Brazilian Catholic Church in UK

The bishop possesses, as already stated, the powers of order and jurisdiction. The power of order comes to him through episcopal consecration, but the exercise of this right depends on his power of jurisdiction. The sacerdotal ordination performed by every duly consecrated bishop is undoubtedly valid, yet the bishop can ordain only in conformity with the enactments of canon law. Only the bishop can confer major orders. The question has been discussed, as to whether the pope could delegate to a priest, for example the abbot of a monastery, the power to ordain a deacon. The bishop is the only ordinary minister of the Sacrament of Confirmation (Council of Trent, Sess. XXIII, can. vii). Ecclesiastical law has reserved certain benedictions and consecrations to him, those which are performed with holy oil. The following functions are reserved to the bishop: the dedication of a church, the consecration of an altar, of chalices and patens, and generally of the articles serving for the celebration of Holy Mass, the reconciliation of a desecrated church, the benediction of bells, the benediction of an abbot, the benediction of the holy oils, etc. A bishop is forbidden to exercise the Pontificalia -- i.e. to perform episcopal functions in another diocese -- without the consent of the ordinary, i.e. the proper bishop (Council of Trent, Sess. VI, De ref., ch. v). Besides the power of order, bishops possess that of jurisdiction; they have the right to prescribe for the faithful the rules which the latter must follow in order to obtain eternal salvation. The power of jurisdiction is of divine origin, The bishops have then in their dioceses an ordinary jurisdiction, But this jurisdiction is independent of the will and consent of the faithful, and even of the clergy. In certain important matters, however, the bishop must at times seek the advice, at other times the consent, of the cathedral chapter.

In certain countries where chapters are not established, the bishop is bound to consult in some specified cases the consultores cleri dioecesani, or diocesan consultors (Third council of Baltimore, nos. 17-22, 33, 179). On the other hand, certain classes of persons, especially the regulars properly so called, are exempt from episcopal authority, and certain matters are removed from the bishops jurisdiction. Moreover, he has no power against the will of a superior authority, i.e. the pope, the councils, whether general, plenary, or provincial. The Bishop possess also other important powers through "delegated" jurisdiction which is accorded to him either by law, whether written or established through the Roman Congregations. The last named jurisdiction he exercises in the name of the Apostolic See (see below). Certain writers attribute to the bishop a third kind of jurisdiction which they call "quasi-ordinary" jurisdiction, but there are wide differences as to the definitions of this kind of jurisdiction. Several writers (such as: Wernz, II, 10; Bargilliat, "Praelect. ju. can.", Paris, 1900, I, 164; and amoung the older canonists, Boix, "De princep. juris canonici", Paris, 1852, 530) think that this distinction is useless; the jurisdiction known as quasi-ordinary is nothing else than an ordinary or delegated jurisdiction granted by written law or by custom.

It is a controverted question whether the bishops hold their jurisdiction directly from God or from the sovereign pontiff. The latter opinion, however, is almost generally admitted at the present day, for it is more in conformity with the monarchical constitution of the Church, which seems to demand that there should be no power in the Church not emanating immediately from the sovereign pontiff. Authors who hold the contrary opinion say that it is during the episcopal consecration that bishops receive from God their power of jurisdiction. But habitually before their consecration the bishops have already all powers of jurisdiction over their dioceses (Bargilliat, I, 442-445). Another question also discussed is whether the potestas magisterii, or teaching authority, is a consequence of the power of order or of jurisdiction (Sägmüller, Lehrbuch des katholischen Kirchenrechts, Frieberg, 1900-04, 24-25). Whatever the conclusion, teaching authority will here be ranked among the powers of jurisdiction. The teaching authority of the bishop and his governing authority (potestas regiminis) will now be successively considered, the latter comprising the legislative, dispensative, judicial, coercive, and administrative powers.

