which the rule upon this subject is stated with more precision and accuracy than in the opinion of Chief Justice Tindal, in the Queen v. Millis (k). I proceed in the last place to endeavour to show that the law by which the spiritual courts of this kingdom have from the earliest time been governed and regulated, is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore, but instead thereof an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King's Ecclesiastical Law. That the canon law of Europe does not, and never did, as a body of laws, form part of the law of England has been long settled and established law.” So Lord Abinger (1), "The learned judges have, I think, satisfactorily derived it" (i. e., the ecclesiastical law of England) "from the constitutions of the synods and councils in England, before the authority of the pope was acknowledged in this country. I take that part only of the foreign law to be the ecclesiastical law of England, which has been adopted by parliament or the courts of this country" (m). The law of the Church of England is, then, derived Sources of from the leading general councils of the undivided church, the law. from a practice and usage incorporating portions of the general canonical jurisprudence, from provincial constitutions, from canons passed by her clergy and confirmed by the crown in convocation, and from statutes enacted by parliament, that is, the crown, the spiritualty and the temporalty of the realm. (k) 10 Clark & Finelly, 678. (7) Ibid. 745. (m) See Lord Cottenham to the same effect. Ibid. 876. Members of the church. CHAPTER V. CLERGY AND LAITY. THE members of the church (ecclesia) may be not inconveniently considered under four categories. 1. That which includes those who have a peculiar and separated position in the church, to whom belongs the status ecclesiasticus specialis, bishops, priests or deacons, who belong to the status clericalis or the clergy, who are by their ordination distinguished from the laity (a). 2. That which includes those who discharge the duties of a clerical office, whether attached to a see or college, or cathedral, or hospital, or almshouse, or to a simple benefice with cure of souls, or to a curacy according to the custom of the English Church. This is sometimes designated status ecclesiasticus sensu stricto. 3. That which includes those who, not being in holy orders, have, as laymen, an official or peculiar connection with the church: who discharge offices connected with the administration and discipline of the church: official principals of the courts of the province, chancellors of dioceses, vicars-general, commissaries, officials of archdeaconries, apparitors, churchwardens. To this category belong also clerks, lay readers, laymen authorized by the bishop to perform certain acts, members of religious fraternities, and sisterhoods belonging to the Church of England (b). 4. That which includes all the faithful (fideles) who, having been duly received into the church, are entitled to the benefit of her ministrations and sacraments until they have been excommunicated (c). (a) Roman canonists add the category of those who have bound themselves by irrevocable vows and solemn obligations to what is technically called a religious life, who have, as our law books used to say, entered into religion. This class was again subdivided into regular (regulares) as opposed to secular (seculares), but it is a class no longer recognized by our law. (b) Monks were rarely in holy orders before the tenth century. (c) Kemp v. Wickes, 3 Phillim. 274; Escott v. Mastin, 2 Curteis, 692; Mastin v. Escott, 4 Moore, P. C. 104; Charge of Bishop of Exeter, 1842; Titchmarch v. Chapman, 3 Curteis, 840; Art. 33, Can. 65, 85; 5 Eliz. c. 23; 53 Geo. 3. c. 127: English Prayer Book-the Order for the Burial of the Dead, first Rubric; the Order for the administration of the Lord's Supper, Rubrics prefixed to Communion Service and after Nicene Creed. PART II. ORDERS AND OFFICES OF THE CHURCH. CHAPTER I. BISHOPS. SECT. 1.-Early History of Bishops and Archbishops. 3.-The Archbishops of England. 4.-Form and Manner of making and conse- 5.-Concerning Residence at their Cathedrals. cation. 8.-Temporalities of Bishoprics in the Time of 9.-Archbishops' Jurisdiction over their Provincial SECT. 1.