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In accordance with the division generally adopted in the dispatches of his Majesty's ministers, and with a view also to call the attention of the House, with greater facility, to the leading points of contention between the ecclesiastical and secular powers, in the external government of the church; the Committee have chiefly directed their attention to two objects :

First, The appointment or election of the Roman Catholic clergy, and, principally, those of the episcopal order.

And secondly, The restraints imposed upon the intromission of Papal Rescripts, by submitting them to the inspection of the civil government previous to their publication;-a right exercised in various countries, under the name of the "REGIUM EXEQUATUR," the "PLACITUM REGIUM," or some similar appellation. With this they have joined the Appellate Jurisdiction, or "Recursus ad Principem," exercised by the supreme secular magistrate, in cases where the ecclesiastical judges have exceeded the proper limits of their authority.

Under a third head, they have included such other matters of ecclesi. astical regulation as do not immediately fall within either of the preceding divisions.

Under each of these heads they have thought it desirable to distinguish between regulations obtaining in those States which are in communion with the See of Rome;-those of the "non-united Greek," or Russian church;—and those of the Augsburgh and Helvetian confessions, constituting the Lutheran and Calvinistic churches.

I, THE EMPIRE OF AUSTRIA. At the head of the first class, your Committee have thought it most proper to place the empire of Austria,

including not only Austria Proper, but the hereditary dominions of Bohemia and Hungary.

But before they proceed to report the result of their investigation of the regulations prevailing in these States, on the points in question, your Committee must observe, that their information is principally derived from a manual of the ecclesiastical law of Austria ("Enchiridion Juris Ecclesiastici Austriaci,") compiled by the jurist Rechberger, chancellor of the Bishop of Lintz; which work was transmitted to the foreign office by his Majesty's minister plenipotentiary at Vienna, as embracing every point on which information was desired. This work was originally written in German, but afterwards translated by the author into Latin, that it might be taught in the schools and universi ties, and adopted as an ecclesiastical class book. And although it principally relates to the laws of Austria, the most remarkable points in which those of Hungary differ from the codes of the other parts of the empire are pointed out.

The Austrian bishops are nominated or appointed by the emperor, which appointment is in lieu of the election, or postulation, of the chapters of their respective cathedrals, and has the same effect; the papal confirmation being afterwards obtained through the Austrian minister at Rome. To this mode of election the Archbishop of Olmutz forms the sole exception; the right of chusing him vesting entirely in the chapter of his see.

As king of Hungary, the emperor has the sole right of appointing not only the archbishops and bishops, both of the Latin and Greek church, but also titular bishops and prelates for those chapters and monasteries in the Turkish dominions, which once formed a part of that kingdom.

In Hungary, all bishops appointed by the sovereign immediately, perform every part of their functions which relate to jurisdiction, before they have been confirmed by the Pope.

In other parts of the dominions of the imperial house, the bishops have not the power of performing these functions, or at least do not exercise it, until it is conferred on them at their consecration;-but that they nevertheless have this right, is inferred from the express declaration of the Austrian laws, that bishops hold their power, as well in respect to orders as to jurisdiction, "directly from God." By an imperial decree of September 4, 1781, the Austrian bishops were accordingly called upon to exercise the rights thus given to them by God;" but after the interview of Pope Pius VI., with the Emperor Joseph II., a more recent decree allowed those bishops, who felt any scruple upon the subject, to solicit from Rome the licences they might think necessary; but which can only be granted for their own lives, and must be submitted to the placitum of the Emperor. These papal licences, or faculties, are now generally transmitted to the new bishops, with the bull for their confirmation.

It is positively enjoined by the Austrian law, that, at the consecration of a bishop, the episcopal oath shall neither be given, nor taken, in any other than its original and proper sense, of a mere canonical obedience to the Pope, in nowise infringing upon the rights of the Emperor, or on the duties, as subjects, to which the bishops are sworn by the particular oath of allegiance and fidelity to their sovereign, which they are obliged to take after their nomination, and previous to their taking the pontifical oath.

Coadjutors to bishops are, now,

seldom appointed, but with the right of succession, and are chosen by those who have the right of electing or nominating the bishop; consequently in Austria, they also are nominated by the Emperor, without whose previous consent the bishops are positively prohibited from applying to Rome for a coadjutor, though a bull of Boniface VIII., has expressly reserved their appointment, in all cases, to the Holy See. When appointed, these episcopal coadjutors are confirmed by the Pope, after previous information of the cause of their appointment. But by one of the decrees of the Council of Trent (which, subject to the modification of her own municipal laws, seem generally to prevail in Austria, though never received in Hungary) bishops may, with the consent of their chapter, take to themselves temporary coadjutors; or, if the bishop should be non compos mentis, such coadjutor may be elected by the chapter, or two-thirds of it.

