Jurisdiction

In General and in the Church

 

Table of Contents

I. Nature of Jurisdiction

Ecclesiastical Society and Power to Command

Special Authority for Truth and Grace

Triple Power: Order, Magisterium, Jurisdiction

Etymology and Definition

Difference with Roman Civil Law; Divisions into Judicial and Extra-Judicial

II. Existence of This Power in the Church

In Holy Scripture

In Tradition

III. The Divisions of Ecclesiastical Jurisdiction

A. By Reason of the Forum

1.Jurisdiction in the Internal Forum (Sacramental and Extra- Sacramental)

2. Jurisdiction in the External Forum

B. By Reason of Its Extent

1.Universal Jurisdiction

2. Particular Jurisdiction

C. By Reason of the Title by Which It Is Conferred

1.Ordinary Jurisdiction

a.How Is Ordinary Jurisdiction Acquired?

i. Election

ii. Postulation

iii. Collation

iv. Institution (and Right of Patronage)

b.How Can Ordinary Jurisdiction Be Restricted?

i.Exemption

ii. Reservation

iii. Appeal

c.How Is Ordinary Jurisdiction Lost?

i.Renunciation

ii.Translation

iii. Deprivation

2.Quasi-Ordinary Jurisdiction

3. Delegated Jurisdiction

IV. Subject of the Power of Jurisdiction

1. The Clerical State
2. The Degree in the Hierarchy
3. Age, Honesty of Morals, Sufficient Knowledge
4. The Most Worthy

V. Object or Matter of the Power of Jurisdiction in the Church

1. Distinction Between the External Forum and the Internal Forum
2. Object of Jurisdiction in the External Forum

2.1. Legislative Power of the Church

2.2. Judicial Power – History and Competence

2.3. Coercive Power

VI. Source and Extent of This Same Power

Fullness in the Pope

Episcopal Jurisdiction Descending from the Pope

Proper Power of Bishops

Other Degrees of Ecclesiastical Institution

VII. Jurisdiction of Suppliance

1. Definition and Foundations
2. Mechanism and Conditions of Jurisdiction of Suppliance

2.1. Common Error

2.1.1. Definition and Characteristics

2.1.2. Illustration by a Concrete Example

2.1.3. Distinction with Individual Error

2.1.4. Limits

2.2. Positive and Probable Doubt

2.2.1. Definition and Nature

2.2.2. Illustration by a Concrete Example

2.2.3. Distinction with Negative Doubt

2.2.4. Application in Periods of Persecution

2.3. The Automatic Functioning of Suppliance

2.3.1. Explanation of the Concept

2.3.2. Practical Implications

2.3.3. Scope in the Internal and External Forums

2.4. Essential Distinctions and Nuances

2.5. Historical Examples and Practical Cases

2.6. Theological and Pastoral Implications

2.7. Three Theological Implications

VIII. Conclusion

Sources

Theologians

Canonists

I. Nature of Jurisdiction:

 

1. The ecclesiastical society resembles in part the civil society but in part also differs from it.

Like civil society, the ecclesiastical society proposes an end that its members must attain by common means; but, while for the first the end is purely natural, in the second the end belongs to a higher order that the forces of nature are powerless to attain and where the direct influence of a supernatural agent who is none other than God is necessary.

 

The power to command, essential to every society, is necessarily found in the ecclesiastical society that is the Church.

 

We know that the principal element in a society, that which determines its nature or essence, is the end it proposes to attain, but the complete and not partial end.

On the other hand, a society cannot exist or even be conceived if there is not found in it a moderator to hold the balance between individual wills, to bring back their diverse tendencies and make them concur by their harmony to the common unity.

Hence the necessity of finding in society a power that commands the multitude, directs it and if need be constrains it, so that the social grouping can attain the end that is proper to it.

This power to command, essential to every society, is found in the Church in the same way as in every perfect society, since it is itself a perfect society, as is demonstrated peremptorily elsewhere.

 

2. However, this authority is of a very different nature, and this is due to the special condition of this society. The Church, in fact, has a supernatural end and, to attain it, it does not only have to direct and regulate the social forces of its members, but also to apply principles that allow their activity to be exercised in a manner conforming and proportionate to the greatness of the goal they pursue.