A. Teaching Authority

By Divine Law bishops have the right to teach Christian doctrine (Mathew 28:19; Council of Trent, Sess. XXIV, De ref., ch. iv; Encyclical of Leo XIII, "Sapientiae christianae", 10 January, 1890; "Acta Sanctae Sedis": 1890, XXXII, 385). At the same time, the obligation of instructing the faithful either personally or, if hindered, through other ecclesiastics is incumbent upon them. They are bound also to see that in the parish churches the parish priests fulfil the requirements of preaching and teaching which theCouncil of Trent imposes on them (Sess. V, De ref., ch. ii; Sess. XXIV, De ref. ch. iv). The bishop must also supervise the teaching of Christian doctrine in the seminaries, as well as in secondary and primary schools (Conc. Balt. III, nos. 194 sqq.; Const. "Romanos pontifices", 8 May, 1881; op. cit., Appendix, 212). In virtue of this right of superintendence, and because of the intimate relations which exist between instruction and education, the bishop is empowered to forbid attendance at undemominational schools, at least in those districts where Catholic schools exist, and where attendance at the former schools is dangerous. In virtue of the same right he will very often be bound to erect Catholic schools or favour their establishment (Third Council of Baltimore, nos. 194-213). No one is allowed to preach Christian doctrine without the consent of the bishop, or at least without his knowledge if it is a question of exempt religious preaching in their own churches (Council of Trent, Sess. V, De ref., ch., ii; Sess. XVIV, De ref., ch. iv). The Bishop has power to supervise writings published or read in his diocese; works regarding the sacred sciences are subject to his approbation; he may forbid the reading of dangerous books and newspapers. He exercises a special control over the publications of the secular clergy, who are bound to consult him before undertaking the direction of newspapers or of publishing works even upon profane matters (Const. of Leo XIII, "Officiorum et munerum", 25 January, 1897; Vermeersch, "De probitione et censura liborum", 4th ed., Rome, 1906). He has the right of special supervision over the manuals used in educational establishments, and as far as possible he will encourage the publication of good books and good newspapers (Third Council of Baltimore, nos. 210,220, 221, 225, 226). The bishop is the Inquisitor natus or protector of the faith for his diocese. He has not, it is true, the right to define, outside an ecumenical council, controverted questions with regard to faith and morals, but when a heated discussion arises in his diocese, he can impose silence upon the parties concerned while awaiting a decision from the Holy see. If anyone, however, denies a point of doctrine defined by the Church, even though it be all exempt religious, the bishop will have the power to punish him (Council of Trent, Sess. V, De ref., ch. ii; Sess. XXIV, De ref., ch, iii). He must likewise guard the faithful of his diocese against dangerous societies condemned by the Holy See (Third Council of Baltimore, nos. 244-255).

