wit, Bruges, Amsterdam, and Bois le Due. This arrangement, however, was never carried into effect. The disruption of Belgium frora Holland supervened in 1830, and it has been held that the Concordat, by the change of circurastances consequent thereupon, has become null and void. The result is, that the Netherlands is still considered as a mission in partibus infidelium, under the superintendence of Vicars Apostolic ; and it is not unworthy of remark, that the Bishop in partibus designed by the Pope to reside at Amsterdam, as Vicar, has not as yet ven tured to take possession of the building assigned to him for a residence, in the presence of the difficulties raised in his way by the Protestant communions of Holland. In the other category of States which have made arrangements with the Holy See, not by way of treaty, but by raeans of diplomatic negotiations, stand Prussia * Nouveau Recueil, tom. vii. p. 242. f " Nos, collatis cum serenissimo rege Gulielmo consiliis, ad Catholicae religionis incrementum, atque ad animarum salutem, praeter quinque jam actu existentes, tres alias pro nunc episcopates Sedes restituere, vel de novo erigere, sicque universum Belgicum regnum in octo Dioceses dividere, totidemque inibi cathedrales ecclesias constabilire decrevimus." 76 PRUSSIAN NEGOTIATION. and Hanover. In both these cases the Holy See has issued Avhat is termed a Bull of Circumscription *, to which the subsequent sanction of the Crown has been given. The Prussian Bull of Circumscription (16th July, 1821) expressly refers to the co-operation of the King of Prussia, Avhilst the Hanoverian Bull of 26th of March, 1824, no less recites that the King of Hanover, George IV. f , had been previously con sulted by the Holy See in the matter. Amongst other provisions of these Bulls, the Crown is admitted to exercise a veto against a candidate for election into a vacant Bishopric, But the prehminary negotiations must not be overlooked, more especially those between Prussia and the Holy See, In the course of those negotiations it Avas hinted at, as a wish of the Pope, that there should be certain Bishop rics established in the Protestant provinces, e.g. at Magdeburg and Berlin or Potsdam, M, Niebuhr, the Prussian minister at the Court of Rome, at once objected to the proposal in the most decided manner, and it Avas accordingly abandoned by Cardinal Gon- salvi ; nor was it once attempted to be pressed in the written negotiations. It may also be observed, that the CroAvn abolished the See of Aix-la-Chapelle, Avhich had been erected by the French during their occupa tion of the west bank of the Rhine, and united the Archbishoprics of Gniesen and Posen into the See of a Primate, in both of which arrangeraents the Holy See acquiesced. The Pope further adopted in the * Cf. VoUstandige Sammlung alter altern und neuern Konkor- date, von Dr. E. Miinch, 2er Theil, Leipzig, 1831 ; Lehrbuch des Kirchen-Rechts, von F. Walther, Bonn, 1839. f " Ee propterea collata cum Serenissimo Georgio Quarto Reg* norum Magnas Britanniie et Hiberniae unitorum, necnon Hano- verise Rege, ac Brunsvicensi, et Lunebergensi Duce," DENMARK AND SWEDEN, 77 Bull this provision, to meet the necessity arising from the great extent of the Prussian territory, — namely, that the ordinary Bishops should have the aid of Bishops in partibus as suffragans ; a most anomalous arrangement, which was rendered necessary by the objection on the part of the CroA\m to any increase in the number of Sees. Apart from the Protestant states which have en tered into treaties or negotiations with the Holy See, stand those which have kept themselves aloof from Rome altogether in religious raatters. The forraer have been constrained, for the raost part, to make arrangements Avith the Pope by political considera tions, arising out of the circumstance of their having acquired accessions of territory by conquest or cession from Roman Catholic princes, and so far coming to rule over a Roman Catholic population. The latter, on the other hand, have either remained restricted to their ancient territorial limitations, or have extended their dominion without at the same time admitting under their sceptre a population with a foreign reli- ligious element. In the former cases, the Roraan Catholic population has received full ecclesiastical protection ; in the latter it has only been allowed religious toleration, and that too in very various degrees. In Denmark, for instance, where the Lu theran Church is established by the Lex Regia of 1665, the severe laws of King Christian V. have been considerably mitigated by more recent ordinances ; but the Roman Catholics enjoy only a permissive exercise of their religion, and their clergy have to seek ordination at the hands of a neighbouring Roman Catholic Bishop in partibus, Avho exercises, at Hilders- heira, the delegated authority of a Vicar Apostolic, In the duchies of Schleswig and Holstein, a more ex- 78 PRACTICE OF SAXONY. tended toleration exists ; but it varies Avith each town, and in no case exceeds raere religious toleration. In Sweden, the edict of toleration issued by Gustavus III,, in 1781, for the first tirae authorised the profession of the Roraan Catholic religion in that kingdora on the part of Swedish subjects. Three years afterAvards, Pope Pius VI. , with the consent of the Crown, erected a Roman Catholic parish in Stockholm, and delegated the spiritual superintendence of it to a Vicar Apos tolic, The Vicar is usually a Bishop in partibus, and is authorised by royal diploraa to exercise his func tions Avithin the realm of Sweden, subject to his con formity with the provisions of the edict of toleration. In Saxony, on the other hand, where there is the singular phenomenon of a Roraan Catholic king and a Lutheran people, no Prelate of episcopal rank in the Roman Catholic Church has existed since the Reforraation, until a comparatively recent period, when the King's Confessor, who is appointed to that office by the Crown, has, at the request of the Crown, of late been accustomed to receive the title of a Bishop in partibus, with the authority of Vicar Apos tolic. Formerly, indeed, the Bishop of Hildersheim appears to have had vicarial authority delegated to him from the Holy See, in respect of the Roman Catholics in Saxony, as well as in Denmark ; but his interference Avas formally repudiated by the King of Saxony, on the occasion of Pope Clement XIV- trans mitting through his hands the Brief " Dominus ac RedemptorNoster," for the suppression of the Society of Jesus, In Upper Lusatia the Chapter of the Cathedral church of Budissin, or Bautzen, is still Roraan Catholic, and the Dean, or Prasses (who is generally the sarae person Avith the King's Confessor, although not invariably so), exercises a spiritual BISHOPS IN PARTIBUS, 79 superintendence over the Roraan Catholics in that province. At times he has further exercised episcopal functions as a Bishop in partibus, but never in the character of a Saxon Bishop. It is said that Pope Gregory XVI., shortly after his accession to the Chair of St. Peter, was anxious to erect a Bishop's See at Meissen, as Pius VII. had been similarly desirous to re-establish monasteries in Saxony. The official answer in the latter case was, that the Pope could not do what he wished without the con sent of the Crown. In the former case there does not appear to be any written record of what transpired, any more than of the oral negotiations betAveen Car dinal Gonsalvi and M. Niebuhr, in regard to the overture to erect episcopal Sees in the Protestant districts of Prussia; but the fact raay not be gain sayed, that the plan, if conceived, Avas never brought to maturity, and forraally carried out by a Rescript of the Holy See ; or if matured and promulgated, has never been substantially put into execution Avithin the realm of Saxony.* Bishop Loch, the two Bishops Mauermann, and Bishop Dietrich, who haA'e succes sively filled the offices of Confessor of the King and Vicar Apostolic during the last quarter of a century, do not appear to have borne any other episcopal titles than those of Bishops in partibus, nor is there at pre sent any trace to be found in the Papal Red Book (Notizie) of a See of Meissen in Saxony. The result of these cases is to establish an uni formity of practice on the part of the Holy See in exer- * When the elector of Saxony, in 1697, espoused the Roman Catholic religion, the rights and privileges of his Lutheran subjects were guaranteed by him in the Diet; and he resigned, on behalf of the Crown, all power over the Lutheran Church and schools to his privy council, which is not responsible to him in tliese matters. 80 PRACTICE OF RUSSIA. cising its spiritual superintendence over the members of the Church of Rome resident in countries which do not acknowledge the ecclesiastical supremacy of that See. Russia has not as yet been noticed, as it does not come under the category of those states which have been hitherto considered. But Russia is a state which must not be left unnoticed in this inquiry, inasmuch as it holds no religious communion with the See of Rome, whilst it possesses a considerable Roman Cathohc population in its western provinces, and it has local Bishops of the Latin, as well as the Greek Rite. The Bullarium* exhibits a Brief issued by Pope Pius VL, under the Fisherman's Ring (15th April, 1783), and addressed to the Archbishop of Chalcedon, the Papal Nuncio at the Court of Stanislaus Augustus of Po land, and at that tirae on a diploraatic mission to the Court of St. Petersburg. By this Brief, the Pope erects the city of MohiloAV, and the chief church therein, into the See of an Archbishop, and directs the Nuncio to place a suitable person over the newly- erected Metropolitan Church, and to consecrate him; or if he should already possess the episcopal character, to deliver to hira the pallium, and adrainister the usual oath of fidelity to the Holy See, which is to be found in the Roman Pontifical. The Brief further instructs the Nuncio to consecrate a titular Bishop of Gadara, as coadjutor to the Archbishop. It might be sup posed, frora the official tenor of this document, that this proceeding of the Holy See was an act on its part, substantially as Avell formally, as derogatory to the sovereignty of the CroAvn of Russia, as the Brief of Pope Pius IX is derogatory to the sovereignty of the CroAvn * BuUarii Continuatio, tom. viii. p. 122. UNUSUAL PROCEDURE. 81 of England, " Every official document," writes Dr. Wiseman, " has its proper forms, and had those who blame the tenor of this taken any pains to examine those of Papal documents, they would have found nothing new or unusual in this." His Eminence is perfectly justified in this observation ; but he has omitted to take into consideration the form of pro cedure, as well as the form of the document itself It is not by reason of the document issued under the Fisherman's Ring being in an unusual form of Avords that the English nation coraplains, and the Prirae Minister of the Crown protests, but it is precisely be cause it is conceived in the usual form under circura stances of raost unusual procedure. Thus, in regard to the Brief of Pope Pius VI,, an ukase of the Empress Catherine II. had been previously published on the 17th January, 1782, erecting the city of Mohilow into the See of an Archbishop, and nominating a Russian subject to the newly erected archiepiscopal See, who Avas already exercising episcopal functions in Russia, as a Bishop in partibus, with the direct permission of the Empress herself, granted to him in 1773. By the same Ukase, the Empress had norainated a Canon of the archiepiscopal Church of Mohilow to aid the Archbishop as his Coadjutor, and announced that she had given orders for suitable measures to be taken to to procure his elevation to the Episcopacy, It Avas further, by the same Ukase, specially ordained, in accordance with the established laAv of Russia, that no Papal Bull or other writing should be made public in the Empire without having been previously sub mitted to, and sanctioned by, the Senate, The Empress accordingly directed a diplomatic communication to be made on the part of the Russian CroAvn to the Holy See, of the measures which the G 82 THE MUSCOVITE OATH. Crown had adopted ; and in reply. Pope Pius VI. in structed his Nuncio in Poland to proceed on a special mission to St, Petersburg, and to complete the arrange ments of the Empress, by delivering the palhum to the Archbishop, and consecrating his Coadjutor, So different altogether was the procedure observed on that occasion from that which has been practised by Pope Pius IX, It is worthy of remark, that the Brief of Pope Pius VI. directed the usual Pontifical oath * to be adrainistered to the Archbishop and his coadjutor, but the Empress objected to its being taken by her subjects. The Pope accordingly " condescended to substitute," to use the language of Cardinal An- tonelli, in the place of the ancient form of oath, a new forra, which was satisfactory to the Court of St, Peters burg, to be publicly repeated by the Archbishop and his Coadjutor in the presence of the Empress. This circumstance is Avorthy of note, not merely because it is an instance of the Holy See cancelling or dis pensing with a most important provision in a Brief which was at variance with the law of the country, within which its provisions were to take effect, but because it was the same form of oath Avhich was allowed by Pope Pius VI. to be substituted, in 1791, for the ordinary Pontifical oath theretofore taken by the Roman Catholic Bishops of Ireland at their con secration, and by the Archbishops on receiving the pallium. The Pontifical oath had caused much poli tical scandal in Ireland by the words " hcereticos per- sequar et impugnabo," and it was represented to the * "Recepto tamen prius nostro, et Romanaa Sedis nomine jura- mento, quod tarn in electi consecratione quam in pallii traditione ab omnibus noviter electis Archiepiscopis htec Apostolica Sedes re- cipere consuevit,'' > ESTABLISHMENT OF A PRECEDENT, 83 Pope that the maintenance of it might probably stand in the way of the Roman Catholic body ob taining religious toleration, which was granted to them in the course of that year by 31 Geo, 3, c, 32. The Pope accordingly assented to the prayer of the Irish Roman Catholic Bishops, and sanctioned an accommodation of the oath to the peculiar circura stances under which they were placed as British sub jects, upon the precedent furnished in the case of the Muscovite Archbishop of Mohilow. The Holy See has thus clearly and unequivocally been a party to the establishment of a precedent, in regard to the form of procedure to be observed in the erection of the See of a Roman Catholic Bishop within the territory of a sovereign not in ecclesiastical communion with Rome, from which the Crown of Eng land raayjustly claira, that it shall not depart.* The Sovereign of Russia further nominates to all vacant Bishoprics within his dorainions, and the Pope sends letters of institution. Poland is somewhat differently circumstanced from the other provinces of the Russian Empire. There were Concordats of early date between the kings of Poland and the Holy See ; and in like raanner as Prussia has more or less observed the proAdsions of the German Concordats in regard to Silesia, and of the Polish Concordats in regard to the duchy of Posen, as the basis of its existing relations with the See of Rome in reference to those provinces under the Bull of Circumscription of July 16. 1821, so the Empress Catharine, in taking possession of that portion of the Polish provinces which devolved to * The erection of the See of a Roman Catholic Bishop at Cher- son, within a very recent period, is a further confirmation of the same principle. G 2 84 USAGE OF POLAND. Russia, conformed to the usage of Poland, without, however, renewing forraally its treaty-engagements with the Holy See, But the usage of Poland had been remarkably in dependent; so that the Emperor continues to nominate the Roman Catholic Bishops, as Avas the custom of the kings of Poland, and the Pope used, through his Nuncio at WarsaAV, to send them institution. But the kingdom of Poland, as at present constituted, is not a Roman Catholic country, although the raajority of its population are Roraan Catholics. By the charter of 15th Nov. 1815, all forms of religious worship, without excepting even that of the Mahommedan Tatars established in Poland from tirae immemorial, Avere allowed to be fully and publicly followed and practised, AA'ithout any difference resulting therefrom in regard to civil and political rights ; and the minis ters of all religions were declared to be under the protection and superintendence of the laws, and of the government, Poland thus comes under the class of states Avhere the Roman Catholic religion is protected, and so far resembles Belgiura and France ; with this notable difference, hoAvever, that it is likcAvise superintended by the State, " Les ministres de toutes les cultes sont sous la protection et la surveillance des lois et du gouvernement." (Article XIII, de la Charte Con- stitutionelle du Royaurae de Pologne, a° 1815.) Of course the State does not interfere in matters Avhich are in their strict and proper sense spiritual; as, for instance, in cases of conscience, Avhich are re served and subraitted by the Bishops, under the Sacra mental Seal, to the Apostolic Penitentiary at Rome ; but all other communications between the Bishops and the See of Rorae are required to be transmitted through the hands of the Minister of Public Worship NEW DISTRIBUTION OF DIOCESES. 85 to the Imperial Embassy at Rorae, and so far are submitted in theory to the eye of the Emperor. * Russia therefore furnishes no exception to the practice Avhich has been observed by the See of Rome in regard to the Protestant States of Europe since the Reformation : on the contrary, it serves to confirm the rule; for the Holy See has bound itself raore openly in regard to Russia than any other State which possesses a National Church not in com munion with that of Rome, to respect the territorial sovereignty of the Crown in the matter of erecting Bishops' Sees. The practice in regard to England since the Reformation, as set forth in the Brief itself, may be considered to complete the last link in the chain of evidence. And here it may again be observed, that the Holy See exercises an authority which, as far as England is concerned, is essentially a foreign authority. It is an accident, though inseparable in the con siderations of law which attend the raatter of fact, that the Holy See is a sovereign power; but the argument would be precisely the same, as far as the exercise of foreign authority in the territory of an independent prince is concerned, if the Patriarch of Rorae were the subject of a foreign Sovereign, like the Patriarch of Constantinople happens to be. The temporal sovereignty of the foreign authority only * There is no Concordat between the Emperor of Russia and the Holy See, but a Bull of Circumscription, or rather of New Distri bution of the Dioceses of Poland, " Ex imposita," was issued by Pope Pius VII,, on June 30. 1818, with the consent of the Em peror, " curisque nostris mirifice obsecundante laudato Russorum Imperatore ac Poloniae rege, cujus egregiam etiam in nos volunta- tem probe jamdiu experti sumus." — BuUarii Continuatio, tom, xv. p. 61, A subsequent Brief was issued on Feb. 26. 