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been a territory of the Sovereign of the Roman States, parcelling out the kingdom into districts, "motu proprio," " plenitudine Apostolica nostræ potestatis," without the faintest allusion to any other authority, was another aggravation of the offence, as were also

3. The undeniable fact that the act being done "Rege inconsulto," was done contrary to Canon no less than to International Law.

4. The proclamation of the Bull in the metropolis of the kingdom, without any Placet or Exequatur from the Sovereign.

Lastly, the Pope could not allege, by way of defence or palliation, the impossibility of conferring with the Sovereign of Great Britain, before he did an act without precedent in Ecclesiastical or International Law, because the recent statute above mentioned afforded means of international communication between the two Courts.

CCCCXXI. It is not within the scope of this work to travel into any political or ecclesiastical questions growing out of this wrongful and illegal act; but no impartial writer upon International Law could pass it by without adverting to the censure which that law inflicts upon it.

It is true that the publication of these Letters Apostolic raised a ferment in the minds of the English people, greatly resembling that which disgraced this country in the reign of Charles II., under the auspices of Titus Oates.

The result of many stormy debates in Parliament was the following statute, passed in the fourteenth year of the reign of Queen Victoria :(x)— *Whereas divers of Her Majesty's Roman Catholic subjects. [*424] have assumed to themselves the title of Archbishops and Bishops of a pretended province, and of pretended sees or dioceses, within the United Kingdom, under colour of an alleged authority given to them for that purpose by certain Briefs, Rescripts, or Letters Apostolical from the See of Rome, and particularly by a certain Brief, Rescript, or Letters Apostolical purporting to have been given at Rome on the twenty-ninth of September, one thousand eight hundred and fifty: and whereas by the Act of the tenth year of King George the Fourth, chapter seven, after reciting that the Protestant Episcopal Church of England and Ireland, and the doctrine, discipline, and government thereof and likewise the Protestant Presbyterian Church of Scotland, and the doctrine, discipline, and government thereof, were by the respective acts of union of England and Scotland, and of Great Britain and Ireland, established permanently and inviolably, and that the right and title of Archbishops to their respective provinces, of Bishops to their sees, and of Deans to their deaneries, as well in England as in Ireland, had been settled and established by law, it was enacted, that if any person after the commencement of that Act, other than the person thereunto authorized by law, should assume or use the name, style, or title of Archbishop of any province, Bishop of any bishopric, or Dean of any deanery, in England or Ireland, he should for every such offence forfeit and pay the sum of one hundred pounds: And whereas it may be doubted whether the recited

(x) 14 & 15 Vict. cap. lx., An Act to prevent the Assumption of certain Ecclesiastical Titles in respect of Places in the United Kingdom (1st August, 1851.)

The vict here enforced. The discs labhrnment of the dinh Ch more The Case ~toward, as the Month Bunges become, death to hemailing. Repealing Act of 1871. bis however, asserted that no pre-emmence or coercive power of be conterned otherwise. tion by the less if the realm.

RELATIONS OF THE PAPACY, ETC.

279

enactment extends to the assumption of the title of Archbishop or Bishop
of a pretended province or diocese, or Archbishop or Bishop of a city,
place, or territory, or Dean of any pretended deanery in England or
Ireland, not being the see, province, or diocese of any Archbishop or
Bishop or deanery of any Dean recognized by law; but the attempt
*to establish, under colour of authority from the See of Rome

or otherwise, such pretended sees, provinces, dioceses, or deane- [*425]

ries, is illegal and void: And whereas it is expedient to prohibit the
assumption of such titles in respect of any places within the United
Kingdom be it therefore declared and enacted by the Queen's most
Excellent Majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Commons, in this present Parliament
assembled, and by the authority of the same that

"I. All such Briefs, Rescripts, or Letters Apostolical, and all and
every the jurisdiction, authority, pre-eminence, or title conferred or pre-
tended to be conferred thereby, are and shall be and be deemed unlawful
and void.

"II. And be it enacted, that if, after the passing of this act, any person shall obtain, or cause to be procured from the Bishop or See of Rome, or shall publish or put in use within any part of the United Kingdom, any such Bull, Brief, Rescript, or Letters Apostolical, or any other instrument or writing, for the purpose of constituting such Archbishops or Bishops of such pretended provinces, sees, or dioceses within the United Kingdom, or if any person, other than a person thereunto authorised by law in respect of an archbishopric, bishopric, or deanery of the United Church of England and Ireland, assume or use the name, style, or title of Archbishop, Bishop, or Dean of any city, town, or place, or of any territory or district, (under any designation or description whatsoever,) in the United Kingdom, whether such city, town, or place, or such territory or district, be or be not the see of the province, or co-extensive with the province, of any Archbishop, or the see or the diocese, or coextensive with the diocese, of any Bishop, or the seat or place of the Church of any Dean, or co-extensive with any deanery, of the said United Church, the person so offending shall for every such offence forfeit and pay the sum of one hundred pounds, to be recovered as penalties imposed by the recited Act may be *recovered under the provisions there[*426] of, or by action of debt at the suit of any person in one of Her Majesty's Superior Courts of Law, with the consent of Her Majesty's Attorney-General in England and Ireland, or Her Majesty's Advocate in Scotland, as the case may be."