B. Governing Authority

(1) Legislative Power The bishop can enact for his diocese those laws which he considers conducive to the general good. Though he is not bound to convoke a synod for this purpose, his legislative power is not absolute. He cannot legislate contra jus commune, i.e. enact a law contrary to the general law of the Church, written or established by custom, or to the decisions of general, plenary, or provincial councils. This is on the principle that an inferior cannot act contrary to the will of his superiors (ch. 11, "De electione et electi potestate", I, iii, in the Clementines; Friedberg, II, 937) He can, however, enact laws juxta jus commune, i.e. he can urge the observance of provisions of the common ecclesiastical law by penalizing the violation of the same (ch. ii. De constitutionibus, VI, I, ii; Friedberg, II, 937). He can determine the common ecclesiastical law, i.e. he can permit or forbid that which the common law neither forbids nor permits with certitude, and can apply to the particular needs of his diocese the general enactments of the pontifical laws. Many writers say that the bishop has also the power to enact laws praeter jus commune, i.e. to regulate those matters concerning which the common ecclesiastical law is silent; or at least particular points unforeseen by the common law. In any case, if the bishop wishes to add to the enactments of the common law (and the same principle is valid when it is a question of applying to the needs of his own diocese a general law of the Church), he must take care to make no enactment on matters which the common law, in the intention of the supreme legislator, has completely regulated. The common law implicitly forbids any episcopal action in such matters. Thus, e.g., the bishop cannot introduce new irregularities. In his diocesan legislation the bishop must not go beyond the purpose intended by the common ecclesiastical law. Thus, the latter forbids the clergy to take part in games of chance (ludi aleatorii), the aim of the law being to, condemn the love of lucre and to avoid scandal; at the same time the bishop cannot forbid in private houses other games which are not games of chance. On the other hand, if it be a matter concerning which the common law is silent, the bishop may take all necessary measures to prevent and put and end to abuses and to maintain ecclesiastical discipline. He must abstain, however, from imposing on his clergy extraordinary charges and obligations, and from unusual innovations. The legislative power of the bishop præter jus commune, is, therefore, far from being absolute. (Chaeys-Bouuaert, De canonicâ cleri sæcularis obedientiâ, Louvain, 1904, 69-77). Canonical writers discuss the right of the bishop to abrogate a local custom contrary to the enactments of the common ecclesiastical law. He probably has not the right, provided that the custom be juridical, i.e. a reasonable one and legitimately prescribed this custom obtains only because of pontifical consent, it does not belong to the bishop to act contrary to the will of the pope. The power of granting dispensations is correlative to the legislative power. The bishop may, therefore, dispense with regard to all diocesan laws. He may also dispense, in particular cases only, from the laws of provincial and plenary synods; any dispensation of these laws would be almost impossible, if it were necessary on all such occasions to convoke a fresh provincial or plenary synod. The bishop however, cannot dispense from enactments that relate directly to himself, and impose obligations upon him, or from enactments that accord rights to a third party. The bishop cannot dispense from laws made by the sovereign pontiff. To this there are, however, some exceptions. In certain matters, the written law or custom has granted this right to the bishop. He may also dispense from such laws in virtue of an expressly delegated power, or even sometimes in virtue of the consent, presumed or tacit, of the sovereign pontiff. These cases in reality are determined by custom. Canonical writers also admit that a bishop may grant a dispensation, when there is a doubt whether a dispensation is required, though in such a case it may be a question whether any dispensation at all is requisite (Bargilliat, I, 483-491)

(2) Judicial Power This power is exercised in two ways: without legal apparatus (extra judicialiter) or in a judicial process (judicialiter). In his diocese the bishop is judge in the first instance in all trials, civil and criminal that pertain to the ecclesiastical tribunal, unless the persons be exempt from his authority, or the matters reserved for other judges; such. e.g., are the process of Canonisation reserved to the Pope or the misdemeanors of a Vicar -General, which fall under the cognizance of the archbishop. (Ch. vii, De officio judicis ordinarii, VI, I, xvi; Friedberg, II, 988; Council of Trent, Sess. XXIV, De ref., ch. xx.) In ecclesiastical trials he must conform to the general or special provisions of the law. (For matrimonial trials see "Instructio de judiciis ecclesiasticis circa causas matrimoniales" in "Acta et decreta Concilii Plenarii Baltimorensis III", Appendix, 262; for trials of ecclesiastics see the Instruction of the Propaganda, "Cum Magnopere", which reproduces substantially the Instruction of the Congregation of Bishops and Regulars of 11 June, 1880, op. cit., 287; see also S. Smith, "New procedure in criminal and disciplinary causes of ecclesiastics", 3d ed., New York, 1898.) The bishop has also judicial power which he exercises extra judicialiter both in foro externo (publicly) and in foro interno (in conscience). He has the power to absolve his subjects from all sins and censures not reserved to the Holy see. Moreover, the absolution from a censure inflicted by an ecclesiastical Judge is always reserved for the latter or to his superiors (Bull, "Sacramentum Poenitentiæ" 1 June, 1741 in "Benedicti XIV, Bullarium", Venice, 1775, I, 22; Const. "Apostolicæ Sedis", "Collectanea S.C.P.", 1002). On the other hand, the bishop may reserve to himself absolution from certain sins (Council of Trent, Sess. XIV, "De poenit.", ch. vii; Third Plenary Council of Baltimore, nos. 124, 127)