1820, to assist the execution of the Bull. G 3 86 EXEQUATUR OF THE CROWN. affects the mode in which redress is to be obtained, namely, that it is to be sought directly at the hands of that authority itself; whereas in the other case, application must be made to the sovereign power to whora that foreign authority may be personally sub ject. If, for instance, the Patriarch of Constantinople were to issue his Letters Apostolical, and deal eccle siastically with the realm of England like the Pope has ventured to do, constituting seats for Greek Bishops in various parts of the realm, assigning to them ordinary jurisdiction over the entire territory and its adjacent islands, and in the plenitude of his Apostolic power, decreeing that the Common Law of his Church shall be observed throughout the kingdom of England, appointing subjects of the Queen to carry that law into execution Avithin her realm, Avithout the "Exequatur" of the Crown, AA'hose subjects they are, the Crown of England would doubtless have to seek redress against the usurped authority of the Patriarch of Constantinople at the hands of the sovereign whose subject he is. In other respects the cases would be parallel. The Patriarch of Constantinople, precisely like the Roman Pontiff, is not subject to the municipal laAV of England, It can not be maintained, however, for a moraent, that the CroAvn of England has no rights as against these foreign Patriarchs, or that they are under no obligation to respect the sovereignty of the Crown of England within the realm of England, in any matter which they shall choose to pronounce to be spiritual ; or, further, that the subjects of the CroAvn raay safely execute the ordinances of these foreign Patriarchs within the realm of England, although such ordinances import a violation of the municipal law. This position is not tenable, either in principle or LAW OF NATIONS. 87 practice. In such a matter speculative general prin ciples alone are not sufficient ; more raust be proved. It is not sufficient for either of these Patriarchs to assert, that the matter in Avhich they claira jurisdiction is spiritual, and within their exclusive competency, and soraething which- lies beyond the sovereignty of the Crown of England. In order to derogate frora the rights of sovereignty, which are paramount, it must be shown, that the clairas are conformable to usage and practice ; and it is clear from the historical survey just completed, that in the matter of erecting Sees of Bishops in foreign countries, as distinguished from the granting of Mission to Bishops, the usage and practice of Europe are adverse to the clairas of the Pope. It will not be inopportune here to cite a judgraent of Lord Stowell's, when it was endeavoured before hira, in a Court of the Law of Nations, to set aside the practice of Europe in the raatter of an enemy's tri bunal pretending to be authorised to exercise juris diction within the dominions of a neutral PoAver : — " It is for the very first time in the Avorld," he says, " that in the year 1799, an attempt is made to impose upon the Court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorised within the dominions of a neutral country. In my opinion, if it could be shewn that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient, that Avould not be enough ; more must be proved, it must be shown that it is conformable to the usage and practice of nations." A great part of the law of nations stands on no other foundation : it is introduced, indeed, by general principles ; but it travels with those general principles G 4 88 LORD stowell's judgment, only to a certain extent ; and if it stops there, you are not at liberty to go further, and to say, that mere general speculations would bear you out in a further progress. Thus, for instance, on raere general prin ciples it is lawful to destroy your eneray ; and mere general principles raake no great difference as to the manner by which this is to be effected ; but the con ventional law of raankind, which is evidenced in their practice, does raake a distinction, and allows some, and prohibits other modes of destruction ; and a belligerent is bound to confine hiraself to those modes which the coramon practice of mankind has eraployed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes. " NoAV, it having been the constant usage that the tribunals of the Law of Nations in these matters shall exercise their functions within the belligerent country, if it was proved to rae in the clearest manner, that on mere general theory such a tribunal might act in the neutral country, I must take ray stand on the ancient and universal practice of raankind, and say, that as far as that practice has gone, I ara willing to go, and Avhere it has thought proper to stop, there I must stop likcAvise. " It is my duty not to admit, that because one nation has thought proper to depart from the coramon usage of the world, and to treat the notice of mankind in a new and unprecedented raanner, that I am on that account under the necessity of acknowledging the efficacy of such a novel institution, raerely be cause general theory raight give it a degree of counte nance, independent of all practice from the earliest history of mankind; the institution must conform origin of the PRACTICE. 89 to the text law, and likcAvise to the constant usage upon the matter ; and Avhen I am told, that before the. present Avar no sentence of this kind has ever been produced in the annals of raankind, and that it is produced by one nation only in this war, I require nothing more to satisfy rae, that it is the duty of this Court to reject such a sentence as inadmissible." (1 Robinson's Reports, p. 140,) It is possible, that to ultra-montanist members of the Roman Catholic body, this reasoning may not be quite conclusive. They may object to the idea itself of the Pope becoming bound by any usage or practice ; but that is a question Avith them of conscience, which raay be extended to any degree, and is beyond the reach of arguraent, and into which other parties, Avho do not admit the Roman Pontiff to be above all laAv, cannot follow them. The question of fact, however, is separate from the question of conscience. Either there -has been a practice and usage in such raatters, or there has not been any such practice or usage. Thus much at least, ultra-raontanist raerabers of the Church of Rorae raust admit, that frora the earliest period since the Roraan Pontiff has exercised any authority in the business of erecting sees for Bishops in foreign lands, he has exercised such authority, be it either spiritual or ecclesiastical, with the assent and consent of the territorial sovereign. That practice originated Avhen the Pope Avas not a sovereign prince. It was observed invariably by hira for three centuries, during which he continued to possess no teraporal power. It has continued to be the rule, with very rare exceptions in such raatters, since the Popes separated themselves from, and became independent of, the princes of Constantinople, down to the Reformation, in all countries Avhich have acknowledged the spiritual 90 maintenance of the PRACTICE. supremacy of the Patriarch of the Western Church ; whilst, subsequently to the Reformation, we find that no contrary practice has grown up in regard either to those states which have continued in ecclesiastical comraunion Avith the Holy See, or those which have renounced such communion. It is difficult to under stand hoAV a principle of such importance, if it in volved a spiritual question, should never have been asserted by the Pope in his relations Avith sovereign princes, who have professedly acknowledged and recognised the spiritual supremacy of the Holy See, and that meanwhile a use and practice should have intervened, Avhich has shifted the matter altogether from its foundations on abstract principle. The necessity of protection at the hands of the territorial sovereign has introduced the right of consent on his part, and the practice of Europe has established it. 91 CHAP. IV. Mr. Bowyer, in discussing the question whether the rights of the nation and the sovereignty of the Crown have been violated, says, that " the erection of Bishoprics is an integral and essential part of the exercise of the Pope's spiritual authority, as the only primary source of spiritual or ecclesiastical juris diction, and the centre of Catholic unity on earth. How then can it be said, that by erecting Bishoprics in England, the Pope has exceeded his legally recog nised and admitted spiritual power, and exercised a civil or teraporal jurisdiction or authority ?" The answer to Mr, Bowyer's question, after the survey in the preceding chapter of the practice which has obtained in Europe, is obvious. We have seen that in Roman Catholic countries, as Mr. Bowyer hiraself adraits, new Bishoprics are not created by the Pope's authority without the consent of the Government, We have seen that in countries not in Ecclesiastical Communion with the Church of Rome, the temporal power has clairaed and exercised a control over the erection of Episcopal Sees, It has either not consented to the Roraan Catholic Church being normally constituted under a territorial hierarchy, in which case the spiritual affairs of the Roraan Catholic body have been administered by Vicars Apostolic of the Holy See, or it has consented, and in that case exercised its voice in sorae mode or 92 TERRITORIAL BISHOPRICS. other, either directly by way of "Concordat" with the See of Rome, or indirectly by raeans of diplo matic negotiations, in settHng the territorial basis of the Episcopal Constitution. It may be useful here to notice an objection Avhich has been thought to be of weight, that the Bishoprics which the Pope has erected, are not territoriali-n a sense, Avhich concerns the sovereignty or dominium eminens of the CroAvn, An answer to this reraark seems to be suggested at once by Dr, Wiseman's own state ment, that the new Bishops are Bishopjs belonging to the country, and that they are immoveable by the Pope, unlike the A'^icars Apostolic, who were uncon nected with the country, and revocable ad nutum Fontificis. Either the epithet territorial is altogether inadmissible in regard to Bishoprics, or the Bishops created by the Papal Brief are not improperly classed under that head, as exercising jurisdiction within the territory from which they take their titles. Titular Bishops, on the other hand, have a barren title ; they possess the episcopal character and dignity, but have no territorial relation, as Bishops, to the land wherein they accidentally exercise episco pal functions, A territorial dukedom and a titular dukedom are distinctions which iraport a well-known difference, A territorial duke has temporal jurisdiction in the territory from which he takes his title: whereas a titular duke has the title, but no territorial attribu tions, A territorial dukedom does not necessarily carry with it "some tangible possession of something solid," but only the exercise of certain rights and privileges qua the territory and its inhabitants are concerned, A territorial duke is not necessarily a pro- LOCAL BISHOPS. 93 prietary duke ; on the contrary, he may be dependent for " ways and means" altogether upon the supplies AA'hich the inhabitants furnish to him. So likewise a territorial Bishopric, as distinguished from a titular Bishopric, needs not imply a tangible possession of the land, or any right of property in it, but only the ex ercise of jurisdiction quci the territory, from which the Bishop is entitled, and its inhabitants are con cerned ; and a territorial Bishop may be as dependent upon the contributions of the faithful as a titular Bishop, Dr, Wiseman speaks of local Bishops, which is a convenient expression ; yet, if it were courteous to cavil at the phrase, it might be said that all Bishops are Bishops of some place or other. Titular Bishops, for instance, are ordained to the title of a place, Avhere a Church is supposed still to exist, so that " local " would be rather a generic than a specific terra. The ancient titular Bishops, against Avhom Archbishop Anselra coraplained so loudly in a letter to one of the Irish kings, " Dicitur Episcopos in terra vestra passim eligi, et sine certo Episcopates loco constitui," are supposed to have been rather abusive Bishops, or in the nature of Chor-Episcopi, a species, it is thought, of suffragan Bishops, On the other hand, the English suffragan Bishops, appointed under 26 Hen, 8. c. 14,, were as much local Bishops as the ordinary Bishops ; for these Suffragans had EngHsh Sees, and raight have been aptly styled local Suffra gans, in contradistinction to titular Suffragans, such .':1s the Suffragans of the ordinary Bishops in Prussia Avho are consecrated Bishops in partibus. The statute 26 Hen, 8. c. 14., deserves a cursory notice. By that Act it Avas provided, that twenty- 94 suffragan BISHOPS. five Towns in England and Scotland, and the Isle of Wight in addition, should be taken and accepted for Sees of suffragan Bishops: that the Archbishops and Bishops in ordinary should severally have the power, if they so pleased, to select two honest and discreet spiritual persons to be named by them for Sufiragans, and should present them to the King, who should have the power to give to one of those persons the style, title, and name of a Bishop of such of the Sees aforesaid, as the King should think fit, provided it be within the same province, " whereof the Bishop, that doth narae, is." Letters Patent were thereupon to be issued under the Great Seal, addressed to the Archbishop of Canterbury or York, as the province might be, signifying the name of the person presented, and the style -and title of dignity of Bishopric Avhereunto he shall be nominated, requiring the Archbishop to consecrate the said person so nominated and presented to the same narae, title, style, and dignity of Bishop that he shall be nominated or presented unto. It was further provided, that these Suffragans should not use, have, or execute any jurisdiction, or episcopal power or authority within their Sees, but such only as they should be licensed to use by any Archbishop or Bishop of this realm, within their diocese, to whom they shall be Suffragans. This Act is still in force, having been repealed by 1 & 2 Philip and Mary, c. 8., but revived by 1 Eliz. c. 1. A curious question may ac cordingly arise upon its construction, in conjunction Avith the Roman Catholic Relief Act. Shrewsbury and Nottinghara are araongst the twenty- five towns which are to be taken and accepted for Sees of Suffragan Bishops, but they are likewise towns which the Pope has erected into Sees for his Ordinary THE ROYAL AUTHORITY. 95 Bishops, who are accordingly to take the style, title, and name of Bishops of those Sees, which are ap parently Sees established by Law, and consequently protected from usurpation under a heavy penalty. To resurae the argument, it is not very easy to understand, upon the review of the practice which has obtained from time imraeraorial throughout Europe, how it can be contended that the Pope's power to erect Bishoprics motu propria within the territory of an independent Sovereign Prince has ever been legally recognised and admitted. The record of such a fact no where exists. True it raay be in a certain sense, "that the erection of Bishoprics is an essential part of the Pope's spiritual authority," in other words, that Avithout the Pope's spiritual co operation, the erection of a Roraan Catholic Bishopric would not be complete ; but it does not folloAV that the Pope's spiritual power is all that is required for the erection of a Bishopric. The spiritual authority of the Pope may be a necessary condition, Avhere the will of the Prince is the efficient cause ; but, on the other hand, the consent of the Prince is likewise a necessary condition, if ever the will of the Pope should be the originating cause. " Alterius sic Altera poscit opem res, et conjurat amice." This is a raatter of historical fact, as Avell as of legal deduction. If Mr. Bowyer therefore had written, " no power without the Pope," instead of " no power except the Pope, can erect or create Roman CathoHc Bishoprics here," the position might have been maintained by the side of a parallel statement on behalf of the ter- 96 summary mode of procedure. ritorial sovereign, that no power without the Crown, i. e. without the consent of the Crown, can erect Sees for Roman Catholic Bishops within its territory. The question is accordingly asked by Mr. Bowyer, " ought AA'e to have applied for Bishops to the Crown ? If not, whence could the creation of- our Archbishop rics and Bishoprics proceed, except from Rome?" There is either ah unintentional confusion of thought, or an intentional confusion of statement, in this pas sage. It is one thing to have applied to the Crown for Bishops, as the gift exclusively of the Crown, which the Roman Catholics, it may be observed, had already, and another thing to have applied to the Crown for its consent, as the Crown of the realm, that the Pope should erect Bishoprics, i. e. Sees for Bishops within the Realm. But it is suggested, that " the posi tion of the British GoA'ernment Avith reference to the Holy See precluded the Crown from giving to that mea sure a direct sanction." If this be so, it refutes at once Mr. Bowyer's assumption, that such creation of Bishops is not forbidden by the law of the land; for if the Crown through its ministers be precluded by the laAV of the land from giving its sanction to any such measure, the measure cannot be a laAvful mea sure. If, on the other hand, it is meant that the CroAvn Avas precluded by the accidental position of its Governraent, in respect of the CroAvn having no direct diploraatic intercourse with the Court of Rome, there was no such insuperable difficulty Avhich could justify the Holy See in having recourse to so sum mary a raode of procedure as involves the present " coup de main," raore particularly since the Im perial Legislature has, Avithin the last tAVO years, relieved the Crown frora any doubt, if it existed, as to its poAver to modify the position of its executive LETTER OF POPE GREGORY XVI. 97 •government. Besides, the absence of direct diplo matic intercourse betAveen the Vatican and the Court of St. James is not a valid excuse for the act of Pope Pius IX. under any circumstances. His immediate predecessor. Pope Gregory XVI., had no diplomatic Envoy at the Court of St. Petersburgh in 1841 ; yet that circumstance, which the Pope declared was much against his will*, was not held by hira to con stitute such a barrier as to preclude hira frora directly communicating to the Eraperor Nicholas, by a letter under his own hand and seal, his full compliance with the Emperor's demands. Yet if there ever was an occasion in which the Pope might have justly stood upon diplomatic punctilio, it was in a case which involved the Emperor's appointraent of an actual Bishop in partibus to an Archiepiscopal See, and the resignation by a Bishop in ordinary of his See, enforced upon him by the will of the territorial sovereign. So entirely does modern Rome invert the practice observed by the ancient Queen of the Seven Hills, " Parcere subjectis et debellare superbos." It is said, however, " that the British Government ignores the Pope diplomatically, except as the So vereign of the Roman States, and ought not to com plain that his Holiness did not ask a consent which the Crown could not give, as though there were a Concordat subsisting between the See of Rome and her Majesty," It does not seem on this occasion to * "Licet in ea conditione molestissime simus, ut nee aliquem istic habeamus qui nostram Sanctfeque hujus sedis personam gerat, nee facultas detur cum Episcopis vastissimse ditionis tuae circa Ecclesiae negotia libere communicandi." Cf. Risposta del S. Padre de 7 Aprile 1841, in Appendix, p. cxii. H 98 THE SOVEREIGN OF THE ROMAN STATES. have occurred to the writer, that diplomatic inter course is peculiarly an intercourse between Sovereign Powers, and that her Majesty Queen Victoria is at full liberty, according to the Custom of Europe, to accredit a public minister at the Papal Court, on the express ground of the Pope being the Sovereign of the Roman States, and upon no other ground, for it is only to Sovereign Powers that the right of embassy belongs. The Pope, it is true, as already observed, claims to possess a twofold character, that of Universal Bishop, or Primate of the Christian World, and that of a Sovereign Prince. As Universal Bishop he is a purely spiritual character, and can neither send nor receive ambassadors. If he were to cease to be a Sovereign Prince, the right of embassy would cease to attach to him in his mere spiritual character. Hence, for the purpose of diplomatic intercourse, it is as unnecessary that England should acknowledge in the person of the Pope the character which he clairas of Successor of St. Peter, and Universal Bishop of Christendom, as it is unnecessary for England to acknowledge in the person of the Sultan of Turkey the character of Successor of the Prophet and De fender of Islam. The spiritual character belongs to religion, not to politics, and diplomacy neither ven tures nor cares to meddle with theological claims. It is sufficient for the purpose of diplomatic inter course, that the Pope should be the Sovereign of the Roman States, and if England recognises the Pope in such a character, England does not in any way ignore him for any legitimate diplomatic purpose. It is perhaps rauch to be regretted, that England has clung so long to the traditional fiction of the Pope being only Bishop of Rome and not a Sovereign THE FOPE, A FOREIGN POWER. 