 

These principles come down to two, which are truth and grace:

– the supernatural truth given by revelation and which must be held by faith,

– grace which, elevating us to participation in the divine nature, makes us apt to act in the order of our supernatural end which is eternal life.

 

We owe both to the Incarnate Word of whom it is written:

“And the Word was made flesh, and dwelt among us… full of grace and truth; and of his fullness we all have received” (And the Word was made flesh and dwelt among us… full of grace and truth, and of his fullness we all have received);

 

and again: “The law was given by Moses: grace and truth came by Jesus Christ.” John, i, 14, 16, 17.

 

It is to ensure the dispensation of truth and grace that Christ himself established the apostolic hierarchy: “Let men regard us as the ministers of Christ and the dispensers of the mysteries of God.” I Cor., IV, 1, the mysteries of God, namely: the sacraments or sensible signs instituted for our sanctification, and the revealed dogmas that faith obliges us to believe.

 

This is why, in the kingdom of Christ, besides the power to rule imperatively the acts of subjects, there must be a particular power to dispense the supernatural means placed by God at the disposal of the Church.

 

3. Triple power.

 

This power of dispensation itself doubles according to whether one considers, on the one hand, the administration of holy things ordered to produce grace, on the other, the authentic proposition, with definitions in support, of revealed truths.

 

– In the first case, we have the power of order which is recalled by these words of Christ to the apostolic college: “Baptizing them in the name of the Father and of the Son and of the Holy Ghost” (Baptizing them in the name of the Father, and of the Son, and of the Holy Spirit), Matt., xxviii, 19, “Do this in memory of me” (Do this in memory of Me), I Cor., xi, 25.

 

– The second case gives us the power of magisterium that Our Lord confers on his apostles shortly before ascending to heaven: Preach the gospel to every creature, (Preach the Gospel to every creature) Mark xvi, 15; Go teach all nations… teaching them to observe all things whatsoever I have commanded you. (“15. And he said to them: Go into the whole world and preach the gospel to every creature. 16. He who believes and is baptized will be saved, but he who does not believe will be condemned.”), similarly in Matt., xxviii, 19, 20.

 

There is therefore in the Church a triple power: the power of order, the power of magisterium and the power of jurisdiction, the latter being only the power to rule imperatively the acts of subjects.

 

4. The etymology:

 

“If one sticks, says Sanguinetti, to the etymology of the word, jurisdiction, from ‘jus dicere’, ‘to say the right’, means the power to carry a law, and by law one understands everything that relates to government or the direction of another. But since a law can only be carried by one who enjoys a legitimate authority, it follows that the power of jurisdiction must be a public or social power.

 

Hence this definition of the power of jurisdiction given by a great number of authors:

 

“Potestas publica circa aliorum regimen seu gubernationem.”

 

(The public power concerns the direction or government of others)

Juris ecclesiastici institutiones, Rome, 1890, p. 214.

 

We spoke a little above of the power of magisterium.

This power, considered in a concrete way, insofar as inseparably united to the power to command obedience of faith, does not adequately distinguish itself from the power of jurisdiction, and this is why common usage recognizes only these two great divisions of ecclesiastical power, namely, the power of order and the power of jurisdiction.

“Potestas magisterii, si spectetur in concreto prout inseparabiliter annexum habet jus imperandi subditis obedientiam fidei, ab ipsa potestate jurisdictionis adaequate non distinguitur et hac de causa usu satis communi recepta est bimembris divisio potestatis ecclesiasticae in potestatem ordinis et potestatem jurisdictionis…” (The power of teaching, if considered concretely insofar as it inseparably includes the right to command subjects obedience of faith, does not adequately distinguish itself from the power of jurisdiction itself, and for this reason, it is quite commonly accepted to adopt a bipartite division of ecclesiastical power into power of order and power of jurisdiction…) Billot, De Ecclesia Christi, Rome, 1903, p. 343.