The policy of Queen Elizabeth was certainly bolder and perhaps wiser: when in her time the Pope sent an uninvited Legate to England, she took good care that he should not set his foot upon the shore of her territory, and if he had done so, she would certainly have sent him back to Rome.

CCCCXXII. The practice of Rome since the reign of Queen Elizabeth to appoint Roman Catholic Bishops in partibus, did not infringe directly the principle of territorial authority incident to Sovereigns or prelates of the country. The conduct of Great Britain with respect to the consecra

tion of Bishops for the United States of North America was in harmony with this principle, and it must also be remembered that there was no established Church in that country, and that there is no trace in the English Statute(y) of the assumption of authority over the subjects of the United States. The conduct of Great Britain with respect to the establishment of the Anglican Bishopric at Jerusalem, can only be defended, as a question of International Law, upon the ground of the permission of the Sultan, and as a question of Canonical Law upon the permission of the Greek ecclesiastical authorities.

The statute founding that Bishopric was accompanied by a Letter Commendatory from the Archbishop of Canterbury "to the Right Rev. erend our Brothers in Christ, the Prelates and Bishops of the Ancient and Apostolic Churches in Syria and the countries adjacent ;" and also by an explanatory statement, published by authority, in which it was declared that the new Bishop's "spiritual authority will extend over the English clergy and congregations, and over those who may join his Church, and place themselves under his episcopal authority in [*427] Palestine, and for the present, in the rest of Syria, in Chaldea, Egypt, and Abyssinia: such jurisdiction being exercised as nearly as may be, according to the laws, canons, and customs of the Church of England; the Bishop having power to frame, with the consent of the Metropolitan, particular rules and orders for the peculiar wants of his people. His chief missionary care will be directed to the conversion of the Jews, to their protection, and to their useful employment.

"He will establish and maintain, as far as in him lies, relations of Christian charity with other Churches represented at Jerusalem, and in particular with the Orthodox Greek Church; taking special care to convince them that the Church of England does not wish to disturb, or divide, or interfere with them; but that she is ready, in the spirit of Christian love, to render them such offices of friendship as they may be willing to receive."

Lord Aberdeen, who was consulted at the time of the institution of the bishopric, has recently declared in a letter, which has been published, that no interference was intended with the authority of the Greek Church.(z)

Considered apart from these limitations, the terms of the English statute, (a) under which this Bishopric was founded, are so extensive, as to be, however unintentionally, indefensible, upon the strict principles of International Law, Ecclesiastical as well as Civil.

(y) 26 George III., c. lxxxiv.

(z) Thomassinus has a chapter on the difficulties arising "circa ordinationes Episcoporum, vel plurium in unâ urbe," &c.-Vetus et Nova Eccles. Discipl., pt. i. 1. 1, c. xxix. S. vii. refers to the case of Venice, in which there were Greek Bishops for the Greek people; so in Cyprus and Rhodes: "Duo quippe in uno populo erant populi duæ urbe in unâ urbes quoties duos assignari Episcopos indultum est." The second Bishop should be confined to those of his own country and language, and act with the permission of the first.

(a) 5 Victoria, c. vi. s. 1.

484

*CHAPTER X.

[*428]

THE ELECTORS, MINISTERS, AND COURTS OF THE POPE, CONSIDERED IN
THEIR RELATION TO FOREIGN STATES.

CCCCXXIII. THE ambition of the Emperors of Germany, which at one period, as we have seen, claimed the absolute power of nominating the Pope, produced a reaction both in favour of a free election to the spiritual throne, and in favour of the independence of the temporal principality; for it became evident to Catholic Sovereigns that the Sovereign who nominated the supreme Pontiff would indirectly govern the whole of Christendom.(a)

will

+

At all times, indeed, the rule and manner of succession to that throne, which claims, without reference to territorial limits, a spiritual allegiance, theoretically from all Christians, practically from all co-religionists, of whatever country they may be subjects, must be a question of grave general international importance. But at no time, perhaps, can this be more truly predicated than at the present, not merely because most of the questions which in these days agitate nations, including the great war which is now afflicting Europe, have religion for their object or their pretext, but also because the difficult problem which the union of a temporal been sovereignty with an universal spiritual dominion presente has never more difficult or more necessary to solve. Of this problem, a living Solver for The Italian (one of the few statesmen whom the recent throes of that unhappy present actor. country has produced) has well said, that, from its very nature, irrespective of external circumstances, involves considerations which

are both grave and universally interesting, both political and in- [*429]

by

ternational.(b) the Portlan CCCCXXIV. We must not, therefore, pass by wholly without notice to the Station the following considerations: It is therefore, effument's higuire - Kingtime; 1. What qualifications render a person eligible to be elected Pope? Revertheless 2. Who are the electors and the ministers of the Pope? 3. What is the mode and law of such election?