99 Prince ; and that the Crown has accordingly re frained from accrediting a resident minister at the Court of Rorae. But that tradition has been abolished by an act of the Legislature (11 & 12 Vict. c. 108.), which has directly declared that her Majesty may accredit a diplomatic envoy to the Sovereign of the Roman States. Hence, indeed, there is the more ground for complaint, that his Holiness has on the present occasion neglected to ask the consent of the Crown of England. The observation as to the non existence of any Concordat is wide of the raark, for, as already shewn, there is no Concordat with Prussia, or Hanover, or Russia, yet in the settlement of the affairs of the Roraan Catholic Church in all these countries, the consent of the Crown was the basis of the arrangement, and it was obtained by means of diplomatic negociations without any Concordat, It is a subject not unworthy of remark, that all the Courts of Europe treat and negociate with the Holy Father as a Foreign Power. At some Courts Papal Nuncios reside, who are received and rank araongst the raerabers of the diplomatic body, and who address all communications to the sovereign to whom they are accredited, through the Minister of Foreign Affairs, and not through the Minister of Public Worship. Again, in such States* as do not receive a Nuncio from the Holy See, communications between the Sovereign and the Pope are carried on by the Minister of Foreign Affairs through the Lega tion accredited to the Court of Rome. Belgiura, for example, supplies us with a notable illustration of * For instance, there is no longer a Nuncio at Brussels, or at Warsaw, as was once the case ; whilst, on the other hand, many Courts have never received a Nuncio. H 2 100 ALLOCUTION OF POPE PIUS IX. this fact. Pope Pius IX. on the 20th May, 1850, delivered an allocution in Secret Consistory, in which he advanced grave allegations against the Belgian governraent " on account of the perils Avhich menaced the CathoHc reHgion in Belgium." In reference to this we find in the first of Cardinal Wiseman's lectures, printed " by authority," a passage from the speech of " the Minister of Justice in Belgium," in the debate which took place in the Belgian Chamber of Repre sentatives on 16th Nov. 1850. " How little fear," the Cardinal observes in the moral which he draws from the language of the minister, " is entertained in that country of danger to the state, from the action of the Papal poAver ! " It might be supposed from the Cardinal's repre sentation, that the Minister of Justice was called upon in his capacity of Minister of the Department of Religious Affairs to give explanations to the Charaber; and that his explanations were perfectly satisfactory, and allayed all their fears. But his Erainence, in referring his readers to this debate, has oraitted to notice the debate of the 15th Nov., which was on the subject of the allegations of his Holiness against the Belgian governraent, and of which the debate of the 16th Nov. was, as it were, a renewal. The Minister of Foreign Affairs was the member of the Cabinet, Avho was called upon by M- de Perr cival on the first day of the opening of the Chambers after the laraented death of the Queen of the Belgians, to give explanations as to the attitude assumed by the Belgian governraent in consequence of " the Allocution of the Holy Father;" and he thereupon laid before the Charaber the written despatches from the Foreign Office to the Belgian Charg^ d' Affaires* * See Appendix, p. cxiv. DEBATE IN THE BELGIAN CHAMBERS. 101 at Rome, Avith the substance of the verbal note com municated officially in reply to the Charg6 d' Affaires by the Cardinal Secretary of State. The purport of this diplomatic comraunication was to claim the attention of the Pope to the real state of the law in Belgiura, and to appeal to his high irapartiality to do justice in regard to the misrepresentations Avhich had been spread abroad concerning the measures of the Belgian government. His Holiness on this occasion directed the Secretary of State to correct an inaccuracy in the report of his allocution, and to explain that his language as to the Catholic Faith being in peril, had reference to the law of education at that time (May, 1850), under the consideration of the Belgian Chamber. The Belgian Government, in answer to this explanation, declared that they did not consider this reply on the part of his Holiness to be sufficient ; and the Charaber, after a long debate, approved the language and the conduct of the Governraent by a division of fifty against twenty-four. It thus appears that his Holiness the Pope did not consider his authority in such a raatter to be out of the reach of diploraatic negotiation, and that Belgium, to Avhich country Cardinal Wiseman directs the at tention of his readers, as illustrating in the simplest manner " the reciprocal right of a Church not esta blished in monopoly, and of the civil Governraent," deals and negotiates with the Papal Power as a Foreign Power. Further, to mark the dissatisfaction of the Belgian CroAvn, a discontinuance of the usual mode of friendly intercourse has been adopted accord ing to the practice of Europe between independent Sovereign Powers, and the Belgian Envoy to the Court H 3 102 ultra-montanism of THE brief. of Rorae is not for the present to resume his diplo raatic functions at that Court. It is further said, -that any interference on the part of the Sovereign with the restoration of the Roman CathoHc Hierarchy, " is an interference with the internal government of the Roman Catholic Church, which is as absurd on Protestant as on Catholic grounds." This remark of Mr. Bowyer's tends to change the issue altogether, and to transfer the ques tion from the domain of law, to the region of theology. It is not a question of Protestant or Catholic inter ference, which is involved in the present issue be tween Rome and England : it is a question of Public Authority and National Preservation. Let us consider for a moraent Avhat the present Brief purports to effect. And here, indeed, a serious question arises for the Roraan Catholic body in England. The Pope ordains that his Letters Apo stolical shall be valid and take effect, notwithstanding the sanctions of Universal Councils to the contrary. In other words, the Pope here proclaims himself to be above the authority of Universal Councils. This principle of Ultra-Montanism* has hitherto never been accepted on the Northern side of the Alps. * Cf. Bellarmine de Auctoritate Conciliorum, 1. 2. c. 13., who discusses " An Concilium sit supra Papam," and says, " et quam- vis postea in Concilio Florentino et Lateranensi ultimo videatur qusestio diffinita, tamen quia Florentinum ConciUum non ita ex presse hoc diffinivit, et de Concilio Lateranensi, quod expressis- sime rem diffinivit, nonnuUi dubitant, an fuerit necne Generale, ideo usque quaestio. superest etiam inter Catholicos." The Councils of Constance (1414-1418) and Basle (1431-1443) rejected the doctrine of the Pope's authority being paramount to that of General Councils. That doctrine, in its most extravagant form, was set forth in the Bull " Pastor ^ternu.s," published by Leo X., in 1516, almost immediately after the last Council of Lateran, cardinal bellarmine's view. 103 If the omnipotence of the Holy See be thus openly maintained at the very outset, what power but the temporal power of the State remains, which can be successfully invoked to lirait the things appurtenant to the spiritual function f If the Pope's Brief shall run vigore suo within the reaira of England on the present occasion, notwithstanding it is admitted to be contrary to the Law of the Land that it should be published and put into execution, to what sanction can an appeal be made to stay the execution of any other Brief? If it should prove to be an article of faith amongst the raajority of the Roraan Catholic body in England, that the Pope's authority is above that of Universal Councils, they must boAV to his ordinances, whatever be the nature of their sub ject-matter, and it becomes a spiritual duty for thera to carry into execution the Papal decrees, however much they may be opposed even to the judgment of the Universal Church ; and, according to the doctrine set forth on the present occasion, the majesty of the Law of the Land, if it forbids the particular act enjoined by those decrees, must veil its head before the majesty of Individual Conscience ! If this doc trine be not destructive of public authority — if it be not fatal to national preservation — let it be publicly recorded in the Tables of the Laws of the Realm, so that all who pass by may note it. But the Soman Catholic body in England, if it accepts the Brief of Pope Pius IX. and its territorial for the purpose of condemning the Pragmatic Sanction in the kingdom of France. This Bull recites that the Eternal Shepherd "migraturus ex mundo in soliditate petrae, Petrum ejusque successores Vicarios suos instituit, quibus, ex libri Regum testi monie, ita obedire necesse est, ut qui non obedierit, morte mori- atur." — Bullarium, tom, iii. pars iii. p. 430, H 4 104 ROMAN CATHOLIC LAITY, Hierarchy, must accept the doctrine that the Pope is above the authority of Universal Councils ; it must, in fact, accept Popery, as distinguished from the Catholic Faith, in its most ultramontane form. For the CathoHc Faith does not require that doctrine to be received; and the Roman CathoHc Church in Gerraany and France still raaintains with Pope Zosimus, " contra statuta Patrum condere aliquid, vel mutare, nee hujus quidem sedis Apostolicse pot est auctoritas."* It cannot therefore be matter of surprise, on the contrary, it was to be expected, that the Chiefs of the Roman Catholic Laity in .England, who hold the Catholic Religion of their ancestors, which admitted no such doctrine, should raise their voices and protest with instinctive good sense against an Act of the Pope, which places them " in a position where they must either break with Rome, or violate their al legiance to the Constitution of these realms." Here we may revert once more to the proceed ings of the Synod of Thurles, to which allusion has been already made in an earlier chapter. Her Majesty's Government, anxious to afford to the middle classes of Ireland the means of educating their sons in a inanner suitable to their station and wants, seeing that half a raillion of the children of the lower classes attend the national schools, pro posed to establish three colleges in Irelajid, in which, by appointraent of the Crown, professors were to lecture in all departments but theology, in which * Cf. Declaration du Clergd de France, touchant la Puissance Ecclesiastique, du 19 Mars, 1682, in the fourth volume of Les Libertes de I'Eglise Gallicane, par Durand de Maillane, p. -458. "Le jugement du Pape n'est pas irreformable, a moinsque le con- scntement de I'Eglise n'intervienne." SYNOD OF THURLES. 105 subject it was left open for the students to seek in struction at the hands of their OAvn Clergy beyond the walls of the colleges. It was reasonable to expect that as the Government carefully avoided the reality as well as the appearance of seeking to give a bias to the religious opinions of the youths who raight fre quent the colleges, the Irish laity would welcorae institutions of such importance brought to their own doors. They did so welcorae thera ; for, be it ob served, it was not proposed to confine the students within the walls of the colleges, so that they should not be approached by the rainisters of their religion ; but the students were to live with their parents, or such friends as their parents raight select, were to frequent the place of worship which their parents frequented, were to receive religious instruction and exhortation from the pastors whora their parents attended. The State, as such, could not be expected to do more. In Belgium, where the State has attempted to do more, the system has failed precisely in that part of it which bears upon religion. The Irish Roman Catholic laity welcomed these collegiate institutions. They saw in thera a further token of the sincerity of Her Majesty's Government in their policy of impartiality. The Roman Catholic clergy, oh the other hand, were divided in opinion : a part of them were in favour of the colleges : and nearly a moiety of the Bishops placed theraselves at their head. Had Dr. Crolly, who knew so- well the interests and wants of his fellow countrymen, not been removed from his post by death, it is not too much to say that he would have cooperated with Dr. Murray in rendering the civilizing eleraent of the new colleges as available for the middle classes, as 106 DR. cullen's APPOINTMENT. the schools have hitherto proved to be for the lower classes. We shall now find the evil of the foreign element in the Roraan Catholic system. On the death of Dr. Crolly, the usual rule in the election of Bishops of the Roman CathoHc Church in Ireland was observed by the clergy upon whom the election devolved ; and the names of three candidates were transmitted to Rome as dignus, dignior, dignissimus. The Pope, however, violated on this occasion all the rules which have hitherto governed such appointments, and nominated a fourth party to the vacant post of Archbishop, Dr, Cullen, whom the Pope thus arbitrarily nominated as the successor of Dr. Crolly, is an Irishman by birth, but by education an Italian monk ; he has never discharged any pastoral duty in Ireland, and is a stranger to its wants and the interests of its people; but he has been selected for a special mission, to de feat an Act of the Imperial Legislature, which had established the colleges, and to extinguish all educa tion not octroye by the Roman CathoHc clergy. Ac cordingly a Synod of the Roman Catholic Bishops — a thing unheard of in Ireland since the Reformation — was convoked at Thurles ; and a " Synodical Address of the Fathers of the National Council of Thurles" was put forth by authority. " Far be it from us," they say, " to impugn for a moment the motives of the originators (of the system of education in the Col legiate Institutions), The system may have been devised in a spirit of generous and impartial policy : but the statesmen Avho framed it were not acquainted with the inflexible nature of our doctrines, and with the jealousy with which we are obliged to avoid everything opposed to the purity and integrity of our faith. Hence those institutions which would have called for CARDINAL fransoni's RESCRIPT. 107 our profound and lasting gratitude, had they been framed in accordance with our religious tenets and prin ciples, raust now be considered as an evil of a forrai- dable kind, against which it is our iraperative duty to warn you with all the energy of our zeal, and all the weight of our authority." We find here precisely the same attitude adopted by Dr. Cullen, as by the Roman Catholic Bishops in Belgium. The State, as such, cannot undertake to furnish education in accordance with the theological tenets and principles of every religious comraunity ; it raust therefore abandon, if Dr. Cullen's view is to prevail, the important duty which it has undertaken to discharge in Ireland, and must be content to pro mote the civilization of the people by purely material means ! Yet the State cannot consent, with safety to itself, to abdicate one of its highest functions ; it cannot safely fold its hands in the presence of a moral barbarism which occasionally paralyses the law, and rest satisfied, as heretofore, with punishing the pea santry for offences, as they arise, against an order of things which they have never been taught to respect. There Avas, however, as already stated, a difference of opinion amongst the members of the Synod ; and the question was referred to Rorae, where the raatter was laid before a council of foreign Prelates, who could have no acquaintance or sympathies with the moral wants and interests of the Irish people. The result was accordingly announced in a rescript from Cardinal Fransoni, of the date of 9th October, 1847, to each of the four Roraan CathoHc Archbishops in Ireland, informing them that " The Sacred Congre gation, on the subject of the Academical Colleges, considers that Institutions of the sort would be a detriment to religion." 