Conformably to another decree of the same council, on the death of a bishop, the chapter succeeds, provisionally, to the exercise of his jurisdiction, as far as it is necessary for the government of the diocese, and must within eight days appoint a vicar-general, with one or more administrators, or confirm the vicar of the late bishop; or in default, the nomination devolves on the metropolitan.

The bishops are bound to present their vicars-general to the Emperor, for his approbation, besides which it is provided, in Hungary, that none but natives can be appointed to this office.

Your committee do not think it necessary here to report the details connected with the elections of the mitred abbots or other prelates not having episcopal jurisdiction ;-but as these elections are all regulated by

an imperial ordinance, it has been thought advisable to insert some extracts relating to them in the Appendix.

All papal reservations have been done away with, both in Austria and in Hungary; by the laws of which latter state it is provided, that "no one shall attempt to procure to himself the presentation or collation to any ecclesiastical benefice from any other than the King, or those who have the right of patronage." The Austrian bishops are bound to make the provincial government acquainted with the name, country, place of education, progress, morals, &c. of every candidate for orders; exhibiting due testimonials, and the requisite title, previous to his ordination.

Foreigners after having resided ten years in Austria become domiciled, and may obtain a benefice, provided they can shew that they have either studied theology in one of the universities of the state, or have submitted to the rigorous examination required by the imperial decree of March 9, 1784; but the subjects of the former republic of Venice, and of Bavaria, were excluded from all ecclesiastical benefices in the hereditary dominions of Austria, by the decrees of December 30, 1769, and April 11, 1770. In Hungary also, no benefice can be conferred on any other than a native.

Finally, in all elections and appointments of the ministers of religion, the right of the sovereign to exclude those "of whom it may just ly be feared that they might abuse their power to the injury of the state, or at least defeat the expectation, which the state is entitled to form of the ministers of the church," is most distinctly asserted; and this maxim pervades the whole Austrian code.

Adverting to the second of their general divisions, your committee

have thought it expedient to insert in the Appendix, several extracts from the " Manual of the Ecclesiastical Law of Austria," above noticed, in which the mutual relations of the church and state are laid down, and which distinctly marks the foundation upon which the Placitum Regium, or Exequatur is raised, as the great barrier of the state against the encroachments of the Papal See, and to the exercise of which they now beg leave to call the attention of the House.

The Placitum Regium, as admitted in Austria, is, "the right of requiring that all ecclesiastical statutes and ordinances be submitted to the state before their publication, and of prohibiting their promulgation whenever they are found to relate to objects not essential to the legitimate ends of the church, or obnoxious to the inte rests of the state. And this right extends not merely to rescripts or regulations of discipline, but to those also which are dogmatical; as something might be added to them in the mode of their publication or penal sanetion, which is not a point of doctrine."

In execution of this power it is provided by the Austrian laws," that all papal rescripts, as well originals as authenticated copies, are to be laid before the provincial government, and afterwards transmitted to the supreme tribunal, along with the opinion of the attorney-general, and of the provincial government. That this is to be observed not only with regard to newly emitted bulis, briefs, or other regulations of the Pope, but also with regard to papal rescripts of former times, at whatever period they may have been issued, so that whoever desires to make use of them is bound to obtain the imperial placet."

That "the bulls already admitted have force of law only, as long as no

thing is prescribed to the contrary by any more recent enactment of the state."

That "nothing is exempt from this law, but absolutions granted by the Roman Penitentiary, whenever they concern conscience only when the case admits of no delay, or when the reputation of any one is in danger."

That "no person is allowed to ap. ply for an indult from the Pope for the celebration of any new festival, or for any new act of devotion, with out permission from the Emperor."

That "kinsmen, relations in prohibited degrees, are forbidden to apply to the ecclesiastical court for any dispensation, without having previously obtained the consent of the so vereign for that purpose."

That "if (in such cases) the bishop thinks the papal dispensation necessary, especial leave to apply for it at Rome is to be obtained from the sovereign; which leave is generally granted, on condition that the said dispensation is to be had gratis.

That "all briefs of indulgences are to be transmitted to the court to obtain the imperial placet. And if any one should wish for any indulgence, his petition is to be sent to the ordinary bishop, who is to inquire into the matter; if he thinks the granting of any indulgence would be improper, he is to dismiss the petition; but if he thinks that it ought to be granted, as resting on sufficient grounds, he is to solicit an imperial placet for obtaining or giving greater effect to the indulgence."