 

5. In his treatise on the “Principles of Canon Law”, Bouix shows the difference that exists between the conception of the power of jurisdiction in Roman civil law and in ecclesiastical law. Here one of the objects is noticeably more extended: it includes the magisterium and comprises everything that is not of the power of order. Bouix details this object with as much accuracy as care.

 

“The word jurisdiction thus comes from ‘jus dicere’.

In Roman law this word was taken in a completely strict sense. The ancient jurisconsults in fact, distinguished in the State a quadruple power: the supreme power (majestas), the power of government (imperium), jurisdiction and competence (notio). They called majestas the supreme right, source of all others.

– This majestas manifested itself principally in the fact of carrying laws for the common good; in the times of the Republic this supreme right resided in the Roman people; it then passed to the emperors.

– The imperium designated the power to repress the guilty; this is what is also called the right of the sword, jus gladii.

– Under the name of Jurisdiction, one designated the power to know of trials, to judge them, to have sentences executed and to designate the judge. This power always remained with the magistrates.

But since the magistrates could not have executed their judgments if they had not also disposed of some coercive power, a certain right of coercion was granted to them, but of little importance.

Thus it was said that their jurisdiction was mixed with imperium, that it was an imperium mixtum.

– Finally under the name of competence (notio) one understood the power to know of causes and to judge them, but not to have judgments executed and to designate the judge. The judges invested with this power thus corresponded, roughly, among the Romans, to what are among us arbitrators.”

 

“In ecclesiastical law the word jurisdiction has a different sense and extends to a greater number of objects. One relates in fact to jurisdiction:

– the power to define dogma and to oblige the faithful to give to definitions a firm assent;

– the power to make laws relating to discipline and morals;

– the power to know of ecclesiastical causes and to judge them; that to constrain the guilty by penalties such as deposition, suspension, anathema; the right to convene councils and to preside over them; the right to reprimand inferiors, to constrain them to observe commandments and to fulfill their functions suitably: the right to erect benefits and to designate their holders, to dispose of ecclesiastical goods, to alienate them, to make with regard to them all kinds of contract.

Even more some authors understand in a completely general manner under the name of jurisdiction, all power ecclesiastical that is not the power of order, that is to say the power attached, of divine institution, to the character received by ordination. In this sense jurisdiction would imply the magisterium, or power to teach.” D. Bouix, Tractatus de principiis juris canonici, Paris, 1862, p. 544 and 545.

 

By reason of the manner in which it is exercised, jurisdiction divides into voluntary jurisdiction and contentious jurisdiction, or rather, according to Bouix, into judicial jurisdiction and extra-judicial jurisdiction. Everything that the bishop is held to regulate with the apparatus of judgment or under the contentious form, relates to judicial or contentious jurisdiction… Everything that he has the right to decide outside the judicial apparatus belongs to extra-judicial jurisdiction designated by the canonists under the name of voluntary jurisdiction corresponding roughly to what is called, in civil law, administrative jurisdiction. Bouix, op. cit., p. 565.

 

II. Existence of This Power in the Church

 

Jesus Christ gave to his Church a jurisdiction free and independent of all human authority, as much in the external forum as in the internal forum. This jurisdiction includes, but for a higher end, the triple power that belongs to every perfect society: legislative power, judicial power and coercive power.

 

1. In Holy Scripture

 

“I will give you the keys of the kingdom of heaven, solemnly declares Jesus to the apostle saint Peter in a famous circumstance; whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.” Matt., xvi, 19.

Shortly after he addressed the other apostles in the same sense:

“Truly I say to you, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.” Matt., xviii, 18.

 

What can these keys of the kingdom of heaven mean? They simply mean the power of jurisdiction or the authority of command, as it appears from the teaching of Holy Scripture where this metaphor is of constant use, and also from the immemorial custom that consists in giving the keys as a sign of submission or as a mark of investiture of an office. See for the use of the word key in this sense, Isaiah, xxii, 20-23 and the commentary of Fr. Knabenbauer ad hunc locum. In Isaiam, t. I, p. 133.

 

It is therefore a true power of jurisdiction that Our Lord gives to his Church.