108 THE PROPOSED CATHOLIC ACADEMY, "AU controversy is now at an end," writes Dr. Cullen, " the Judge has spoken, the question is de cided." As a compensation to the Irish people for the boon of Avhich they are to be deprived, — and be it remem bered, that the College at Galway Avas placed under the headship of a distinguished Roman CathoHc eccle siastic, and that of Cork under the headship of a dis tinguished Roman Catholic layman, — the Propaganda gravely proposes that a Catholic academy, on the raodel of that which the prelates of Belgium founded in the city of Louvain, should be erected by the united exertions of the Roman Catholic Bishops in Ireland, It is strange that this Foreign Body, which clairas to thwart the Act of the Parliaraent of Great Britain and Ireland, instead of working hand in hand Avith the Executive, and contributing, by the promo tion of a subsidiary scheme of religious education for the Irish Roraan Catholics, to raake good those de fects Avhich in its opinion raay exist in the arrange ments of the State, should have overlooked the fact, that the Bishops whom it exhorts to found a Catholic Academy for the laity of Ireland, are indebted to the State for the raeans of educating their clergy ! The State raay henceforth deem it imprudent to subsi dise a college for the education of the Roman Catholic clergy, seeing that it thereby relieves the Roman Catholic Bishops of that duty, and indirectly places funds at their disposal for the purpose of defeating the enactments of the Legislature, But Dr, CuUen does not stop here, " The solemn warning," he says, " which we addressed to you against the dangers of those Collegiate Institutions, extends, of course, to every Establishment known to be replete with danger to the Faith and morals of your children — to every INTERFERENCE OF A FOREIGN TRIBUNAL, 109 school in which the doctrines and practices of your Church are impugned, and the legitimate authority of your Pastors set at nought, Alas I Our country abounds with too many public Institutions of this kind, which have been the occasion of ruin to thousands of those souls that were redeeraed by the precious blood of Jesus Christ." It is not publicly known, by what means the Synod has resolved to enforce upon the Irish laity the decision of the Propaganda at Rome, but if the Synod should have resolved to deny the sacraments of the Roman Catholic Church to the students at the Colleges, and their parents, and to extend the same principle to the National Schools, where 500,000 children of the poor are at present educated, the formidable character of the mixed power, which Rome -wields in matters Avhich are not purely spi ritual, becomes strikingly apparent. It is not by reason of the Roman Catholic body in Ireland reject ing, as a matter of conscience, the civilising influence which the State has placed at their command, that the State complains, but on the ground that in a matter of a purely domestic nature, the decision of a foreign tribunal intervenes, to mar an enterprise Avhich so raany Roraan Catholic subjects of Her Majesty conscientiously approve. The Roraan Catholic Clergy have been forbidden by a further rescript of 18th April, 1850, to dis charge any function having reference to the said Colleges, and, to give an air of corapleteness to the proceedings, the Address of the Synod is published " by authority," and subscribed, in defiance of the Statute Law of the Reaira, "Paul, Archbishop of Armagh, Priraate of all Ireland, and Delegate of the Apostolic See, President of the Synod." 110 DR. cullen's example. Where the highest Minister of Religion in the Roman Catholic Church in Ireland thus openly and flagrantly violates the Law of the Realm, it is worse than idle for him to caution his flock against " those publications in which loyalty is treated as a crime, and a spirit of sedition is insinuated." The curse of Ireland, socially, has been the want of good example in the laity: and now, the political curse of bad exaraple is to be enforced upon the Roman Catholic clergy, by the servant of a Foreign Power. It has been sagaciously remarked by a foreign statesraan, that England has one great advantage in respect of other states, which have passed from the condition of absolute monarchy to that of mixed monarchy, that there has been hitherto no dispute in England, where the sovereignty resides. There has been no question raised in England between the Sovereignty of the Crown, and the Sovereignty of the People, like that which has been raised in many States, and coraproraised in a manner so as not to prevent its being renewed on those critical occasions of State policy, where the sovereignty may not be questioned Avith safety to the State itself. We have a Sovereign Legislature in the Queen, Lords, and Coraraons, but the Sovereign Executive power is in the Crown itself. No colHsion of authority, except in some unforeseen and very extrerae case, can well arise in England ; for the raajesty of the law reigns supreme in the hearts and understanding of English men. It is only where the foreign power of Rome steps in, that we see the traditions of England broken, the law of the land openly set at nought, and its prohibitions infringed, because its penalties are not enforced. Considerable stress has been laid by Mr. Bowyer THE SUSSEX peerage. 111 and Mr. Anstey on the circumstance that the House of Lords, in the Sussex Peerage case, received the evidence of the Right Rev. Dr. Brown, and the Right Rev. Dr. Wiseman, the former being a Vicar Apo stolic, the latter the Coadjutor Bishop of a Vicar Apostolic, while it rejected the evidence of the Jesuit Superior of Stonyhurst College. Mr. Bowyer con tends that the evidence was received on the ground that a Vicar Apostolic was virtute officii peritus in the matrimonial law of Rome. Mr. Anstey, on the other hand, maintains, that " the House of Lords at tached no importance to their character as ex officio members of the Roman tribunals, and considered them to be periti only by reason of their exercising Canonical jurisdiction in England and Wales under the Bulls of the Roman Pontiff." It is somewhat difficult to ascertain on what grounds precisely the evidence of these witnesses was adraitted, as the House of Lords has not stated the reason of its decision. It should be kept in mind, however, that the question before the House of Lords did not re gard the matrimonial law administered amongst the Roman CathoHcs in England, but the matrimonial laAV adrainistered in Rorae itself, and it appeared frora Dr. Wiseman's evidence, that the Decree of the Council of Trent, Avhich is a portion of the Law of Marriage at Rome, was no part of the law which he administered in regard to marriages in England. It would seem rather from the long series of questions put to Dr, Wiseman *, that his office in England was * It appeared from Dr, Wiseman's evidence, that he had held the ofiice of Superior of the English CoUege at Rome from 1818 to 1840, and had then an opportunity of making himself acquainted with the practice and doctrine of the law at Rome. It further 112 OFFICE OF BISHOP. not held to raake his evidence adraissible, but that it was admitted rather on the general result of his ex amination satisfying the House of Lords, that he had studied the Matrimonial Law of Rome, and was de facto peritus. Mr. Lithgow's evidence, on the other hand, was rejected iramediately upon his stating that he had taken an oath as a Jesuit, not to accept any ecclesiastical dignity, and therefore was disqualified frora becoming a raeraber of the Congregation, which has the decision of all questions of Matrimonial Law at Rome. " The Counsel were thereupon informed that the witness did not appear, from his position, to come within the description oi. peritus" Sir Thoraas Wilde then stated, " that he proposed to ask for an opportunity of producing other persons filling the office of Bishop, for the purpose of giving the testiraony Avhich he intended to obtain from this witness." The result of a careful consideration of these several facts, (1) that Dr. Wiseman's evidence was admitted, although he was not a Vicar Apo stolic, but only a coadjutor Bishop; (2) that Dr. Brown appeared to be both a Bishop and a Vicar Apostolic*; (3) that Mr, Lithgow was rejected, al though he stated in his evidence, that he had a pecu liar jurisdiction incident upon questions of marriage under the Vicar Apostolic ; and (4) that the eminent lawyer who produced Mr, Lithgow stated, on his rejection, that he should ask to produce other persons filling the office of Bishop, leads to the conclusion, appeared that Dr. Brown had made himself practically familiar at Rome with the proceedings of the Congregation of the Council of Trent, and the Law of Marriage as therein administered, * It is very properly observed by Mr. Bowyer, that the epis copal character is not essential to Vicars Apostolic, DECISION OF HOUSE OF LORDS, 113 that it was not upon the question of the spiritual jurisdiction of the Vicars Apostolic that the House of Lords decided to admit Dr, Wiseman and Dr, Brown as witnesses, and reject Mr, Lithgow, but upon the fact that Dr. Wiseman and Dr. Brown were both Bishops of the Church of Rorae, and that Mr. Lithgow had no such position in that Church. In fact, the inference is entirely in this direction, since Dr, Wiseman's evidence was admitted, although he was not a Vicar Apostolic ; whilst Mr. Lithgow's evidence was rejected, although he stated that he was, in the first instance, a Judge upon the subject of marriages, and exercised a peculiar jurisdiction re ceived from the Vicar Apostolic. If this view should prove to be correct, then the decision of the Highest Court of Coraraon Law in these realras does not carry the question as to the recogni tion of the spiritual authority of the Pope over the Roraan Catholic subjects of her Majesty any further than the Acts of the Legislature, which have recognised the Episcopal office of their Bishops. 114 CHAP. V. Let us" now proceed to examine a little more closely the principle involved in the change from Vicars Apostolic to Bishops in Ordinary, inasmuch as it seems to be maintained by Dr. Wiseman, that the change is a mere question of form, not of substance, and that there is no principle of law involved in it. " It has been raerely a change of title," writes Dr, Wiseman, in his first lecture. " Bishops who before bore foreign titles, under which spiritually to govern British Ca tholics, |have now received domestic titles; and the sphere of their jurisdiction is caUed a diocese instead of a district." In the first place, then, let it be understood, that the office and title of Vicar ApostoHc is an office and title unknown to the Canon Law. No trace of it occurs in the collection of Decrees and Canons known as the Corpus Juris Canonici, further than that every Bishop has power to delegate a Vicar, Writers such as Van Espen, Thomassinus, and even Reiffenstuel and Schmalzgrueber are silent upon the subject of Vicars Apostolic, further than that the two latter canonists say, that the Vicar General of a Bishop may be delegated by the Apostolic See to execute its mandates and graces. The title indeed, and office of Vicar Apostolic, have their foundation rather in the Curial Law of the Roman Pontiffs, than in the Canon Law of the Roman Catholic Church, Dr, Watson, who had been appointed Bishop of AN ARCHPRIEST SENT TO ENGLAND, 115 Lincoln, under a Papal Bull in the reign of Queen Mary, was the last survivor of the English Prelates who were expelled frora their Sees by Queen Eliza beth. He died in 1584. A scheme for reviving the separate Episcopacy in England, by the establish ment of new Sees, was thereupon submitted to the Pope on behalf of the Roman Catholics in England ; but it was held at Rome, that political circumstances did not admit of the establishment of any episcopal Sees, just as, we find from Van Espen *, it was ruled at a later period in the case of the Dutch Churches, which had passed into the hands of the Jansenists. An Archpriest ( Archipresbyter), a sort of Rural Dean, was accordingly sent over by Cardinal Cajetan, in virtue of a Brief frora Pope Gregory Xlll.f (24th May, ] 598), granting to hira licence to perforra certain offices of benediction and consecration with discretion and secrecy. Mr. Blackwell, who accepted the office, was further furnished with Letters, addressed to hira self frora Cardinal Cajetant, deputing hira to govern the secular clergy in the Anglican Vineyard, in like ' " Exemplum vidimus in Ecclesiis nobis vicinis, nimirum metro- politana Ultrajectensi et Cathedral! Harlemensi, quse a centum cir- citer annis in potestate Acatholicorum constitutae, numerosum admodum populum cum suo proprio clero et ordinariis pastoribus retinuerunt : quibus et Episcopus datus fuit, qui tametsi ad eas Ecclesias regendas et administrandas ordinaretur, quin et earum Ecclesiarum vulgo a populo et clero haberetur et reputaretur Epi scopus, nihilominus propter politicas rationes non sinebatur ad titulum eorum Ecclesiarum ordinari, sed peregrince Ecclesice nomen mutuare debebat et ab eo nomen Episcopi ger ere'' — Part 1. tit. xv. §8. \ This Brief was addressed to Mr. George BlackweU, Robert Gwin, and Vivian Haddock, according as one or other of them should accept the office. The dat« of 1578, in Dodd's Church History, is evidently a misprint. X The Protector of the English Nation at Rome. I 2 116 GOVERNMENT BY ARCHPRIESTS. manner as we find an Archpriest resident in Holland, so late as at the conclusion of the last century. The authority of the Archpriest was at first energetically resisted by the Roman CathoHc Clergy in England; but they ultimately gave way, after a Brief of Pope Clement VIII. (6th April, 1599) had been issued to confirm the institution of Mr. Blackwell as Arch priest, and in deference to a special Brief* (17th August, 1601), issued for the purpose of putting an end to the Anglican dissensions. The authority of the High Priest, as defined by the Letters of Car dinal Cajetan, which were specially confirmed by the former of these Briefs, was confined to the direc tion and correction of the secular clergy, the regular Orders and the Society of Jesus being specificaUy exempted. This system of governing the Roman Catholic Clergy in England through a succession of Archpriests was continued down to 1623, when political affairs in England had assumed a raore favourable aspect in regard to Rorae, in connection with the visit of Prince Charles to the Court of Spain, as a suitor for the hand of the Infanta, Mr. Butler, in the second vo lurae of his " Historical Memoirs of the EngHsh Catho lics," states that King James L, in order to promote the marriage of his son with the Infanta, agreed, by secret articles, to procure a free and liberal toleration of the Roman Catholic religion in his realras, and thereby was enabled to procure from the Holy See a dispensation for the marriage of his son with the Infanta, which however never took place. * This Brief was addressed to George Blackwell, Notary of the Apostolic See, and Archpriest of the Kingdom of England, and to the rest of the priests and clergy of that kingdom, and the whole Catholic people. Cf. Appendix, p. xxiv. MISSION OF A BISHOP IN PARTIBUS. 117 A marriage with a Princess of France was then projected ; but the necessity for a dispensation frora the Holy See was equally great in order to secure the hand of Henrietta Maria, and accordingly the basis of their marriage was the adoption of the articles which had been concluded with the view of propitiating the Infanta. * On the Ides of March, 1622, the Pope issued a Bull t for the consecration of Dr. William Bishop, the Elect of the Church of Chalcedon in partibus, with a special reservation, that no prejudice should arise to the Patriarch of Constantinople, to whose metropolitan jurisdiction the Church of Chalcedon was subject. There is no allusion of the slightest kind to England in this Bull. In the following year (23rd March, 1623) a Brief J was issued by Pope Gregory XV., addressed to W^illiam, the Elect of Chalcedon, licensing him to use, expressly for the consolation and spiritual welfare of faithful Catholics in England and Scotland, all the faculties enjoyed by the Archpriests in Eng land, as well as those which are enjoyed by Ordinaries in their Cities and Dioceses, during the pleasure of the Holy See, notwithstanding the decrees of General Councils and all things to the contrary. No raention of the title or office of Vicar Apostolic is to be found in this Brief, nor in the subsequent Brief § of Pope Urban VIIL (4th Feb. 1625), appointing a successor to Dr. Bishop in the person of Dr. Richard Sraith. It may be remarked, that this Brief was also addressed to Richard, the Elect of Chalcedon, and that the cog- * The priests, who accompanied Henrietta Maria, were of the religious order called Oratorians, whose peculiar habit has recently resumed a place amongst the costumes of the streets of London, in spite of 10 G. 4. c. 7. s. 26. which imposes a penalty of 501. for every offence of so exhibiting it. t Appendix, p, xliii. X Appendix, p, xlvi. § Appendix, p. xlvii. I 3 118 FOUR VICARS APOSTOLIC, nisance of all causes in the second instance was specially reserved to the Nuncio at Paris, as here tofore exercised by liim. It has been a subject of dispute araongst Roman Catholics, as may be seen by referring to the Church History (Dodd's) of England published at Brussels in 1742, whether the Bishops of Chalcedon exercised original or delegated power, as Bishops. There can be no doubt, however, on referring to two Decrees* published by the Congregation of the Propaganda at Rome, that the Vicar ApostoHc had no ordinary jurisdiction, and that he was expressly admonished by the Nuncio at Paris to lay aside the title of Or dinary which he had assumed, and not to permit himself to be so entitled. The theory involved in the system of Vicars Apos tolic, which official designation seems to have crept in and established itself by use, was, that the Roman Catholics in England and Scotland were under the immediate episcopal authority of the See of Rome; that authority being exercised through a Vicar, who was for the raost part himself a Bishop in partibus, and so far personally capable of performing all things appertaining to the episcopal office ; such as con ferring Holy Orders, consecrating the Chrism, &c. The number of Vicars Apostolic was increased to four at the request of King James II,f , who assigned to each of them an annual salary of 1000^, per an nura, payable out of the Exchequer, This salary ceased Avith the Revolution of 1688 ; but the arrangement of four districts was preserved down to 1840 ; and the system itself was more corapletely developed by the Brief J of Pope Benedict XIV,, in 1753, which gave * Appendix, p. xlviii. f Butler's Historical Memoirs, iv. 400, :j: Appendix, p. 1. APPEAL TO THE POPE, 119 to the Vicars authority over the Regular clergy in addi tion to that which they enjoyed in common with Ordinaries over the Secular clergy. Nothing indeed was wanting, as declared in the fourth section of this Brief, which could conduce to the sound government of either the regular or secular clergy. The great link, however, of the ancient chain which connected England Avith the Holy See before the Reformation, was still wanting, namely, the link of Ordinary Juris diction, without which, the Supremacy of the Pope, as Pope, was stUl suspended with regard to England. Under the system of Vicars ApostoHc, the Pope, in fact, exercised over the Roman Catholics in England the pastoral superintendence of a Bishop, and not the appeUate jurisdiction of Suprerae Pontiff through the channels of a regular Hierarchy, and according to the rules of the Canon Law. Henceforth, however, the Canon Law is iraported into the system of the Roman CathoHcs in England ; and by that law, the ancient jurisdiction and pre-eminence of the See of Rome, as claimed and used within this realm before the Re formation, is revived in all its vigour. '¦'¦ Siquis putaverit se a proprio Metropolitano gravari, apud Primatem dioeceseos, aut penes Universalis Apostolicce Ecclesice Papam judicetur." (Decreti Pars II. Causa ILQu, VL s, 15,) Mr. Barnes, the Registrar of the Diocese of Exeter, in a very valuable notice of the Papal Brief, has re marked upon the absence of any provision in the Brief for an appeal to the Pope, but he has probably omitted to take into consideration, that if the