-Early History of Bishops and Archbishops. THE Ultramontanists (a) maintain that the bishops do not Theories as obtain their authority immediately from God, as the true to bishops. successors of the apostles, but mediately through the power of the pope-inasmuch as the pope is not only the patriarch of the Western Church, but the head of the whole visible church, as the successor of St. Peter. The Greek Church, as well as the Anglican, American, Scotch, Irish and Colonial Episcopal Churches, maintain that, as the successor of St. Peter, the pope has no such status, but that our Lord gave to St. Peter, to whose bishopric the pope succeeded, the same authority as that which he gave to the other apostles (b); that they all, after (a) Walter, §§ 145, 223, 228. (b) "Oh Almighty God, who hast built thy church upon the apostles and prophets, Jesus Christ himself being the chief Early history of bishops. his death, equally exercised this authority-that they constituted bishops as their legitimate successors and as the spiritual rulers of the church. To these was committed the potestas ordinis, which relates to the administration of the sacraments and the performance of public worship,deriving its name from the fact that these functions are discharged by those in holy orders, which the bishop confers and the potestas jurisdictionis, if the word jurisdictio can be properly applied to express an authority which per se, and apart from the assistance of the state, can exercise no physical or external coercion on those who are not the subjects of it. The great authorities referred to in the note (c) should be consulted by those who wish to be thoroughly conversant with a detailed history of the origin and continuance of the order of bishops in the christian church throughout every country where that church has been permitted to flourish, as well as in our own islands. The history of episcopacy in the latter is sketched with much spirit and fidelity by Palmer in his Antiquities of the English Ritual (d). "The church (says Giannone), even during the three first centuries, knew no other hierarchy, no other orders than those of bishops, priests and deacons" (e). But this assertion, though generally true, requires some qualification; for the language of the Council of Nice (A.D. 325), renders it quite clear that certain bishops had a preeminence and dignity above the rest. "Let those customs (said this council) remain in force which have been of old the customs (agxaïa eon) of Egypt, and Lybia and Pentapolis; by which customs the Bishop of Alexandria hath authority over all these, and the rather, that this hath also been the use of the bishops of Rome, and the same hath been observed in Antioch and in other provinces." The first Council of Constantinople, held eighty years after the Nicene Synod, added the Bishop of Constantinople to the number of these primates or metropolitans of Alexandria, Antioch and Rome, assigning him a place second in dignity to the latter (f). In the first times of the church (the (c) Van Espen, pars 1, lit. 13, Christenthum und Kirche, von J. Von Döllinger, Regensburg, iii. Buch, §§ 12-22; Walter, Lehrbuch des Kirchenrechts, §§ 143, 228. (d) Vol. ii. 246. (e) L. 1, c. xi. s. 4, Ist. Civil. di Napoli. (f) So Cyprian (A. D. 280) was Metropolitan of Carthage; and very learned Professor Walter observes) (g) the nomination of bishops was conducted in strict accordance with the precedent set by the apostles. The neighbouring bishops invoking the clerus and the congregations of the widowed see, chose the new bishop, examined him, and forthwith consecrated him to his office. By degrees these three actions became more and more severed and underwent certain changes. The choice was made by the clergy, the municipality (ordo), the higher officers (honorati), and the citizens. The metropolitan, assisted by the bishops of his province, examined the candidate. The ordination or consecration was performed within the space of three months by the metropolitan and his comprovincial bishops -by three bishops at the least. But it was not till after Constantine had publicly embraced christianity that the dignities of metropolitans, archbishops, primates, exarchs or patriarchs, were so established in the church as to correspond with the secular magistracies of the state; and from this period these titles seem to have been bestowed (h) with reference to the greater or less extent of the provinces over which they held spiritual sway. The metropolitans were so called because they presided over the churches of the principal cities of the province. It was their duty not only to ordain, as has been said, the bishops of their province, but also to convoke provincial councils, and to exercise a general superintendence over the doctrine and discipline of the bishops and clergy within the provinces. These are the functions ascribed to them by the Council of Nice (A.D. 325), by the councils which followed soon afterwards, by the ecclesiastical writers of the fourth and fifth centuries, and by the edicts of Justinian (i). The title of archbishop was one of honour, but brought with it no authority, and was at first very rarely bestowed, and only on the most distinguished bishops. The name is not to be met with during the three first centuries. It occurs for the first time in the fourth century, and St. Athanasius appears to have been among the earliest who were distin archbishop Usher and others conceive that the bishops of the seven churches in Asia were metropolitans. (g) § 226. (h) The word diocese was borrowed from the Roman government, who had adopted it from the Greeks. "Si quid habebis, cum aliquo Hellespontio controversiæ ut in illam διοίκησιν reji cias." Cic. fam. ep. 53, 1. 13. |