This power is universal, suffers no restriction or limit. “Whatever you bind, whatever you loose…”

 

This power is, moreover, independent of all human jurisdiction: what will have been bound on earth will be immediately and remain bound in heaven; what will have been loosed on earth will be equally loosed in heaven. Between the power conferred on the apostles and the heavenly power, there is no intermediary.

The second ratifies the decisions or measures taken by the first, and it does so precisely because of their free and fully independent character.

Peter, the prince of the apostles, was constituted the titular possessor and master of the keys of heaven. Now he would cease to be so from the day when, in the exercise of his authority, he would be submitted to another who could open what he has closed and close what he has opened, bind what he has loosed and loose what he has bound, bind what he has loosed. It is therefore necessary that this power be fully independent.

 

2. In Tradition

 

This doctrine has for it the unanimity of the Fathers.

In two very beautiful pages, Tarquini exposes, in a masterful way, this argument of tradition. The learned cardinal first recalls the testimonies rendered to this doctrine by ecclesiastical authors, saint Athanasius for example, in his Epistola ad monachos, where the bishop of Alexandria accumulates the citations drawn from Hosius, of the sovereign pontiffs Liberius and Julius and of many others. From these ecclesiastical testimonies Roskovány has made a fairly complete inventory in his Monumenta catholica pro independentia potestatis ecclesiasticae. But Cardinal Tarquini especially likes to align a certain number of texts borrowed from lay sovereigns, from those very ones who, little consistent, have sometimes abused force with regard to the Church, such as the judgment passed by the king of France Louis VII the Younger on the case of his colleague Frederick Barbarossa (See Baronius, Annales, an. 1162, n. 10), such as the declarations of Constantine the Great, of Valentinian I, of Honorius I, of Valentinian III, of Theodosius II, of the Arian king Theodoric, of Justinian, and of Charlemagne. See Tarquini, Juris ecclesiastici publici institutiones, Rome, 1890, p. 34-35.

 

III. The Divisions of Ecclesiastical Jurisdiction

 

Ecclesiastical jurisdiction counts numerous divisions, following the different points of view from which one places oneself to study it.

 

A. By reason of the forum. — One distinguishes jurisdiction in the internal forum and jurisdiction in the external forum.

 

The word forum designates etymologically the public place, the forum where justice was rendered and judgments pronounced; from there, by metaphor, justice itself or the tribunal, even immaterial, that renders judgments (one speaks of the internal forum), the place where jurisdiction is exercised and jurisdiction itself.

 

1. Jurisdiction in the internal forum is that which refers first and directly to the private utility of each faithful. It is exercised almost exclusively at the tribunal of penance; in some cases however, it can be exercised outside this tribunal. Hence the subdivision of jurisdiction in the internal forum into internal sacramental forum and internal extra-sacramental forum.

 

2. Jurisdiction in the external forum regards immediately the public utility of the body of the faithful.

“Potestas jurisdictionis seu regiminis quae ex divina institutione est in Ecclesia, alia est fori externi, alia fori interni, seu conscientiae, sive sacramentalis sive extra-sacramentalis.” (The power of jurisdiction or direction, which exists in the Church by divine institution, is divided into power of external forum and power of internal forum or on the conscience. This latter power is sacramental or extra-sacramental.) Codex Juris Canonici, can. 196.

 

One must use a great circumspection, says Berardi, Commentaria in jus can., edit. of Turin, 1710, t. I, p. 12, to define what belongs to the internal forum and what falls under the external forum. Thus, for example, the faculty to preach the Gospel, to absolve from sins or censures, which belongs to the bond uniting the faithful to Christ, is of the internal forum. But the faculty to grant the power to preach, to absolve either from sins or from censures, depends on the external forum, because this faculty has a direct relation with the good of the community.

 

It follows from this that one can have jurisdiction in the internal forum without possessing it in the external forum, and curés are in this case. Conversely there are some who enjoy jurisdiction in the external forum without benefiting from the other. Such would be the vicars general deprived of the priestly character.