Canon Law is introduced into England in aU its completeness by the Brief, the appeal to the Pope foUows, as part of that law. Dr. Wiseman, in his Appeal, has observed, that the Canon Law was inapplicable under Vicars I 4 120 USURPED AUTHORITY OF THE POPE. Apostolic ; in other words, that the authority of the Pope under the system of Vicars Apostolic was quite a distinct authority, both in principle and in prac tice frora that which was claimed and used before 1 Eliz. c. I., and which was declared in 1846, by 9 & 10 Vict, c, 59., to be subject to the same consider ations of law which attached to it in 1558 by the statute of Elizabeth. The nature of the power claimed by the Pope be fore the Reformation, and which it is still contrary to law in England to maintain and defend, is the power asserted by implication in the present Brief — " to dis pense with all huraan laws, uses, and customs of all realms in all causes which be called spiritual." The Brief, for instance, specially abolishes all rights and priAdleges of the ancient Sees of England, and of all Churches whatsoever in England, by whatever security established. Dr. Wiseman very justly observes, " every official document has its proper forms, and had those who blame the tenor of this, taken any pains to examine those of Papal documents, they would have found nothing unusual in this." But it is precisely because this Brief runs in the usual form in which Papal Briefs were used to run in England before 25 Hen, VIIL, and in which they still run in those countries where the Exequatur of the Crown is a preliminary condition of their publication, that the Brief is not adraissible within the realras of England, and it is precisely because the Pope exercises the power which was usurped and practised by his predecessors of dis pensing with all human laAvs Avithin this realm, that it is unlawful for a subject of her Majesty to obey the Brief The Pope, for instance, creates a See of Menevia, or St. Davidis, and creates Dr. Brown, late Bishop of STATUTE OF PETER-PENCE, 121 ApoUonia in partibus. Bishop of St, David's, The law of the land, however, has declared, that it is a rais- demeanour for Dr, Brown to take the narae, style, and title of Bishop of St. David's, not being authorised by law so to do. The Pope, on the other hand, has dis pensed Avith all the rights of the ancient Sees, by whatever security established ; and Dr, Brown puts the Brief into execution by taking the title of the See, in defiance of the law of the land. Now let it be always kept in mind, that the Pope did not give to the Bishops of the English Church their terapo ralities when he issued his Briefs before the reign of Henry VIII, to confirm their election. The terapo ralities were a civil accident of the Sees, into which they were put in possession by an act of the CroAvn, after their consecration had taken place at the hands of the Metropolitan in England, Neither did the Pope give to the Archbishops their teraporalities when he sent thera the pallium. The Crown in their case also was the fountain of teraporal wealth. It was not therefore in any way by reason of tempo ralities being connected with the Sees of the English Bishops, over whom the Pope exercised ecclesiastical jurisdiction before the Reforraation, that the Pope was held to claim and use an usurped authority; it was not in temporal raatters, but in causes which be called spiritual, that his power to dispense with the laws of the reaira was disputed by the Crown of England, and ultiraately declared to be unlawful. The statute concerning Peter-pence and dispen sations (25 Hen. 8. c. 21.) recites, that the Pope was to be blamed not merely for the premises recited in the preamble, but "for his abusing and beguiling your subjects, pretending and persuading them that he hath power to dispense with all human laws, uses. 122 THE PAPAL DILEMMA. and customs of all realms in all causes which be called spiritual, which raatter hath been usurped and prac- tised by hira and his predecessors for many years in great derogation of your Imperial Crown and au thority royal, contrary to right and conscience." We have here a clear exposition of the usurped au thority of the Pope as it had been practised before this Statute — that he clairaed to dispense with the laws of the realm in all causes which be caUed spiritual. It is now contended, that the erection of Sees for Bishops is " an integral and essential part of the ex ercise of the Pope's spiritual authority." Let Mr. BoAvyer's stateraent pass current for argument's sake. The Brief therefore is issued " in a cause which is called spiritual," and it claims to dispense with the law of the land with regard to the title of Bishop of St. David's. If this be not that power of the Pope which her Majesty's subjects on their allegiance are bound not to maintain, it is difficult to understand what is the power which 9 & 10 Vict. c. 59. declares to be still forbidden, as used of old by the Pope before the reign of Queen Elizabeth. For the Pope has placed himself in this dilemma : the erection of a Bishop's See is either a spiritual matter, as Roman Catholic writers contend, or a tem poral raatter, as English lawyers say. If it be a temporal matter, the Pope clearly cannot execute it within the realm of an independent sovereign with out the consent of that sovereign ; if, on the other hand, it is a spiritual matter, he claims to exercise a power to dispense with a law of the realm "in causes which be called spiritual," and that power is expressly declared to be unlawful for the Roman Catholic subjects of her Majesty to carry into effect within her Majesty's dominions. It will be seen, on referring to the Appendix, that LIMITATION OF THE EARLY BRIEFS. 123 the Briefs by which the offices of Archpriest and Vicar Apostolic are instituted, were addressed to the individual Roraan Catholic priests upon whora the offices were respectively bestowed ; that in the Brief addressed to the Archpriest there was a special pro vision, that it should cease to be valid after the king dom of England should have returned to the unity of the Roman Church and been publicly and duly reconciled. There was thus, no pretension in this Brief on the part of the Holy See to deal with the realm of England as an integral part of the Roraan Church. Further, in the Briefs, which were addressed to Dr. Bishop and Dr. Richard Sraith, there was a special reference to the faculties granted to the Arch priests, and an express declaration that the Vicars Apostolic were reraovable at the pleasure of the Holy See. Again, the Apostolicura Ministeriura of Benedict XIV. was addressed to the Vicars Apostolic, the Secular and Regular Priests, the Apostolic Mis sionaries of the Anglican Missions. On the present occasion, we find that a Brief has been issued " ad perpetuam rei memoriam," reuniting the kingdom of England to the Holy See, and re establishing in that kingdora " according to the Com mon Law of the Church, a Hierarchy of Ordinary Bishops, deriving their titles from Sees constituted by the present Letters ;" and it is forraally recited, " that it has been granted* to the insufficient merits of the Pope, to renew episcopal Sees in England pre cisely as St. Gregory the Great in his age accom- • " Nobis etiam meritis adeo imparibus datum nunc est epi- s<3opales Sedes in Anglia renovare, prout ille cum summa Ecclesiae utilitate aetate sua perfecit." All annalists agree, that the express consent of King Ethelbert was obtained by Augustine, as a preli minary measure. 124 COMPREHENSIVENESS OF BRIEF OF P. PIUS IX. plished it," The Roman CathoHc mission in England is thus brought to an end, and the " form of ecclesias tical government has been restored in England after the mode in which it freely exists amongst other nations where there is no peculiar cause why they should be ruled by the extraordinary ministry of Vicars Apostolic." Let us for a moment consider the aspect which an analogous proceeding in civil matters would present. The subjects of the Christian powers of Europe, who are resident in the Ottoraan dominions, are, for the most part, under the temporal authority and control of the respective Chiefs of the Missions, or the Consular agents of their respective Governments, resident in various parts of the Ottoman dominions, as the case raay be, who exercise a perraissive jurisdiction over thera in civil raatters ; the law of the land being held to be inapplicable to the settlement of many ques tions which may frora tirae to tirae arise amongst Christians, Let us suppose that one of the sove reigns of Europe who claira to inherit the Crown of Jerusalem — and there are not fewer than five crowned heads who bear the title of King of Jerusalem on their coins — were to issue a Commission to the effect, that, as the number of his subjects was increasing daily in Judaea, he had thought that the time was come when the forra of governing them through the extraordinary ministry of the Mission should cease, and the form of ordinary civil goA^ernment according to the common Law of their own country should be established. Let us suppose still further, that, in accordance with this coraraission, a Viceroy of Jeru salera, with an array of executive officers, should be sent forth ; that they should land in the country, and issue proclamations announcing that Judsea was once more restored to Christendom, and that they had THE KING OF JERUSALEM, 125 taken upon theraselves their office under the Com mission of their Sovereign. Let us also suppose that the authority asserted in these proclamations was without personal limitations, and as full and compre hensive as could be asserted after a formal cession of Judaea on the part of the Ottoman Porte to the soi-disant heir of the King of Jerusalem, Let us sup pose all this to have been carried into execution A\dthout the consent of the Ottoman Porte ; and that in answer to the remonstrance of the Ottoman Porte, it should have been said, that the authority clairaed by the heir of the King of Jerusalem was a purely voluntary authority ; that it was only over the minds, not the persons, of those who were resident within the dominions of the Sultan, that any power was intended to be exercised ; that every commission of a Christian King had its proper forra, and that had the Sultan who blamed the tenor of the commission just issued, taken any pains to examine the tenor of the com missions of Christian Powers, he would haA^e found nothing new and unusual in the form of that which he objected to. So far from such an answer founding a justification for the proceeding, it would rather aggravate the outrage ; and the Sultan would have every reason to conclude, that there " was a pretension to sovereignty over his realm, and a claira to sole and undiAdded sway;" and he would be justified in resisting toJ;he utraost such an encroachment on his rights of sovereignty, and such a departure from received prac tice. It is not sufficient to say, in reply to such an imaginary case, that there is no parallel between temporal and spiritual matters, if there should happen to be a parallel between thera in respect of an in fringement of the law of the land, and if that in fringement be inconsistent with due respect to those attributes of sovereignty which appertain to the Crown 126 THE SYNOD OF THURLES. of an independent Prince. The Holy See may, of course, say, that it is not bound, as a Foreign Power, by the Municipal Law of England ; but if its pro clamations hurt the sovereignty of the British Crown, the Holy See, for all purposes of redress, is not out of the reach of the sarae arguraents which it is customary to address to other Foreign Powers, who violate the received practice. In order to test this principle, let it be applied to an extreme case. Under the system established by the present Brief, it is competent for the Pope to lay the kingdom of England under an Interdict, which the Roman Catholic Clergy, though subjects of her Majesty, would be ecclesiastically bound to execute, as they are henceforth made subject to all the regulations of the Coramon Law of the Roman Catholic Church, But the Crown of Eng land could not ignore such an application of so-called spiritual authority on the part of the Pope to matters, which the law of the land should hold to be of a tem poral character, in the nineteenth, any more than in the fifteenth century. Let us suppose that the Rescripts of the Pope, which have been issued in accordance with the resolution of the Synod of Thurles, should not be obeyed in Ireland, and that it should be in con templation to lay that kingdom under an Interdict, and so constrain its Roman Catholic population to withdraw their children from the national schools; would not the Crown of England be as much entitled to exercise its rights of sovereignty in preventing the publication of the Interdict, as the Crown of France was in the time of its Parliaments ? and would not the issuing of such an Interdict constitute a casus belli as much in the nineteenth century as in the fifteenth, although the interdict might be spiritually operative only upon a third of the population of the British ANOMALOUS CONDITION OF IRELAND, 127 Islands ? Yet, if the doctrine is to prevaU, that re ligious toleration implies the absence of all interference on the part of the State in " matters which are called spiritual," the action of the Crown of England is paralysed by religious toleration, whilst the action of the Crown of France remained unfettered in the pre sence and in despite of an Established Church. But it is said that the case involved in the present Brief is concluded against England by reason of the circumstances of Ireland, and that the same proceed ings must be tolerated in England, which are tolerated in Ireland, It is said also, that in Ireland the law is systematicaUy violated, and that this has been irarae- raorially done Avithout let or hindrance. Lord St. Gerraans has set forth, in a very simple form, the diffi culties which suggest themselves under this head, and which deserve a more particular examination. In the first place, then, it may be observed, that Ireland is pre-eminently the land of anomalies. Dr. Cullen, for instance, in the very document in which he inculcates loyalty to the CroAvn, commits a flagrant violation of the law of the land, by assuming the title of an Archbishop of the Established Church of Eng land and Ireland. Dr, Cullen may, indeed, cite the precedent of Richard Creagh, consecrated Archbishop of Armagh by Pius V,, as far back as the reign of Queen Elizabeth, although that See Avas already filled by Dr, Loftus, the Primate of the Established Church ; and he may point to a long series of Bishops in Ireland created by the Pope's authority, and contend that the governraent of the Roraan Catholic Church by Titular Bishops in Ordinary has never been practically inter- raitted in Ireland, although it has been totally aban doned in England. Lord St. Germans may also be quite correct in stating, for the subject must have been peculiarly within the knowledge of the Secretary for 128 TITULAR BISHOPS OF IRISH SEES. Ireland, that the appointment of Bishops with terri torial titles in Ireland has been iraraemorially practised in that country without let or hindrance. But these, and sirailar arguraents, instead of establishing a prece dent for England, seera rather to point in another direction. The ancient titles, for instance, in Ireland, have been habitually usurped, in spite of the laws against recusants ; and the Pope has been accustomed to ap point Titular Bishops to Irish Sees frora the reign of Queen Elizabeth. These Bishops have thus the sanc tion of custom and usage long prior to the Act of Union, and the Notizie of Rome furnish a long cata logue of them. They were, however, for the most part resident out of the Queen's dominions, and dele gated their authority to ordinary Priests as their Vicars-general, Such, however, has not been the case Avith England. The Sees of the English Church have never been fiUed with Titular Bishops of the Roraan Church ; nor has the Pope ventured to erect new Sees within the realm of England until the present moment. It is said, in deed, by Dr, Wiseman, that the Warden who has governed the tribes of Galway in spiritual matters from tirae iramemorial, was created a Bishop in 1831, when the Wardenship was converted by Pope Gregory XVI. into a Bishopric, This may have been done secretly in a corner of Ireland, without any remonstrance at this exercise of Papal power, but the present raeasure is " proclaimed from the house tops I " The laAV of the land is, in this case, not evaded, but defied! and a Cardinal Prince of the Roman Court sets up his Archiepiscopal throne over against the Sanctuary of the Legislature, and it is now gravely contended, that the English nation is not at liberty POLICY IN IRELAND, 129 to reraonstrate, because the Irish nation has acqui esced in a wrongful act of Pope Gregory XVI. It is not necessary to disapprove of the generous spirit of toleration Avhich the legislature has of late years exhibited towards the Roraan Catholics of Ire land, in order to justify a resolution to repel a whole sale act of aggression upon England, On the other hand, it is not necessary to bring down England to the same level with Ireland in order to maintain the integrity of the United Church of England and Ire land, The distinction has, in a previous place, been pointed out between the several conditions of toler ation, protection, and establishment. These distinctions do not rest upon theory, but upon facts. There are three separate conditions in which the Roman Catholic Communion raay be studied as existing in connection Avith independent sovereign states. In the first place, it raay be under the superintendence of Bishops in partibus, as Vicars Apostolic of the See of Rorae, as in Sweden, Denmark, and Saxony. This condition is one of religious toleration, under which the exercise of religion is free, and perfect liberty of conscience is perraitted in matters of doctrine, but positive restric tions are imposed by the law of the land in matters of discipline. In the second place, it may be under superintendence of Bishops in Ordinary, as in Bel gium, and in the Rhenish Provinces of Prussia, and in Poland, and in Little Russia. This condition is one of ecclesiastical protection, under which perfect liberty in raatters both of doctrine and discipline is enjoyed with in the general limits of the law of the land ; but the law of the land stops short Avith the bare recognition of this liberty, and does not aid the law of the Church by the process of the civil courts. Thus in Belgiura, the laAV of the land does not aid the foreign law of the K 130 STATEMENT OF THE QUESTION. Roman Catholic Church in preventing priests from marrying ; on the contrary, the tribunals have ex pressly declared such marriages to be lawful in Bel gium.