(3) Coercive Power The right to punish is a necessary consequence if the right to judge. Formerly the bishop could and did inflict even corporal punishments and fines. These are no longer customary even for ecclesiastics. The usual penalties for the laity are censures; for ecclesiastics, religious exercises, confinement for a time in a monastery. (Third Plenary Council of Baltimore, nos. 72-73), degradation to an office of less importance (privatio officii ecclesiastici), and censures, especially suspension. The bishop may inflict suspension ex informatâ conscientia, i.e. on his personal responsibility, and without observing any legal formality, but in cases foreseen by the law (Instruction of Propaganda, 20 October, 1884; Conc. Balt. in, Appendix, 298). To the coercive power of the bishop belongs also the right of issuing certain commands (præcepta) i.e. of imposing on a particular ecclesiastic special obligations sanctioned by certain penalties (Constitution, "Cum Magnopere" nos. 4 and 8). He has also the lawful power to remove the penalties inflicted by him. Bishops call also grant indulgences: cardinals 200, archbishops 100, and bishops, 50 days' indulgence (Decree of Congregation of Indulgences, 28 August, 1903; Acta Sanctæ Sedis. XXXVI, 318).

(4) Administrative Power The matters to which the administrative power of the bishop extends can only be briefly indicated here:

The foremost is the supreme direction of the clergy. At the present day, generally speaking, it might be said that the bishop has the right to retain in his diocese a priest to whom he has entrusted ecclesiastical functions and given the means of subsistence (Claeys-Bouuaert, 200-244). In case of necessity or great utility, e.g. given the scarcity of priests, the bishop may compel an ecclesiastic to accept ecclesiastical functions, but he will require a pontifical indult to impose upon him the cura animarum, or cure of souls. Ecclesiastics ordained titulo missionis (see HOLY ORDERS, MISSIONS) take upon themselves special obligations in this matter. (See Instruction of Propaganda. 27 April, 1871, and the Reply of 4 February, 1873; Conc. Plen. Balt. III, Appendix, 204-211; decree "De seminariorum alumnis" 22 December, 1905; "Acta Sanctae Sedis", 1905, XXXVIII, 407.) The bishop may also nominate to the benefices and ecclesiastical functions of his own diocese. Certain nominations, however, are reserved to the Holy See, and in several countries the right of patronage still exists.

The bishop, moreover, intervenes in the administration of ecclesiastical property. No alienation whatever of ecclesiastical goods is possible without his consent, and he exercises supreme supervision over their administration.

He has a special right of intervention in all matters relating to Divine worship and to the sacraments; he authorizes and supervises the printing of liturgical books, regulates public worship, processions, exposition of the Blessed Sacrament, celebration of the Holy Mass, celebration of Mass twice on the same day by the same priest (see Bination), and exorcisms; his consent is required for the erection of churches and oratories; he authorizes the public veneration of the relics of saints and of those who have been beatified; he exercises supervision over statues and images exposed for the veneration of the faithful: he publishes Indulgences, etc. But in all these matters his power is not unlimited; he must conform to the enactments of the canon law.