 

One understands now the precise sense in which one must understand the adage:

 

“Ecclesia non judicat de internis”

 

At its external forum the Church does not judge internal things, but it does so at its internal forum. He who, knowing it, fulfills the paschal duty with a mortal sin on his conscience, does not violate the external jurisdiction of the Church prescribing the paschal communion, but he unduly withdraws from its internal jurisdiction requiring that this communion be made in a state of grace. To repair his fault, the guilty will have to present himself not before any external tribunal, but uniquely before the tribunal of penance which is eminently of the internal forum.

 

B. By reason of its extent, jurisdiction is universal and particular.

 

a- Universal jurisdiction

 

It is that which suffers no limit, neither as to persons, nor as to places, nor as to matters subject to the power of the Church. Such is the jurisdiction of the Roman pontiff over the whole Church.

 

This universal jurisdiction as to persons and places, but not as to matters, belongs to the Roman Congregations, which are in reality only emanations of the universal jurisdiction of the sovereign pontiff.

 

b- Particular jurisdiction

 

It is that which is restricted to certain determined places like the jurisdiction of the bishop over his diocese, or to certain persons, like the jurisdiction of regular prelates over their monks, or finally to certain matters, such is the jurisdiction granted under the reservation of certain cases.

 

When particular jurisdiction is limited to certain persons, and not to certain places, it can be exercised everywhere. It is thus that a regular prelate can exercise everywhere his jurisdiction over the monks who are subject to him, provided that he does not disturb the jurisdiction of the ordinary of the diocese in which he finds himself.

 

When jurisdiction is restricted to a determined place, the ordinary can, outside his diocese, exercise over his own subjects his extra-judicial or voluntary jurisdiction. Codex, can. 201, § 3.

But it is not the same for his judicial or contentious jurisdiction. Except certain cases, ibid. § 2, 401, § 1, 881, § 2, and 1637, this one cannot be exercised outside the territory that circumscribes his action, can. 201, § 2.

 

C. By reason of the title by which it is conferred, jurisdiction is said ordinary or delegated.

 

– Ordinary jurisdiction is that which, prior to a law or custom, is attached to an office, so that he who enjoys it by proper right, obtains it by reason even of his office.

 

Such is the jurisdiction that common law accords for the internal forum to curés, for the forum both internal and external to bishops, etc. Such is also the jurisdiction that the same law recognizes, but by mode of privilege, to abbots and to other inferior prelates.

 

– Delegated jurisdiction, on the contrary, is that which one does not have by proper right, that is to say by reason of the office or dignity, but by virtue of a commission received from another in whose name it is exercised.

 

This last division, because of its importance, demands some explanations.

 

1. Ordinary jurisdiction. —

 

The Code of Canon Law gives this definition: “Potestas jurisdictionis ordinaria ea est quae ipso jure adnexa est officio…”, (§1. The ordinary power of jurisdiction is attached by the law itself to the office: delegated power is communicated to the person.) can. 197, § 1.

 

He who possesses this jurisdiction in its fullness is called for this reason Ordinary.

In law, unless expressly excepted, one understands, under the name of Ordinary, besides the Roman pontiff, for their respective territory the residential bishop, the abbot or prelate nullius and their vicar general, administrator, vicar and apostolic prefect, likewise he who to the aforesaid failing interim by prescription of law or by approved constitutions succeeds in government, for their own subjects the major superiors in clerical exempt religions.

“In jure nomine Ordinarii intelliguntur, nisi quis expresse excipiatur, praeter romanum pontificem, pro sui quisque territorio episcopus residentialis, abbas vel praelatus nullius eorumque vicarius generalis, administrator, vicarius et praefectus apostolicus, itemque ei qui praedictis deficientibus interim ex juris praescripto aut ex probatis constitutionibus succedunt in regimine, pro suis vero subditis superiores majores in religionibus clericalibus exemptis.” (“ §1. In law are recognized as ‘Ordinary’ (unless expressly excepted), besides the Sovereign Pontiff, the residential bishops with their vicars general, the abbots and prelates nullius with their vicars general, the apostolic administrators, the vicars and apostolic prefects, each for his territory, as well as those who, to the aforesaid failing, interim by prescription of law or by approved constitutions succeed in government; and are also ‘Ordinary’ for the orders of exempt religious priests the major superiors towards their subjects.”) Can. 198, § 1.