the

4. May the Pope be deposed for any offence, and by whom? CCCCXXV. (1.) According to rule and usage, no one is eligible, and no one is elected to be Pope, except a Cardinal; (c) but according to the Canon Law, the election of another person, (d) even, it is said, of a layman, (e) would not be null. So that Maximilian's(ƒ) expectations were not without the pale of possible gratification. But the Throne of Rome may not be filled, as other thrones are, by a female. One must be a Protestant, says the French canonist, who has been already cited, or be

(a) Portalis, Introd. v. vi.

(6) Farini, Lo Stato Romano, vol. iv. Lettera XV. a G. Gladstone. "Nè ciò dipende tanto della natura dei Governi che prevalgono in Europa quanto dalla natura stessa del problema, il quale è implicato nelle più gravi ed universale questioni religiose, internazionale, e politiche.' Vide post, Lettera XVII.

(c) D. De Maillane. ii. 551. "Pape."

(d) Can. oportebat et seq. dist. 79.

(e) Glos. in cap. si quis pecunia eod verb. non Apostolicus.

(ƒ) Vide ante, p. 342, n. (y).

NOVEMBER, 1855.-19

+

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blinded by other fanatical prejudices, "pour croire à la fable de la Papasse Jeanne."(g)

As to the age of the Pope, it must not be less than that of the canonical age required for the Episcopate, namely, thirty years. (h) In the year 1770, it was remarked that of the successors of St. Peter three only had reached that elevation under the age of forty.

[*430]

*CCCCXXVI.(i) The Electors of the Pope are the Cardinals. Who are the persons eligible for an order possessing such an important suffrage?

How are the members of this order elected or appointed? What is their history?—what are the functions of this order?-are questions which immediately present themselves for solution.

CCCCXXVII. Originally every Church was governed by a Bishop, who was assisted by a synod or senate of the clergy, that is, of the priests and deacons in his diocese. Those of the clergy who were attached by institution to certain cures of souls to certain Churches, were at first designated Incardinati, as a name of distinction from the temporary auxillary clergy not attached to any particular Church.

and

The name Incardinatus, (k) was afterwards exchanged for that of Cardinalis, and in early times every Church possessed its Cardinales, though probably the appellation was generally confined, as it was in France, to the clergy of the city, or suburbs of the city of the diocese, in fact to the chief advisers of the Bishop, and was not bestowed upon the rural clergy. When the Church of Rome claimed pre-eminence over all other Churches it was an evident consequence that her Cardinals should be equally distinguished above all others.

It was the duty of the Roman Cardinals not only to govern the Churches of the metropolis of the world, but also to form the council of the chief pastor of that metropolis.

They were not Cardinals(7) merely because Incardinati to different parishes in Rome, but also, and principally, because *these [431] parishes constituted in their aggregate that Roman Church, which was the head, the centre, the hinge (cardo) of all the Churches of the world. These Cardinals, though but simple priests and deacons as their order, claimed jurisdiction over the inferior Bishops of the Roman See. Afterwards the Bishops of seven contiguous and suburban sees (episcopi suburbicarii) were added to the number of Cardinals.

The Pope was at first, like other Bishops, elected by the clergy and laity of the city, the choice being ratified by the Emperors; then, as we have seen, for a time the Emperor usurped the right of nomination, and finally the election was left to the regulations of the Roman See. In the Council held at Rome under Pope Nicolas II. (A. D. 1509), the principal authority in electing the Pope was conferred on the Cardinal

(9) D. De Maillane, ii. 551. " Pape."

(h) Ib. ii. 552. "Pape." Ib. i. 113. "Age." Ib. ii. "Episcopat."

(Pachmann, Lehrbuch des Kirchenrechts, s. 175-8. Vide post, Lord Palmerston's observations.

(k) Also Intitulatus.

(1) C. 1, Dist. xxii. C. 3, Dist. xxiv. C. 5, Dist. lxxi. C. 6, Dist. lxxiv. C. 13, Dist. lxi. C. 3-5, Dist. lxxix.