Bishops have also a "delegated jurisdiction" which they exercise in their name this power is granted to them a jure or ab homine. Ecclesiastical law frequently accords to bishops delegated powers; but it would be wrong to say, for instance, that every power of dispensation granted by a general law of the Church is a delegated one. Such power is perhaps quite as often an ordinary power. But when the law accords a power of jurisdiction to the bishop, tanquam Sedis apostolicæ delegatus, it is a delegated power that he receives. (See, for example, Council of Trent, Sess. V, De ref. ch., I, ii; Sess. VI, De ref., ch. iii; Sess. VII, De ref., ch. vi, viii, xiv, etc). Writers do not agree as to the nature of the power accorded to the bishop also as a delegate to the Apostolic See, etiam tanquam sedis apostolicæ delegatus. Some maintain that it is in this case the bishop has at the same time both ordinary and delegated power, but only relative to such persons as are subject to his jurisdiction. (Reiffenstuel, Jus canonicum universum, Paris, 1864, tit. xxix, 37); others contended that in this case the bishop has ordinary jurisdiction with regard to his subjects, and only a delegated one with regard to those who are exempt (Hinschius, System des katholischen Kirchenrechts, Berlin, 1869, I, 178; Scherer, Handbuch des Kirchenrechts, Graz, 1886, I, 421, note 36); others maintain that the bishop has the same time both an ordinary and a delegated power over his subjects, and a delegated power over those who are exempt (Wernz, II, 816); finally, others see in this formula only a means of removing any obstacles which might pervent the bishop from using the power accorded to him (Santi, Praelect. jur. can., New York, 1898, I, 259). The delegated powers ab homine are at the present of very geat importance especially in missionary countries. The Apostolic Penitentiary grants those which are only concerned with the forum of conscience. The others are granted by the Congregation of the Propaganda. They are called facultates habituales, because not granted for a determined individual case. These faculties are no longer accorded only to the bishop in his own person but to the ordinaries, that is to say, to the bishop, to his successor, to the administrator pro tem of the diocese, and to the vicar general, to vicars apostolic, prefects, etc. (Declaration of the Holy Office, 26 November, 1897, 22 April, 1898, 25 June, 1898, 5 September, 1900; Acta Sanctæ Sedis, 1897-98, XXX, 627, 702; 1898-99, XXXI, 120; 1900-01, XXXIII, 225). As a general rule the bishop can subdelegate these powers, provided that the faculties do not forbid it (Holy Office, 16 December, 1898; Acta Sanctæ Sedis, 1898-99, XXXI, 635). For further information see Putzer-Konings, "Commentarium in facultates apostolicas" (5th ed., New York, 1898). On the other hand, the bishop can always ask the Holy See for such delegated powers as are necessary in the administration of his diocese. The bishop is also the ordinary and habitual executor of the dispensations which the Holy See grants in foro externo, i.e. for public use or application.