It must be remarked, however, that these last do not have right to the title of Ordinaries of the place or places. Ibid. § 2.

 

a. How is ordinary jurisdiction acquired? —

 

The ordinary means of acquiring jurisdiction are four in number, namely: election, postulation, collation, institution to which is attached the right of patronage.

 

In effect, an ecclesiastical office can be obtained either by the free will of him who accords it and can dispose of it, or in conformity with a law that determines its collation.

In the first case, we have the free collation of the benefit.

In the second case, the law in question can prescribe that the office will be conceded to him who will have gathered the majority of suffrages in the prescribed circumstances, and it is election.

If one arrives at this office by a subsidiary mode, one has postulation.

Finally if it is question of a right already existing, it is institution or the right of patronage. Sanguinetti, op. cit., p. 223-224.

 

i.- Election is defined:

 

“The canonical call of an idoine person to a vacant prelature in a Church, or to some ecclesiastical office, election made by the suffrages of legitimate electors and to confirm subsequently by the competent superior.”

 

The canonists extend at length on the rules to observe for the validity and liceity of election; the Code of Canon Law devotes about twenty canons to it. Can. 160-178, 2390-2393. We do not have to enter here into these details. Let us simply recall that election presents itself under a triple form.

– Or the electors barely assembled, and without there being any tractation beforehand, agree from the outset and unanimously on a name. It is quasi-inspiration, quite extraordinary.

– In other cases the electors, by common accord, remit to some persons chosen either in their assembly, or even outside it, the care to designate the elected. It is the procedure by compromise, means that one can call subsidiary, in this sense that it is employed only if the regular means of scrutiny fails.

– In scrutiny one gathers, following the mode foreseen for each particular case, the suffrages of all those who being electors by right have wanted or been able to gather. Sanguinetti, op. cit., p. 226-227.

 

ii. – Postulation:

 

in the strict sense of the word, it is a petition made for a just cause by all the electors, or at least by the majority of them, petition addressed to the legitimate superior to the effect of asking him, by the fulmination of a dispensation of ordinary accorded, the lifting of a canonical impediment opposing the election of their candidate.

 

Postulation, to have all its force, must gather the majority of suffrages and, at least two thirds, when it is in concurrence with election. Can. 180, § 1.

 

Postulation must be sent within eight days to the superior to whom it belongs to confirm the election, if however he has the power to dispense from the impediment in question; otherwise it is to the sovereign pontiff or to some other enjoying this power. If postulation has not been sent within the prescribed delay, it becomes null by the fact itself, and the electors are deprived for this time of the right to elect or to postulate, unless they establish that an obstacle serious has prevented them from making this sending. Postulation confers no right on him who is its object, and it is lawful for the superior to reject it. But the electors cannot revoke a postulation presented to the superior, unless the latter consents. Can. 181, § 1, 2, 3, 4.

 

If postulation is admitted, notice of it is given to him whose nomination one asks; this one within eight days, must make known if he accepts or not the call of which he is the object. In case of acceptance, he enters by full right into the possession of his office. Can. 175, 182, § 2 and 3.

 

iii. – Collation:

 

It is the third of the modes used to acquire ecclesiastical jurisdiction.

Taken in a broad sense, this word designates all concession of ecclesiastical benefit, whether this depends entirely on the free will of him who gives the benefit, or is submitted to laws;

but, in its strict sense, it limits itself to the first of these two acceptions. It is uniquely this one that we must envisage here.

Thus understood, collation is defined: “Vacantis beneficii ecclesiastici, ab eo cui tale jus competit, libere facta idoneae personae concessio”.

 

(“The free concession of a vacant ecclesiastical benefit, made by him to whom this right belongs, to an idoine person.”) Sanguinetti, op. cit., p. 231.

 

As one sees, collation comprises four elements:

 

– The vacancy of the benefit that is conceded;

– a legitimate power in the collator;

– the fact for him who receives the benefit, to be idoine person;

– finally, unless it is question of the sovereign pontiff, the observation of all the laws established by ecclesiastical law in the matter.