* It raay, thirdly, be under the superintendence of an Episcopate forraally recognised in its collective capacity by the State, and Avhose decrees are carried into execution, if resisted, by the process of the civil courts. This is the condition of an Established Church. The Orthodox Greek Church, for instance, is the Esta blished Church in Russia ; the United Greek Church, i. e. the Church in union with the See of Rome, is a protected Church. Its local Sees are recognised by the law of the land, but the sanctions of its law are not, enforced by the tribunals of the State, Although the above sketch of the peculiar features of each condition is very imperfect, it may suffice to establish the fact of a real diversity in the three con ditions. The practical question resulting from their acknowledged existence seeras to be this : whether the Pope can, motu proprio, without the consent of the Sovereign of the land, convert the condition of toler ation into that of protection. It raay be thought, at first sight, that such is not a fair stateraent of the question involved in the pre sent raeasure of Pope Pius IX, ; that the law of the land is not ashed, as it were, to recognise the act of the Pope, but that the whole proceeding merely con cerns the forum conscientice. Now if the proceedings of his Holiness involved no violation of the law of the land, there might be some force in the argument, because it is possible that the political institutions of a particular country raight dispense with the ob servation of the ordinary rules, which have hitherto * Thus the marriage of an Ex-Cure was celebrated civilly at Gand, on May 29, 1850, BISHOPRIC AT ST, GALL, 131 been observed by the Pope in regard to his dealings with other sovereign states of Europe, The circum stance of religious separation cannot affect the ques tion ; for even within the last four years the consent of the governraent of the Protestant Canton of St, Gall, in Switzerland, was held to be a necessary con dition to enable Pope Pius IX. to erect a See for a Roman Catholic Bishop in the capital of that Canton. But the institutions of England, in the first place, do not dispense Avith the ordinary rules : so far from it, that the execution of the Brief by Avhich the change has been effected is itself a heinous offence against the Statute Law ; and further, a provision of the Brief itself entails a positive breach of the laAV of the land. Now these are matters which concern the forum externum, and no plea can avail to bring them within the legitimate domain of conscience. They are, in the language of the statute of Henry VIIL, con trary to right. And here again it may be observed, that the cir cumstances of Ireland form no precedent for England, In Ireland there has always been a Roman Catholic Church ; in England there has been ever since the Reforraation a Roraan Catholic Mission. In Ireland there have ahvays been local Roman Catholic Bishops ; in England there have been no local Bishops, but Vicars Apostolic. In Ireland the Pope has always appointed to the ancient Sees; in England he has established ncAV Sees. In Ireland the Canon Law has always been in force amongst the Roman Catholics ; in England it has been re-introduced by the Brief of Pope Pius IX. But it may be said that the law may ignore the Brief, and the measures consequent on its publication. If the law were perfectly silent as to Papal Rescripts K 2 132 ACT OF UNION WITH IRELAND. and Bishops' Sees, the tribunals raight remain mute, and so far ignore all the facts connected with and consequent on the pubHcation of the Brief. But the law cannot ignore its own violation, any more than a man can ignore his own death. It raay be a question whether the state of the law is perfectly satisfactory, whether sorae change in its provisions raay not be de sirable, or even absolutely necessary ; but the Judges of the land cannot refuse to take cognisance of the law, if the question of its violation should be raised in Westrainster Hall. In Ireland, indeed, an established custom, may be set up against a positive law ; and although no custom can set aside a statute, still there is an equity of con struction in cases of conflicting sanctions, which the comraon sense of mankind inclines to uphold. But where the established custom has been not contrary to, but in accordance Avith, the Statute Law, as in England, what equity of construction can be invoked to palliate the execution of the present Brief ? But it is said, that if what is permitted in Ireland is prohibited in England, the unity of the Church of England and Ireland will be thereby weakened. Now the Act of Union between England and Ireland (39 & 40 Geo. 3. c. 67.) provides, "That it be the fifth Article of Union, that the Churches of England and Ireland, as noAv by law established, be united into one Protestant Episcopal Church, to be called the United Church of England and Ireland, and that the doctrine, Avorship, discipline, and govern raent of the said United Church shall be, and shall reraain in full force for ever, as the same are now by laAV estabhshed for the Church of England ; and that the continuance and preservation of the United Church, as the Established Church of England and Ireland, PRINCIPLE OF STATE-ESTABLISHMENT. 133 shaU be deeraed and taken to be an essential and fundamental part of the Union: and that in like manner, the doctrine, worship, discipline, and govern ment of the Church of Scotland, shall reraain and be preserved as the sarae are now established by laAv, and by the Acts for the Union of the two kingdoras of England and Scotland." The substance of this article refers mainly to the internal constitution of the Protestant Church of Ireland, and establishes a perfect identity of doctrine, worship, discipline, and governraent, between the tAvo Churches, uniting thera into one Protestant Episcopal Church : it further provides that it shall be a funda mental principle of the Union to maintain the United Church as the Established Church. In other words, the State is bound to aid the law of the Church, whenever the process of the civil courts should be required. Such is the only necessary principle involved in State-Establishraent. The temporalities are accidents, which vary in their character in diffe rent states ; but wherever the Church is established, there indeed its laws are maintained by the secular arm. These facts, it must be repeated, are matters of history, not of speculation. Further, if we examine the condition of things in such of the great European states as present any features of similarity to the circumstances of the British Erapire, we shall find, that it has not been thought necessary in Russia, for instance, orin Prussia, or in Denmark, to assimilate the heart of the empire to the extremities, because it has been found im practicable to change the condition of the extremities. On the contrary, Avhere the conditions have been dif ferent, it has been thought reasonable that the sys tem of legislation should be accommodated to those K 3 134 THE AUSTRIAN DOMINIONS. conditions. Thus, in the dorainions of the Em peror of Austria, before the Charter of 4th of March, 1849, we find in the Tyrol* the Roraan CathoHc Church was estabUshed to the exclusion of aU others ; in Styria and Carinthia the Roraan Catholic Church Avas dorainant, but the Protestant communions were tolerated ; in Hungary the Roman Catholic Church was the dorainant Church of the kingdom, but the Greek and the Protestant Churches Avere protected ; in Transylvania the Roman Catholic and the Reformed Churches Avere all alike protected, whUst the Greek Church was tolerated. It is false statesmanship to ignore facts, and it is equally false statesmanship to overlook practical diversities of condition in the sub ject-matter which invites legislation. * It may be within the recollection of the reader, that the inha bitants of certain villages in the Zillerthal, in the Upper Tyrol, renounced communion with the Roman Catholic Church, and were obliged, by the laws of the Tyrol, to emigrate. They were offered, by the Emperor Francis, an asylum in other parts of the empire, where the Roman Catholic Church was not exclusively established, but they preferred to emigrate into Prussian Silesia. The cause of their separation from Rome was singular in itself, whilst it illustrates in a remarkable manner the part, which the Pope per sonally filled in the religious system of a simple-minded pea santry. They had been led to adopt the extraordinary notion, that the reigning Pope was not the true Pope, for that Pius VII. was still alive, and in a dungeon at Rome. The Emperor listened with great kindness to their representations, and sent a deputa tion of the chiefs of the villages to Rome, in order to satisfy them selves that their scruples were unfounded. On their return, the deputies had an interview at Vienna with the Emperor, when, in answer to his inquiries whether they had seen the actual Pope, and satisfied themselves that he was the true Pope, they replied that they had seen him, but that he was not the true Pope ; for that the true Pope, as the successor of the Apostles, knew all languages, whereas the Pope, whom they had seen, could neither speak nor understand German, and was obliged to make use of an interpreter ! ROMAN CATHOLIC CHURCH IN IRELAND, 135 It cannot be denied that the Roraan Catholic Church in Ireland has, by custom, a constitution in raany re spects analogous to the condition of a protected Church by the side of an Established Church, It is adraitted also, on all sides, that this position of the Roman Ca tholic Church in Ireland is opposed to the Statute Law; and upon the strength of such a state of things in Ire land, Avhere the law has been from time imraeraorial systematically violated, either from the force of the national character, or the weakness of the executive Government, it is contended that the Crown raust subrait to a similar violation of the law in England, where the law has been from tirae imraeraorial re spected. Surely this reasoning cannot be sound. If it be expedient that the Pope should be allowed to exercise full poAver in England, the laAv at least should be altered, so as not to irapose on those subjects of her Majesty who execute the Papal Rescripts the hard necessity of violating the law of the land. Again it has been said, that if the English nation should refuse to subrait to a sirailar condition of things to that Avhich prevails in Ireland, it would be like the strong raan refusing to share the burden of his weaker corapanion ; it would be like the man who lives under a roof of slate refusing to lend a helping hand to ex tinguish the flames in his neighbour's roof of thatch. Such, however, is not a correct view of the case. It would be far more just to liken the resolution of the English nation to the man who does not hesitate to extinguish the fire which has reached his own roof, although it raay be irapossible for him to stay the fire which is devouring his neighbour's house. He raay regret, indeed, that his neighbour's house should be devoured by the flaraes, but he Avill at least have suc ceeded in preserving a refuge for his houseless neigh- K 4 136 QUESTION OF PRINCIPLE. hour, instead of both having to seek for shelter in vain araongst blackened waUs and sraouldering rafters. It may be urged, however, that there is a question of principle involved in the maintenance of identity be tAveen the legal systems of England and of Ireland. If this be so, it raust in this case be either a religious or a political principle. If a religious principle is contended for, it is impossible to overlook the all- important fact, that the religious principle was abandoned in 1791 — when religious toleration was granted to the Roman Catholic subjects of her Ma jesty — precisely as it has been abandoned in almost every state of Europe, exclusive of those in the Iberian and Italian peninsulas. But although the religious principle has been abandoned, the question of degree remains open. This indeed is a matter of positive law, and is properly subject to poHtical con siderations. The practice of European states confirms this view. On the other hand, if it be said that a political principle is involved in maintaining an uniformity of legislation in regard to England and Ireland, it is difficult to understand how it has come to pass that uniformity of legislation has been so repeatedly dis regarded. Uniformity has never existed in matters of finance, as Ireland is subject neither to an excise duty, nor to the assessed taxes, nor to the income or property tax, Uniforraity has not been adopted in regard to the Elec toral franchise and the law of Elections, Uniformity has not been kept in vieAv with reference to the Poor- laws and their administration. Uniformity has not been sought in regard to a State-subsidy for the edu cation of the Roman Catholic Clergy of Maynooth, nor with regard to the Regium Donum to the Presbyterian ABSENCE OF UNIFORMITY OF LAW. 137 Clergy of Ulster. Uniforraity has not been raaintained in reference to the systera of national education. The difficulty is far greater to discover in what respects uniforraity of legislation has been observed, than to detect where diversity exists : and in the presence of the prominent diversity to which the instances just cited testify, it would be very unreasonable to contend that any political principle is at stake in refusing to maintain an uniformity of laAV between the two coun tries. On the other hand, if it should be thought ex pedient to raaintain an uniformity of law and practice between England and Ireland, tAVO courses present themselves. It is admitted as a fact, on all hands, that at present, the Statute Law is a dead letter in Ireland. One alternative, therefore, which is sug gested, is, that the executive Government shall ignore the violation of the law in England. In the present case, we may expect that either the traditional reverence of the English people for the law will not tolerate its infringement, or its good sense Avill revolt at allowing an inoperative law to remain upon the statute-book. Besides, the practice of ignoring an open violation of the law is most dangerous in the way of precedent, and is a provo cative to anarchy. The other alternative, which would be far raore worthy of a great nation, consists in repealing the laws which are now systeraatically broken, as involv ing a raatter of detail substantially indifferent, after the principle of toleration has once been conceded. Popery at present, as distinguished frora the Roraan Catholic religion, is in fact an article of contraband, and it is smuggled into the country in defiance of the law. If the State recoils from enforcing the statutory 138 VIOLATION OF THE LAW, penalties against the violators of the law, let the law be repealed, for it has become a scandal. This would be a statesman-like method of deaUng with a difficulty, if it should prove to be of a character that eludes legislation. But the embarrassment which this policy would entail, cannot be overlooked. If there were any definite bounds in the ecclesiastical system of Rome to the Papal authority ; if the system itself Avere not inflexible, and its claims unlimited, nothing Avould be more siraple than to deal with the question in the way of positive arrangement, through the me dium, not indeed of Concordat, but negotiation ; or even irrespectively of any communication with the Court of Rome. But the spirit of the Fa^aej is more ultramontane in proportion as the Holy See finds its position in Europe more isolated, and its claims to enlarge its so-called spiritual circle of activity increase in proportion as its temporal sphere of action becomes restricted, A Pope who is feeble in a temporal point of view, is obliged, ex neces sitate rei, to fall back upon his spiritual power, in order to maintain his consideration, at home as weU as abroad. Hence the necessity which the great Catholic powers have felt to maintain the political independence of the Holy See, as an element in the balance of power in Europe, Hence, when Napoleon proposed to Austria to establish the Pope permanently in France, and provide a dotation for him, the Emperor of Austria replied by a similar offer, on a more liberal scale.* * The importance of being able to deal with the Pope immedi ately, as a sovereign power, in the way of request or remonstrance, is obvious in the case of Roman Catholic powers. England, by persisting so long in ignoring the political power of the Pope, has renounced the use of the vantage position, which other sovereign powers occupy in that respect. QUESTION OF OPPORTUNITY. 139 The following circumstance, hoAvever, which the history of Europe establishes beyond a doubt, must be placed in the opposite scale. Every state of Eu rope, whether in ecclesiastical communion or not in such communion Avith the Holy See, has been forced, at some stage or other of its relations with the Papacy, to raake a stand against its encroachments, and say, resolutely, " thus far shalt thou come, and no further ;" for the Papal power being, according to its own theory, unlimited, knows, in practice, no other bounds than those which are set to it by the civil power. The duty, accordingly, of prescribing limits to its action, must devolve, sooner or later, upon the State in every country. Even in Belgiura, where the constitution has been most carefully and most skil fully adjusted, in order to escape any coUision with the Papal power, the attempt has failed. Austria, it is true, has embarked upon a great experiment, by suspending the " Placet " of the Crown, which the Emperors of Germany, in the plenitude of their greatness as the teraporal stay of the Papacy, dared not hazard. The fruits of this experiraent will not be ripe for many years. The question, therefore, under this head, may re solve itself into a question of opportunity ; and its solution will depend upon the answer to another ques tion — whether the existing restraints upon the action of the Papal power within the realm of England, can be relaxed without immediate inconvenience to the State, and without compromising the result of a future struggle with the Papacy, whenever the neces sity for it shall arrive. On the other hand, it may be said, that the genius of Popery, as distinguished from the Roman Catholic re ligion, is essentially opposed to the spirit of the English 140 PRACTICE IN BELGIUM. constitution, and that they are like diverging rays of light which can never meet. Hence, the policy which counsels further concession to the development of the Papal system in England, raay be likened to the tactics of a general Avho allows his adversary to lead his colurans in safety frora the further bank of the river, in front of his position, across the bridge which separates the two armies, and to deploy them in perfect order on the near bank of the river. The general may justly have confidence in the strength of an entrenched position, and aAvait the assault of the enemy on vantage ground with perfect security as to the result ; but in the raajority of cases, the defence of the bridge raay be an important eleraent of success. Accordingly, in Belgium we find that the State maintains the command of the bridge which separates the province of religion frora the doraain of politics, and resolutely beats back the Papal force, whenever it seeks to effect a passage across it. For instance, when the Roman Catholic Clergy haA^e sought to con trol the exercise of the political franchise by abusing their pulpits to electioneering purposes, the Belgian tribunals have inflicted upon them the penalties of the law imposed upon the political offence. The case of the Cur4 of one of the principal Communes near Brussels may be instanced araongst others, as show ing that the privilege of the pulpit was not allowed by the Courts of Belgium to shelter an act which was not within the true intent of the privilege. Again, several Cur(^s have been sentenced to fines for per forraing the religious ceremony of raarriage before the civil prelirainaries have been complied with, and the sentences have been confirmed on appeal. It is not within the province of this Avork to sug^ gest the course which ought to be adopted on the FEELINGS OF THE ENGLISH NATION. 