IV. OBLIGATIONS OF THE BISHOP

In describing the rights of bishops we have already in great measure indicated what their obligations are. All their efforts must aim at preserving the true faith and a high moral tone among the people; they attain this end by good example, by preaching, by daily solicitude for the good administration of the diocese, and by prayer. Bishops, in effect, are bound by the Divine law to implore the help of God for the faithful committed to their care. Canon law has determined more fully this obligation, and imposes upon the bishops the obligation of celebrating Mass for the faithful of their dioceses (missa pro grege) every Sunday, on the feast days of obligation and on the abrogated feast days (Const. Leo XIII "In supremâ", 10 June, 1882; "Collectanea, S.C.P.", no. 112). The bishop is bound to take special care of the education of youth and of the training of his clergy; he must exercise continual vigilance over the latter and assist them with his counsels. The Church has imposed as special obligations upon bishops the canonical visitation of the diocese and the holding of an annual diocesan synod. The bishop is bound to visit each year the greater part of his diocese either personally or, if prevented, through his delegates. This visit will permit him to administer the Sacrament of Confirmation (Council of Trent, Sess. XXXIV, De ref., ch. iii). The Third Plenary Council of Baltimore grants the bishop three years for making this visitation (Acta et decreta, no 14). The Council of Trent ordered that an annual diocesan synod should be held (Sess. XXIV, De ref. ch. ii). At present, the Holy See no longer urges the strict observation of this legislation (Santi Praelect. Jur. can., I, 360) The Third Council of Baltimore decreed that the bishop should take counsel with the diocesan consultors whenever he wished to convoke a synod (Acta et decreta, no. 20) It is then unnecessary for the synod to assemble every year. However in missionary countries the Holy See desires that these synods should be rather frequent and dispenses the bishop from the observation of the formalities difficult to fulfill, e.g. the convoking of all ecclesiastics who ought to be present at the synod (Letter of Propaganda to the Bishop of Milwaukee, 19 July, 1889, "Collectanea, S.C.P." no. 117). It is evident, finally, that the bishop cannot fulfill the duties of his office unless he observes the law of residence. The bishop is obliged to reside in his diocese and it is proper that he should be in the episcopal city on the principal feast days of the year. He cannot be absent from his diocese for more than three months, except for grave reason approved of by the Holy See (Council of Trent. Sess. VI, De ref., ch. i; Sess. XXXIII, De ref., ch. i; Benedict XIV, "Ad universae christianae", 3 September, 1746; Letters of Propaganda, 24 April and 24 August 1861; "Collectanea, S.C.P.", nos. 103, 105). The bishop has also obligations regarding the Holy See. Throughout his entire administration he must conform to the general legislation of the Church and the directions of the pope. In this respect two special obligations are incumbent upon him: he must pay the Visitatio ad limina Apostolorum, and present the Relatio de statu diocesis, i.e. he must visit the shrines of Sts. Peter and Paul at Rome and present a report on the condition of his diocese. In the time of Paschal II (1099-1118), only metropolitans were bound to pay this visit. The Decretals imposed this obligation upon bishop whose consecration the pope reserved to himself (C. iv, "De electione et electi potestate"; X, I, vi; c. xiii, "De majoritate et obentia" X, I, xxxiii; c. iv, "De jurejurando", X, II, xxiv; Friedberg, II, 49, 201. 360). It has become general since the fifteenth century, and Sixtus definitely ruled in favour of this obligation (Bull, "Romanus Pontifex", 20 December, 1585; "Bullarum amplissima collectio", ed. Cocquelines, Rome, 1747, IV, iv, 173). According to this Bull the bishops of Italy and the neighbouring islands, of Dalmatia and Greece, must make the visit ad limina every three years; those of Germany, France, Spain, England, Portugal, Belgium, Bohemia, Hungary, Poland, and the islands of the Mediterranean Sea every four years; those of other parts of Europe, of North Africa, and the isles of the Atlantic Ocean situated to the east of the New World, every five years; those of other parts of the world every ten years. The bishops of Ireland, in virtue of a privilege of 10 May, 1631, are bound to pay this visit only every ten years. Even in the case of more recently erected sees the years are counted from 20 December, 1585, date of the aforesaid Bull (Instruction of Propaganda, 1 June, 1877; Collectanea, S.C.P.", no. 110). The bishops must pay this visit personally and for this purpose are allowed to absent themselves from their dioceses. The bishops of Italy for four months, other bishops for seven months. The Holy See sometimes dispenses a bishop from the obligation of paying this visit personally, and permits him to send, as his delegate, a priest of his diocese, especially one of those who have been promoted to a high office (dignitates), or a priest of the diocese sojourning at Rome, or even the agent of the bishop in that city, if an ecclesiastic. While this visit, as stated above, ought to be paid the third, fourth, fifth, or tenth year, the rule suffers frequent exceptions in practice (Wernz, II, 914). The Visitatio Liminum includes a visit to the tombs of St. Peter and St. Paul, an audience with the Holy Father, and a written report which the bishop ought to present to the Congregation of the Council (Congregatio specialis super statu ecclesiarum also called Concilietto) according to the formula of Benedict XIII in 1725 (A. Lucidi, De Visitatione saerorim Liminum, 5th ed., Rome, 1883). Bishops subject to the Propaganda present this statement to the latter congregation (the proper formula is in "Acta Sanctae Sedis", 1891-92; XXIV, 382. "Collectanea", no. 104). In addition they ought also to send every five years, a report to the Propaganda according to the formulary drawn up by this congregation 24 April, 1861 (Collectanea, no. 104). This obligation had formerly been all annual one (Decrees of Propaganda, 31 October, 1838, 27 September, 1843, and 23 March, 1844; Collectanea, nos. 97-99; Third Council of Baltimore, no. 14). Finally, mention may be made of certain privileges enjoyed by bishops. They do not fall under suspensions and interdicts, latæ sententia, i.e. incurred ipso facto, unless express mention of them is therein made; those who are guilty of assaults upon them are punished with an excommunication reserved speciali modo to the sovereign pontiff; they possess the right of having a domestic chapel and enjoy the privilege of the altare portabile, or portable altar, etc.

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