That "exemptions from episcopal jurisdiction, are of no avail when they are in contradiction to the general laws of the country, or when it can not be shewn that they have been confirmed by an imperial placet, which is absolutely required for the execu tion of any papal ordinance, though of ever so long standing."

VOL. IX. PART 11..

That "all petitions for secularization (that is, for permission to leave a monastic order) are to be presented to the bishops; and whether they are granted by the court of Rome, or by the bishops, secularizations must, in every individual instance, be confirmed by the imperial placet."

That "the faculties which the bishops themselves, or such of them as are scrupulous of exercising their own rights, obtain from Rome, should (as has already been incidentally observed) be submitted to the sovereign for his placet."

That" bishops are likewise bound to submit their pastoral and circular letters, (whether they relate to the whole diocese, or to any part of it, and whether the clergy only, or all the faithful, are obliged to perform or to abstain from any thing, in consequence of them,) to the inspection and approbation of the provincial civil government, before they are promulgated."

That "no one is allowed to solicit at Rome, any ecclesiastical dignity, or the title of domestic chaplain, apostolical prothonotary, or any similar distinction, without a previous statement of the expenses which such a demand would incur, and without requesting and obtaining the consent of the sovereign."

That" ecclesiastical censures have no civil effect, but what is connected with them by the express, or tacit will of the Emperor. Hence with regard to the civil effect attached to ecclesiastical censures by the common law, no Austrian subject can be excommunicated without the Emperor's consent; and to that end the motive of the excommunication is previously to be discussed by an equal number of ecclesiastical and civil commissaries; but the sentence itself is to be pronounced by the ordinary, and laid before his Majesty previous

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to its publication, to be confirmed by his imperial placet."

In the like manner, "those who have the cure of souls are not allowed to inflict any external and public punishments upon penitents, by their own authority, and without the know ledge and consent of the provincial government."

That "though bishops may visit slight offences of the clergy, which incur no civil punishment, with some temporal chastisement of a gentle nature, such as a moderate confinement and fasting, yet it is only in consequence of their having a license to do so from the Emperor.'

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That though cathedral chapters "may enact statutes for the canons, to bind their successors they must have the consent of the bishop, and, according to the Austrian laws, must likewise be confirmed by the Empe

ror."

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Under the other branch of this head of their Report, the appellate jurisdiction, or recursus ad principem," your Committee find the Austrian laws distinctly recognizing the principle, that "the right of the sovereign to prohibit the summoning of his subjects before any ecclesiastical court not within the limits of the country, is so firmly grounded in the universal rights of the state, that it does not stand in need of any privi. lege," and that "he, may, therefore, forbid his subjects recurring to the See of Rome in those ecclesiastical affairs which belong to the primitive power of bishops, or he may allow this recourse to be had only under certain limitations."

In accordance with this express declaration they accordingly forbid any causes concerning the nullity of religious vows to be laid before the

court of Rome."

In matrimonial causes, however, when they come under the cogni

zance of the ecclesiastical courts, if the bishop of the diocese, in the first, and the metropolitan, in the second instance, should differ in their judgments, "judges are to be appointed, who have not been parties to either of the former judgments, from whose sentence there is to be no further ap peal." But if the metropolitan, or an immediate bishop, were judge in the first instance, and a court of delegates had heard the appeal, and the two judgments should differ, the metropolitan is, in case one of the parties to the suit requires it, "to ask that a judge may be delegated by the See of Rome, which office, however, is to be intrusted only to a native bishop of the country."

It is also clearly established by the Austrian laws, that "an appeal may be made to the sovereign, against any abuse of the ecclesiastical power," in which case it is his duty, or that of the civil judge acting on his behalf, to pronounce sentence, "if the matter relates to the defence of civil rights, to the maintenance of the tranquillity and safety of the country, or to the integrity of its privileges."

But if the question turns purely upon ecclesiastical rights, it is the province of the civil judge, who is in nowise to touch upon the internal state or merits of the cause, merely to compel the ecclesiastical judges to observe that order of proceeding which is prescribed by the laws.

Upon this and the preceding point, the "Manual of the Austrian Code of Ecclesiastical Laws," refers for further information to the works of Van Espen; and your Committee have, therefore, thought that they could not better discharge their duty than by putting the House in possession of such parts of the authorities collected by this celebrated jurist, as seemed most pointedly to illustrate this long disputed question; adding

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