141 present occasion ; the responsibility of that decision may be allowed to rest with the executive Government, or the Legislature. But thus rauch raay be affirraed, that they cannot both stay their hands. Either the Executive must enforce the law as it stands, or the Legislature raust alter the provisions of the statute- book. The deterraination of this question Avill depend in a great degree on the feelings of the English peo ple. Those feelings have been outraged by the Pope in their raost sensitive quarter, and it is natural that the outrage should be resented. At present, indeed, the voice of the upper classes has been raainly heard ; but if once the fears of the great raiddle class should become alive to the idea that there was any positive danger of the fond dream of the Papacy being realised, — if a religious panic should seize the English nation at large, as on raore than one occasion has happened in forraer tiraes, — if it should be thought for a moment likely to corae to pass in England, that the Director Avould succeed in wresting from the father the educa tion of his child, and the Confessor in intercepting from the husband the confidence of his Avife, and that the family which at present exists in its integrity almost exclusively in England, and which is the sheet anchor of the State, Avould be broken up and disappear in the manner in which it has perished, as an institu tion, in most Roman Catholic states, — a great revulsion Avould in all probability ensue in the tolerant spirit of the English people. No greater misfortune could befall the Roraan Catholics in England, than that the enterprise of Cardinal Wiseman should be attended with some notable success at the outset. The insti tutions of Rorae are totally opposed to the manners of the people of England ; and when individuals attri bute the success of the Reforraation in England to 142 TREATMENT OF THE POPE. causes of State poHcy, they forget that in reHgion, as in poHtics, the same maxira holds good — ylvovrai ^h al a-Toia-sig ou wefi [xtxpcov, aXk^ sk iJ.t>cpwv, a-Tatna.^ova'i 8s TTsp) /AsyaAo)!/. A spark of fire will serve to kindle a conflagration that shall burn a city down to its foun dations, but if the raaterials npon which it faUs are not inflararaable, the spark will fall harraless. It is to be hoped that the occasion for a reaction may never arise. England at present stands purely on the defensive. We have an established order of law, which has been violated in England in obedience to a Foreign Power. That Power, being a Foreign PoAver, raay have been raisled by wrongful information as to the state of the law in England. It is right that the truth should be brought to its cognisance, in the usual raanner in which Foreign Powers receive information as to the municipal law of other sovereign states. That Foreign Power has further departed frora received practice. It is fair again to suppose that it may have been misled in this respect by some misinformation as to the state of the laAV in England. This might also be a subject of diplomatic represen tation to the Court of Eome, for it raust be presumed that the Pope is accessible to truth and reason. The new dignitaries, who are the subjects of her Majesty, stand in a different category. They seem disposed to contend that they have not violated the law of the land. This fact raay be at once ascertained by a reference to Westminster Hall. If it should be held by the judges of the land that no violation of the law has been coramitted, cadit qucestio. If, on the other hand, the law should prove to be obscure, it should be cleared up : if technically inoperative, it should be formally repealed. There can be no greater scandal to a State, than to have laws in its statute-book CIVIL AND RELIGIOUS LIBERTY, 143 Avhich speak only to the ear, or are too obscure to be obeyed. But this may not be assumed with respect to any law, until its authorised interpreters have pronounced it to be unintelligible. If, on the other hand, the law shall be found to speak distinctly and clearly, there is no alternative but obedience to it. But its present harshness should be accommodated to the milder manners of the age. The law as to Papal Rescripts, which, in its present form, Avould con tinue to be inoperative, should be modified, so as to be practically available to check any abuse of the spirit ual power of the Pope to teraporal purposes, and when so modified, it should be inflexibly maintained. The friends of civil and religious liberty Avill probably be divided in opinion as to the measures to be pursued. Some Avill be anxious that the arm of the law should not be put forth on the present occasion ; but others, whose sincerity is beyond ques tion, and who knoAV that the raaintenance of civil and religious liberty in England rests upon the sanctions of the law, may reasonably apprehend, that if the law falters on the present occasion, before a power which is the inflexible adversary of civil and religious liberty, the sanctions of civil and religious liberty may themselves be endangered, and that the modera tion of feeling, and equity of judgraent, which has hitherto characterised the English people, will not be preserved under the aggravations of further outrage. The Continent of Europe has been, within the last two years, convulsed from one end to the other. From the Tiber to the Danube, from the Seine to the Eyder, the triumph of self-will, under the form of anarchy, has been momentarily coraplete. The Papal Tiara has bowed its head to the storra equally with the Iraperial Cro-wn. But the tempest has scarcely 144 THE ROMAN CATHOLIC LAITY. passed away, ere the spirit of self-AviU reappears under the garb of absohitisra. No sooner does the Roman Pontiff resume possession of his tiny sceptre by the aid of a foreign poAver, than he casts the torch of dissension across the straits Avhich separate one of the few havens of political repose from the re gions of political turmoil ; and he sends a messenger of discord, with instructions to brave the authority of the law in a country, where respect for the authority of the law is enshrined in the hearts of the people. The conduct of the Holy See is one of those moral anomalies, which perplex the philosopher to explain their cause, whilst they embarrass the statesman to control their effects. It is to be hoped, indeed, that the arrow of civil discord has fallen wide of the mark on this occasion. The spirit of the Roman Catholic laity is equal to the crisis : they know and feel that it is not the cause of their religious liberties, but the cause of the Papal Power, which is staked upon the present move ; and their natural leaders have spoken forth in language Avhich argues a heartfelt allegiance to their sovereign and her laws. There is no united political action, even amongst the Roman Catholic Clergy, against her Majesty's Government, It Avould be a slander on them as men and citizens to assert this. The golden words of the Fathers of the Fourth Council of To ledo find a response in many breasts : " Quicunque a modo ex nobis, vel cunctis Hispani^e populis, qua- libet meditatione vel studio sacraraentum fidei suse, quod pro patriae salute, gentisque Gothorum statu, vel incolumitate regice potestatis poUicitus est, violaverit, anathema sit, atque ab Ecclesia Catholica, quam per- jurio profanaverit, efficiatur extraneus, et ab omni comraunione Christianorum alienus." SPIRIT OF THE ENGLISH PEOPLE. 145 Many of the Irish Roman Catholic Bishops are friendly and useful to her Majesty's Government, and are only prevented by fear from being more so. Of late the machinery of Synods has been introduced in Ireland, with a view to stifle all independent action of the Bishops ; and a Rescript has been sent from the Prefect of the Propaganda at Rome, enjoining that these sacerdotal asserablies shall be held in due order, "otherwise difference of opinions will daily increase," In like raanner, the Brief of Pope Pius IX. has been issued expressly in order to enable a Ro man Cardinal to organise the raachinery of a Synod in England ; and the provision in the Brief, by which the Pope reserves to himself the power of creating more Archbishops and more Bishops, intimates a further extension of the system. It is for England to take counsel where she shaU raake a stand. The Roman Catholic Relief Act has been clearly infringed with respect to the title of the See of St. David's. The State cannot safely ignore that fact. The point of the Papal wedge has been inserted : another Brief may drive it home, and the laws of England will then be scattered to the Avinds. Whatever may be the decision on the present occa sion of those, to whose hands the destinies of England are entrusted, one thing is certain, — that England must not enter upon a struggle with Rome in haste, or with imperfect preparation. England must not carry on " a little war" even with such an enemy as the Pope. The Bill of Rights, the Act of Settlement, the Coronation Oath, alike attest the resolution of the English nation that their land shall reraain a Protestant land. If, in consideration of these and other irapregnable bulwarks, any of the outworks throAvn up in 1829 should be deemed worthless, and 146 THE RELIGIOUS ORDERS. it should be held to be a waste of power to main tain them, it must not be forgotten that the spirit of the garrison has been roused by the assault of the eneray, and it may prove a difficult task to persuade it to abandon the defence of the outworks, unless some measure of a coraprehensive nature shaU be proposed, which shall place it in security from future aggression. England has ample resources to bring the Papacy to terms, if her existing laws should only be enforced. It seems to be forgotten, that the whole machinery of the Religious Orders, upon which the Pope must rely for carrying out his scheme of propagating his power, so as to fulfil the pompous promise of his Brief, is proscribed within the United Kingdom, by the very law which secures to the Roman Catholic laity their civil and political liberties. Precautions were thus taken in 1829, that no ex post facto law should be required in that respect to authorise the CroAvn to repress any aggression of the Papacy upon the Protestantism of England through these organs. The law, however, has hitherto remained a dead letter*, owing to the mode prescribed for recovering the penalties. Two centuries have now elapsed since Milton penned his masterpiece, the " Areopagitica." It was written upon the wreck of a Throne, and amidst the ruins of a Church. Those results had been accomplished by a re ligious reaction of the English people against measures which tended, as they believed, to deprive them of their birthright in the Reformation, The same spirit burst forth at a later epoch, under similar provocation, and sealed the fate of an entire dynasty. Can it be * It appears from the Catholic Directory for 1851, that there are seventeen Religious Houses of men in England alone. MILTON'S "areopagitica," 147 doubted for a moment what the result of the struggle against Rome must be, if the moment shall arrive for England to put forth aU her strength ? " Methinks I see in my mind a noble an'd puissant nation rousing herself like a strong man after sleep, and shaking her iuAdncible locks : methinks I see her as an eagle muing her mighty youth, and kindHng her undazzled eyes at the full midday beam, purging and unsealing her long-abused sight at the fountain itself of heavenly light ; while the whole noise of timo rous and flocking birds, with those also who love the twilight, flutter about, amazed at what she means, and in their envious gabble would prognosticate a year of sects and schisms," APPEI^DIX. SANCTISSIMI DOMINI NOSTEI PII DIVINA PROVIDENTIA PAPAE IX. LITTEEAE AP08T0LICAE QUIBTJS HIEKAECHIA EPISCOPAIIS IN ANGLIA EESTITUITUE. ROMAE typis SACRAE_ CONGEEGATIONIS DE PEOPAGANDA FIDE MDCCCL. LETTEE8 APOSTOLIC OF OUR MOST HOLY LORD PIUS IX. BY DIVINE PROVIDENCE POPE, BY WHICH THE EPISCOPAL HIEEAECHT IS EESTOEED IN ENGLAND, ROME: FEOM THE PEESS OF THE SACEED CONGREGATION FOR THE PROPAGATION OF THE FAITH. MDCCCL. PIUS pp. IX. AD PERPETUAM REI MEMORIAM, Universalis Ecclesiae regendae potestas Eomano PontificI in Sancto Petro Apostolorura Principe a Domino Nostro Jesu Cliristo tradita praeclaram illam in Apostolica Sede sollicltiidinem quacumque aetate servavit, qua Eeligionia Catholicae bono ubicumque terrarum consuleret, ejusque incremento studiose provideret. Id autem Divini ipsius fundatorls consllio respondit, qui capite constitute Ecclesiae incolumitati usque ad consummatlonem saecull singular! sapientia prospexit. Pontificiae hujus sollicitudinis fructum sensit una cum aliis populis Inclytum Angliae Regnum, cujus historiae testantur Chrlstlanam Eeliglonem vel a primis Ecclesiae saeculls in Brltannlam invectam esse, atque in ea delude plurlmum floruisse ; sed medio circiter saeculo quinto, posteaquam Angli et Saxones In eam Insulam advocati sunt, non modo publlcas Illlc res, sed etiam Religlonem maximis fulsse detrlmentis affectam. Constat vero simul Sanctlssi- muin Praedecessorem Nostrum Grefforlum Magnum missis primum cum soclls Augustine Monacho, atque ee post- medum alllsque plurlbus ad Episcepalem Dignitatem evectis, additaque lis magna Presbyterorum Monachorum (a) copia, Angle-Saxones adduxisse, ut Chrlstianam Keliglenem am- plecterentur, et virtute sua effeclsse, ut In Britannia, quae Anglia etiam appellarl coeplt, Catholica iterum restltuta Tindique fuerit, et amplificata Keliglo. Sed ut quae sunt PIUS pp. IX. PERPETUAL REMEMBRANCE OF THE THING. Ti-iE power of ruling the universal Church, cemmltted by our Lord Jesus Christ te the Eeman Pontiff, in the person of St, Peter, Prince ef the Apostles, hath preserved, through every age. In the Apostelic See, that remarkable solicitude by which it censulteth fer the advantage ef the Cathello religion in all parts ef the world, and studiously provldeth for its extension. And this cerrespendeth with the design ef Its Divine Founder, who, when he ordained a head te the Church, provided fer Its safety, by his excelling wisdom, to the end ef time. Amongst other nations the famous realm of England hath experienced the effects of this selicitude on the part of tbe Supreme Pontiff, Its historians testify, that In the very earliest ages ef the Church the Christian religion was Introduced into Britain, and subsequently .flourished greatly there; but about the middle ef the fifth century, after the Angles and Saxons had been Invited Into the Island, net only the affairs of the nation, but religion Itself, suffered most grievous Injury. But it Is well known that our most holy predecessor, Gregory the Great, sent first Augustine the Monk, with his companions, who subsequently, with several others, were raised to the dignity ef bishops ; and a great company of Benedictine Priests (a) having been sent to join them, the Angle-Saxens were brought te embrace the Christian religion ; and by his Influence it was brought to pass, that In Britain, which had now come to be called Eng land, the Catholic religion was every where again restored and extended. But to recount more recent events, the history a 3 vi PII PAPAE IX, LITTERAB APOSTOLICAE. recentiora commemoremus, nihil In tota Anghcani schismatis, quod saccule declme sexto excltatum est, historia manifestlus arbltramur, quam Romanorum Pentlficum Praedecessorum Nostrorum Impensam curam, et nunquam Intermlssam, ut Eeliglenl Catholicae In eo Regno In maximum perlculum, et ad extremum discrlmen adductae succurrerent, et quacum- que pessent ratione auxilium afferrent. Quo inter aha spectant, ea quae a Summis Pentlficibus, vel Ipsis mandantl- bus, atque prebantlbus prevlsa gestaque sunt, ut In Anglia haudquaquam deessent, qui Catholicarum Illlc rerum ciiram susclperent, itemque ut Adolescentes Cathollcl bonae indolis, ex Anglia in continentem venlentes, educarentur, atque ad sclentlas praesertlm Eccleslastlcas diligenter informarentur ; qui Sacris subinde Ordinlbus inslgnlti et In patrlam reversi sedulam navarent operam popularlbus suls Verbl et Sacra- mentorum ministerlo juvandis, et verae fidei ibidem tuendae ac propagandae. Verum ea sunt fertasse clarlora, quae Praedecessorum Nestrorum studium resplclunt, ut Angli Cathollcl, quos tam atrex, et saeva tempestas Episcoporum praesentla, et pastorali cura prlvaverat, Praesules Iterum haberent Episcopall charactere Inslgnitos, Jam vero Gre gorii XV, Lltterae Apostollcae inclpientes "Ecclesia Ro- mana " datae die XXIII, Martil An. MDCXXIIL osten- dunt, Summum Pontlficem, ubi primum petult, Gulllelmura Bishoplum censecratum Episcopum Chalcedonensem cum satis ampla facultatum copia, et cum Ordlnarlorum propria potestate ad Angliae, et Scotiae Catholicos gubernandos destinasse ; quod postea Urban us VIII., Blshoplo mortuo, missis ad RIchardum Smith slmllls exempli LItteris Aposto- licis die IV. Eebruarli An, MDCXXV, renevavit, Epis- copatu Chalcedenensl, et iisdem, quae Blshoplo concessae fuerant, facultatibus Smlthlo tributls. Visa sunt in poste- rum, quum Jacobus II, In Anglia regnare coepisset, Catho licae Rehglonl fellclera tempera obventura esse. Hac vero oppertunltate Innecentlus XI. statlm usus Joannem Ley- burnlum Episcopum Adrumetenum totius Angliae Regni Vlcarlum Apostolicum An, MDCLXXXV. deputavit. Quo facto aliis Litteris Apostellcls die XXX. Januarii LETTERS APOSTOLIC OF POPE PIUS IX. Vll of the Anglican schism in the sixteenth century presents ne feature so remarkable as the care unremittedly exercised by the Roman Pontiffs our predecessors te give succour. In its hour of extremest peril, to the Catholic religion in that realm, and by all means In their power to afford it assistance. Amongst other instances of this care are the enactments and previsions made by the chief Pontiffs, er under their direction and approval, fer the unfailing supply of persons to take charge of Catholic interests in that country ; and also for the education of Catholic youths of good abilities on the Continent, and their careful instruction In all branches of theological learning; se that, when subsequently promoted to holy orders, they might return to their native land and labour diligently to benefit their countrymen, by the ministry of the Word and ef the sacraments, and by the defence and propagation of the true faith. Perhaps even more conspieuous have been the exertions made by our predecessors for the purpose of enabling the English Catholics to have superiors Invested with the epis copal character, as the fierce and cruel storms of persecution had deprived them of the presence and pastoral care ef their own bishops. The Letters Apostolical of Pope Gregory XV,, commencing with the words " Ecclesia Remana," and dated March 23. 1623, set forth that the chief Pentifi^, as soon as he was able, had deputed William Bishop, consecrated Bishop of Chalcedon, with an ample supply ef faculties, and the authority of ordinary, to govern the Catholics ef England and of Scotland. Subsequently, on the death of the said WUHam Bishop, Pope Urban VIIL, by Letters Apostohcal, dated Feb, 4, 1625, to the like effect, and directed to Richard Smith, renewed the mission, and conferred on him, as Bishop of Chalcedon, the same faculties and powers as had been granted to William Bishop, When King James II, ascended the English throne, there seemed te be a prospect ef happier times for the Catholic religion. Innocent XI, Immediately availed himself of this opportunity te ordain, in the year 1685, John Leyburn, Bishop of Adrumetum, Vicar Apostolic ef all England. Sub sequently, by other Letters Apostolical, Issued January 30, a 4 viii Pii PAPAE IX. LITTER AE APOSTOLICAE. An. MDCLXXXVIII. editis, quarum Initlum est " Super Cathedram " Leyburnio tres alios Episcopos Ecclesiarum In partibus infidelium titulls inslgnitos Vicarios Apostolicos adjunxit: quapropter Angliam universam, operam dante Apostellce in Anglia Nuntlo Ferdinando Archleplscopo Amaslensi, in quatuor districtus Pontlfex ille partitus est, Lendlnensem scilicet, Occldentalem, Medium, et Septen- trlonalera, quibus omnibus VIcarIi Apostolici cum epportunis facultatibus, et cum Ordlnarll locorum propria potestate praeesse coeperunt. Els autem auctoritate sua, sapientissl- mlsque responsis turn Benedictus XIV. edita die XXX. Mali (An.) MDCCLIII. Censtltutione, quae incipit " Apostoli cum ministerlum " tum alii Pontifices Praedecessores Nostri, ac Nostra Propagandae Fidei Congregatio ad tam grave niunus rite recteque gerendum normae, et adjumento fue- runt, Haec vere totius Angliae in quatuor Vicarlatus Apostolicos partitio usque ad Gregorii XVI, tempera perdu- ravit, qui Litteris Apostelicis die III, Julll An. MDCCCXL, datis incipientlbus " Munerls Apostolici " hablta praesertim ratione IncrementI, quod Religlo Catholica In eo Regno jam acceperat, nevaque facta reglonum Ecclesiastica partitione, duple majorem Vlcarlatuum Apostollcorum numerum excita vit, et Angliam totam Vlcarlls Apostelicis LondlnensI, Occi dental!, Orlentali, Centrall, Walllensi, Lancastriensi, Ebo- racensi, et Septentrional!, in spiritualibus gubernandam commisit. Quae cursim hoc loco, aliis pluribus praeter- missls, Indlcavimus, persplcuo documento sunt, Praedeces sores Nostros In Id vehementer Incubulsse, ut, quantum auctoritate sua valebant, ad Eccleslam in Anglia ex per- magna calamitate recreandam, ac reficiendam adnlterentur, et laborarent, Habentes Itaque ob oculos praeclarum hujus- modi Decesserum Nestrorum exemplum, illudque pro Su- preml Apostelatus officio aemulari volentes, et animi etiam Nostri Inclination! erga dilectam Illam Demlnlcae vineae partem obsecundantes vel ab ipso Pontificatus Nostri exordia Nobis proposuimus opus tam bene coeptum prosequi, et ad Ecclesiae utilltatem In ee Regno quotidle magls augendam Nostra Impenslora studia revocare, Quamebrem universum, LETTERS APOSTOLIC OF POPE PIUS IX, IX 1688, and commencing -with the -words "^ Super Cathe dram," he associated with Leyburn, as Vicars Apostolic, three ether bishops with titles taken from churches in par tibus infidelium; and accordingly, with the assistance ef Ferdinand, Archbishop ef Amaria, Apostolic Nuncio in England, the same Pontiff divided England into four dis tricts, namely, the London, the Western, the Midland, and the Northern ; each of which a Vicar Apostolic began to govern, furnished with all suitable faculties, and with the powers proper te a local Ordinary, Benedict XIV, by his Constitution, dated May 30, 1753, beginning " Apostolicum Ministerlum," and the other Pontiffs, our predecessors, and our Congregation of Propaganda, both by their authority and by their wise answers, supplied them with a rule of conduct, and with aid towards the right discharge of their Important functions. This partition of all England into four Apos tolic Vicariates lasted till the time of Gregory XVI., who, by Letters Apostolic, dated July 3. 1840, beginning " Munerls Apostolici," having taken into consideration the Increase which tbe Catholic religion had already received in that kingdom, made a new ecclesiastical arrangement ef the districts, doubling the number ef the Apostolic Vica riates, and committing the government of the whole ef England In spirituals to the Vicars Apostolic of London, the West, the East, the Centre, Wales, Lancaster, York, and the North, These facts that we have here cursorily touched upon, to emit a,ll mention of ethers, are a clear proof that our predecessors have earnestly laboured, that as far as their Influence could effect It, the Church in England might be refreshed and re-erected from the midst of the great calamity that had befallen her. Having, therefore, before our eyes the Illustrious example of our predecessors, and -wishing to emulate it, in accord ance with the duty of the Supreme Apostolate, and also giving way to the Inclination ef our own heart towards that beloved part of our Lord's vineyard, we have purposed, from the very first commencement of our pontificate, to prosecute a work so ivell commenced, and to devote our closer attention to the promotion of the Church's advantage In that kingdom. X PII PAPAE IX. LITTERAE APOSTOLICAE. ut nunc est, in Anglia rei CathoHcae statum diligenter conslderantes, ac permagnum cathollcerum numerum qui passim Ibl ampllor evadlt, animo rependentes, atque im pedimenta Ilia in dies auferri Nobiscum cogitantes, quae Catholicae religionis propagatieni valde ebfuerunt, tempus advenlsse reputavimus, ut reglailnis Ecclesiastici forma la Anglia ad eum medum restltul possit, in quo libere est apud alias gentes, in quibus nulla sit peculiaris causa, ut extra- ordlnarlo Ille VIcarlerum Apostollcorum ministerlo regantur, Temporum scilicet ac rerum adjuncta effeclsse sentlebamus, ut necesse non sit diutius Angliae catholicos a Vlcarlls Apostelicis gubernarl, Imme vero talem inibi rerum con- verslonem factam esse, ut Ordlnarll Eplscepalls regiminis formam flagltaret. Accesslt his, Angliae Vicarios Aposto licos Ipsos id interea a Nobis communi suffraglo petilsse, permultes tam clericos, quam laicos virtute, ac genere spectates vires hoc idem a Nobis precatos esse, allosque Angliae catholicos longe plurimos Id in votis habere. Haec animo velventes non omisimus Dei Optimi Maximi auxilium implerare, ut in rei tam gravis dellberatlone id quod ad Ecclesiae bonum augendum expedltius futurum esset, Nos intelllgere et recte Implere pessemus. Beatlsslmae praeterea Marlae VIrginis Deiparae, et Sanctorum, qui Angliam vir tute sua Illustrarunt, opem Invocavimus, ut ad negotlum istud feliciter abselvendum sue apud Deum patrocinlo Nobis adesse dignarentur. Tum vere rem universam Venerabllibus Eratrlbus Nostris Sanctae Romanae Ecclesiae Cardlnahbus Nestrae Congregatienls Propagandae Fidel sedulo graviter- que perpendendam commlsimus. Eorum autem sententia fuIt desiderio illl Nostro prorsus consentanea, quam llbenter probandam, et ad effectum perducendam judlcavimus. Ita que post rem universam a Nobis etiam accurata consldera- tione perpensam, motu proprio, certa sclentia, ac de plenitu- LETTERS APOSTOLIC OF POPE PIUS IX. XI Wherefore, having taken into earnest consideration the general state of Catholic affairs at present in England, and reflecting on the very large and every where increasing number of CathoHcs there ; considering also that the im pediments which stood so much In the way of the propaga tion of Catholicism are daily being removed, we have thought that tbe time had arrived, when the form ef ecclesiastical government in England might be restored te that shape In which it exists freely amongst other nations, where there Is no special cause for their being ruled by the extraordinary ministry ef Vicars Apostelic. We felt that the adjuncts of times and circumstances had hrought it to pass, that It was not necessary fer the English Catholics to be any longer governed by Vicars Apostolic ; nay more, that such a change of circumstances had taken place as to demand the form of Ordinary Episcopal government. In addition te this, the Vicars Apostelic of England themselves, had, with united voice, besought this of us ; many also, both ef the clergy and laity, highly esteemed for their virtue and rank, had made the same petition ; and this was also the earnest wish ef by far the majority of other Catholics of England. Whilst we pondered on these things, we did net omit to implore the aid of Almighty God, that in deliberating on a matter of such weight, we might be enabled both to discern, and rightly to fulfil that which might be most conducive to pro mote the good of the Church, We also Invoked the assistance of the most blessed Mary the Virgin, Mother of God, and of those Saints, who have rendered England Illustrious by their virtues, that they would vouchsafe to aid us by their advocacy with God towards the happy accomplishment ef this affair. In addition, we com mitted the whole matter to our venerable brethren the Car dinals of the Holy Roraan Church, our Congregation for the Propagation of the Faith, to be carefully and gravely considered. Their opinion was entirely In accordance with our own desires, and we freely approved of It ; and judged that It be carried Into execution. The whole matter, there fore, having been carefully and deliberately weighed. We, of our own proper motion, on certain knowledge, and In the pie- xii PII PAPAE IX, LITTERAE APOSTOLICAE. dine Apostollcae Nestrae potestatis constituimus, atque decernimus, ut in Regno Angliae refloreat juxta Com munes Ecclesiae Regulas HIerarchIa Ordlnarlorum Episco porum, qui a Sedlbus nuncupabuntur, quas hisce IpsIs Nostris Litteris In singulis Apostollcorum Vicariatuum Distrlctlbus constituimus. Atque ut a Dlstrictu LondlnensI Initlum faciamus, duae in ee Sedes erunt, Westmonasterlensls scilicet, quam ad Metropelitanae seu Archieplscopalls dignitatis gradum evehlmus, et Suthwarcensis, quam uti et rellquas raox Indlcandas, eidem suffraganeas assignamus. Et West monasterlensls quidem DIoecesis eam habebit memorati Dis trictus partem, quae ad Septentrionem protendltur flumlnls Tamesis, et Cemltatus MIddlesexiensem, Essexiensem atque Hertferdlensem complectltur : Suthwarcensis vero partem rellquam ad meridiem flumlnls, videlicet Cemltatus Berche- rlensem, Suth-Hantoniensem, Surrelensem, Sussexlensera, et Kantiensem, una cum Insulls Vecta, lersela, Gerneseia, alllsque prope llla^ sitls. In Dlstrictu Septentrlonall unica erlt Sedes Eplscepalls, ab Urbe Hagulstadensl nuncupanda, cujus DIoecesis iisdem, quibus Districtus ille, finibus contlne- bltur. Eboracensis etiam Districtus unlcam efficiet Dloe- ceslm, cujus Episcopus in Urbe Beverlaco sedem habebit. In Dlstrictu Lancastriensi duo erunt Episcopi, quorum alter a Llverpolltana Sede appellandus, pre Dioecesi habebit, cum Insula Mena, Centurlas Lonsdale, Ameunderness, et West Desby (Derby) : alter vero Sedem habiturus a Salfordensl urbe nuncupandam, pro Dioecesi obtinebit Centurlas Salford, Blackburn et Leyland. Quod vere attlnet ad Cestriensem Cemltatum, etsi ad Dlstrlctum ipsum pertlneat, eum nunc alll Dioecesi adjungemus. In Dlstrictu WaHlensI erunt binae Sedes Episcopales, Salopl'ensis scilicet, ac Menevensis (b) et Newportensis Invlcem unltae : Saleplensis quidem DIoe cesis ad Septentrlonalem Districtus partem complectetur Cemltatus qui dicuntur Anglesela, Caernarvonensis, Den- blghensls, Fllntensls, Mervlniensis et Mentgemerlensls, qui bus adjunglmus Cestrensem Cemltatum ex Dlstrictu Lan- LETTERS APOSTOLIC OF POPE PIUS IX, Xlll nitude of our Apostolical power, constitute and decree, that In the kingdom of England, according to the common rules ef the Church, the Hierarchy ef Ordinary Bishops shall re- flourish, who shall be named from Sees, which we consti tute by these very Letters ef ours. In the several districts ef the Apostolic Vicariates, Te begin with the London Dis trict, there shall be in it two Sees ; that of Westminster, which we elevate to the degree of the Metropolitan or Archi episcopal dignity, and that of Southwark, which, as also the others (to be named presently), we assign as suffragan to Westminster. The diocese of Westminster shall embrace that part of the above-named district which extends to the north of the river Thames, and Includes the counties ef Middlesex, Essex, and Hertford; that of Southwark shall contain the remaining part te the south of the river, viz., the counties of Berks, Southampton, Surrey, Sussex, and Kent, with the Islands ef Wight, Jersey, Guernsey, and the ethers adjacent to them. In the Northern District there shall be only one Episcopal See, to be named from the city of Hexham, the diocese ef which shall be bounded by the same limits as the district Itself. The York District shall also form one diocese ; and the bishop shall have his see In the city of Beverley, In the Lancaster District there shall be two bishops ; of whora the one shall receive his title from the See of Liver pool, and shall have for his diocese the Isle of Man, the hundreds ef Lonsdale, Ameunderness, and West Derby. The other shall take the name of his See from the city of Salford ; and shall have for his diocese the hundreds ef Sal- ford, Blackburn, and Leyland : as to the county of Chester, although it has hitherto belonged te that district, we shall now annex It te another diocese. In the District of Wales there shall be two bishoprics, viz. that of Shrewsbury, and that ef Johnston's Geographical Dictionary li Loudon's Agriculture - - - 1" " Rural Architecture 1' " Gardening - - - 1 " " Plants - - - - 17 " Trees and Shrubs - - 17 M'Culloch's Geographical Dictionary IC " Dictionary ofCommerce 19 Murray's Encyclop. of Geography - 22 Ure's Dictionary of Arts, &c. - - 31 Webster's Domestic Economy - 32 Religious and Moral Works. Amy Herbert - - - - 20 Bloomfield's Greek Testament - 4 " . Annotations on do. - 4 " College and School do. 4 " Lexicon to do. - - -I Book of Ruth (illuminated) - Id Callcott's Scripture Herbal - C Conybeare and Howson's St. Paul 6 Pages. Cook's Edition of the Acts - 6 Cooper's Sermons -; - 6 Corner's Sunday Book - 6 Dale's Domestic Liturgy 7 Discipline _ - - 7 Eai'l's Daughter (The1 - 26 Ecclesiastes, illuminated 23 Elmes'3 Thought Book - - - 8 Englishman's Greek Concordance 8 EngliBhman'sHeb,&Chald. Con cord. 8 Gertrude - - - - - 26 Hook's Lectures on Passion Week 12 Home's Introduction to Scriptures 12 " Abridgment of diitto - 12 Howson's Sunday Evening - 13 Jameson's Sacreo Legends - 14 " Monastic Legends - - 14 " Legends of the Madonna 15 Jeremy Taylor's Works - - - 15 Laneton Parsonage - 26 Letters to My Unknown Friends 1 6 " on Happiness - - - 16 Maitland'sChurchintheCatacombs 19 Margaret Percival - - - - 26 Marriage Service (illuminated) 23 Maxims of the Saviour - - 14 Miracles of Our Saviour - 14 Moore On the Use of the Body - 21 " " Soul and Body - 21 " 's Man and his Motives - 21 MoreU's PhUosophy of Religion - 21 Mosheim's Ecclesiastical History- 22 Mount St, Lawrence - - - 22 Neale's Closing Scene - - - 22 " Resting Places of the Just 22 Newman's (J.H,) Discourses - 22 Paley's Evidences, &c. by Potts - 23 Parables of Our Lord - - - 14 Readings for Lent - - - 15 Robinson's Lexicon to the Greek Testament ----- 25 Sermon im the Mount (The) - - 33 Sinclair's Journey of Life 26 " Business of Life 26 Smith's (G.) Perilous Times - - 27 Smith's (G.) Religion of Anc. Britain 27 " " Sacred Annals - - 27 " Doctrine of the Cherubim 27 " (Sydney) Sermons - - 27 " " Moral Philosophy 27 " (J.) St, Paul - - - 27 Solomon's Song, illuminated 23 Southey's Life of Wesley - - 29 Tayler's Lady Mary - - - 29 " Margaret; or, the Pearl - 29 " fisaac) Loyola - - 29 Thumb Bible (The) - - - 30 Tomline's Introduction to the Bible 30 Turner's Sacred History- - - 31 Twelve Years Ago - - - 31 Twiss on the Pope's Letters - - 31 Wilberforce's View of Christianity 32 Wisdom of Johnson's Rambler, &c. 15 Poetry and the Drama. Aikin's (Dr.) British Poets Baillie's (Joanna) Poetical Works 3 Flowers and their kindred Thoughts 22 Fruits from Garden and Field - 22 Goldsmith's Poems, illustrated - 9 Gray's Elegy, illuminated - - 22 Hey's Moral of Flowers - - - 12 " Sylvan Musings - - - 12 L. E. L.'s Poetical Works - - 16 Linwood's Anthologia Oxoniensis - 16 Macaulay's Lays of Ancient Rome 18 Montgomery's Poetical Works - 21 Moore's Poetical Works - 21 " Lalla Rookh - 21 " Irish Melodies - - - 21 " Songs and Ballads - - 21 Shakspeare, oy Bowdler - - 26 " Sentiments & Similes 13 Southey's Poetical Works - - 28 " British Poets - - - 28 Swain's English Melodies - - 29 Taylor's Virgin Widow - - 29 Thomson's Seasons, illustrated - 30 " edited by Dr, A. T. Thomson 30 Watts's Lyrics of the Heart - - 32 Winged Thoughts - - - 22 Political Economy and Statistics. Banfield and Weld's Statistics 3 Gilbart's Treatise on Banking - 9 Gray's Tables of Life Contingencies 10 Pages. Kay On the Social Condition, &c., of Europe - - - - 15 Laing's Notes of a Traveller - - le M'Culloch's Geog. Statist. &c. Diet* 19 " Dictionary of Commerce 19 " StatistiesofGt. Britain 19 " On Funding & Taxation 19 Marcet's Political Economy - - 19 Tooke's Histories of Prices - 30&31 The Sciences in General and Mathe matics. Bourne's Catechism of the Steam Engine ----- 4 Brande's Dictionary of Science, &c. 4 Conversations on Mineralogy - 6 Cresy's Civil Engineering - . g DelaBeche'sGeologyofCornwall,&c. 7 " Geological Observer - 7 De la Rive's Electricity - 7 Dixon's Fossils of Sussex - 7 Gower's Scientific Phenomena - 9 Herschel'a Outlines of Astronomy II Humboldt's Aspects of Nature - 13 - " Cosmos - - 13 Hunt's Researches on Light - 14 Marcet's (Mrs.) Conversations - 19 Memoirs of the Geological Survey 20 Moseley's Practical Mechanics - 22 " Engineering&Architectiire 22 Owen's Lectures on Comp. Anatomy 23 Peschel'3 Elements of Physics - 24 Phillips's Fossils of Cornwall, &c. 24 " Mineralogy, by Miller - 24 Portlock's Geology ofLondonderry 24 Schleiden's Scientific Botany - 25 Smee's Electro Metallurgy - 27 Steam Engine (The) - - 3 Tate On Strength of Materials - 29 Thomson's School Chemistry - 30 Rural Sports. Blaine's Dictionary of Sports - 4 The Cricket-Field - - - - 6 Ephemera on Angling - - - 8 " Book of the Salmon - 8 Hawker's Instructions to Sportsmen 11 The Hunting-Field - - - u Loudon's Lady's Country Comp. - 17 Pocket and the Stud - - - 11 Practical Horsemanship - - 11 Piilman's Fly-Fishing - - - 24 Ronalds's Fly Fisher - - - 25 Stable Talk and Table Talk - - H The Stud, for practical purposes - 11 Wheatley's Rod and Line - 32 Veterinary Medicine, &c. Hunting Field (The ) - - - 11 Pocket and the Stud - - - 11 Practical Horsemanship - - 11 Stable Talk and Table Talk - - 11 Stud (The) - - - . u Youatt's The Dog - - - - 32 '* The Horse - - - 32 Voyages aud Travels. Chesney's Euphrates and Tigris • 6 Ennan's Travels through Siberia - 9 Forbes's Dahomey - - - 9 Forester and Biddujph's Norway - 9 Head's Tour in Rome - - - U Humboldt's Aspects of Nature - 13 Laing's Notes of a Traveller - IB Power's New Zealand Sketches 24 Richardson's Overland Journey - 25 Rovings in the Pacific - - 25 Seaward's Narrative 26 Snow's Arctic Voyage 28 AN SIp6aI)ttitaI Catalogue OF NEW W0EK8 AND NEW EDITIONS, PUBLISHED BY Messks. LONGMAN, BEOWN, GEEEN, and LONGMANS, PATERNOSTER ROW, LONDON. MISS ACTON'S MODERN COOKERY-BOOK. Modern Cookery in all its Branches, reduced to a System of Easy Practice. For the use of Private Families. In a Series of Receipts, all of which have been strictly tested, and are given with the raost minute exactness. By Eliza Acton. New Edition : with Directions for Carv ing:, and other Additions. Fcp. Svo. with Plates and Woodcuts, 7s. 6d. cloth. AIKIN.-SELECT WORKS OF THE BRITISH POETS, From Ben Jonson to Beattie. 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