 

iv. – Institution (and the right of patronage)

 

Benefits ecclesiastical and the ecclesiastical jurisdiction that is annexed to them can be obtained in such manner that the collator must confer the benefit on him whom a determined person will have presented to him by virtue of a right. It is a new mode of collation. He who has the right to make this presentation is called patron, and the right that he enjoys right of patronage.

Hence this definition of the right of patronage:

“Jus seu potestas nominandi, sive praesentandi clericum idoneum, ei ad quem institutio pertinet, ut beneficium vacans, quod ejusmodi juri subjectum est, eidem concedat”.

(“The right or power to name or to present an idoine clerk to him to whom institution belongs, so that he concede to this one a vacant benefit submitted to this right.”) Sanguinetti, op. cit., p. 235.

 

It results from this definition that if the subject presented by the patron has the qualities required by common law as well as by the law of foundation, he has the right to be provided with the office requested.

It in the contrary, he can be refused by the superior authority.

 

All the faithful, and even moral persons like monasteries and chapters, can acquire the right of patronage.

 

To the right of patronage is attached the right conceded to certain sovereigns, by virtue of concordats passed with the Holy See, to name or designate the subjects to episcopal sees. But the office itself, with the ecclesiastical jurisdiction, or the right on the thing, jus in re, is not conferred by election or presentation.

It is, in effect, the first rule of law, that “an ecclesiastical benefit cannot be licitly obtained without canonical institution”: “Beneficium ecclesiasticum non potest licite sine institutione canonica obtineri”. Sext. Décret., l. V, tit. xii, De regulis juris, 1. —

 

Pie IX, in the Syllabus, condemned the proposition following:

“Laica potestas habet per se jus praesentandi episcopos, et potest ab illis exigere, ut ineant dioecesium procurationem, antequam ipsi canonicam a Sancta Sede institutionem et apostolicas litteras accipiunt.”

(“The lay power has, by itself, the right to present bishops and can require of them that they undertake the management of the dioceses before they receive the canonical institution and the apostolic letters from the Holy See.”)

Prop. 50, Denzinger-Bannwart, n. 1750.

 

In the second half of the xiiiᵉ century, Gregory X, by a general constitution, decreed at the second council of Lyon, that no one, in the future, had the presumption to interfere, in one manner or to one title whatever, in the administration of the dignity to which he has been elected, before this election has been confirmed.

 

“Nos latius providere volentes, hac generali constitutione sancimus: ut nullus de coetero, administrationem dignitatis ad quam electus est, priusquam celebrata de ipso electio confirmaretur, sub oeconomatus vel procurationis nomine, vel alio de novo quaesito colore, in spiritualibus vel temporalibus, per se vel per alium, pro parte vel in totum, gerere vel recipere, aut illis se immiscere praesumat. Omnes illos, qui secus fecerint, jure (si quod eis per electionem quaesitum fuerit) decernentes eo ipso privatos.”

(“Wanting to provide more widely, we establish by this general constitution: that henceforth no one may, before the election to a dignity is confirmed, under the name of oeconomy, of procuration or under any other newly sought color, manage or receive, in whole or in part, directly or by the intermediary of another, spiritual or temporal affairs, or interfere in them. We decree that all those who would act otherwise are, by this fact, deprived of the right (if a right had been acquired to them by election).”)

Sext. Décret., l. I, tit. vi, c. 5.

 

On August 28, 1873, Pie IX, in his Constitution Romanus Pontifex declared to extend, to those who were named and presented by the sovereigns, whatever their name, what had been prescribed for the elected of chapters:

“Declaramus et decernimus ea quae a Gregorio X decessore nostro in concilio Lugdunensi II° de electis a capitulis, constituta sunt comprehendere etiam nominatos, et praesentatos a supremis publicarum rerum moderatoribus, sive imperatores sint, sive reges, sive duces, vel praesides et quomodocumque nuncupentur, qui ex S. Sedis concessione, seu privilegio jure gaudent nominandi et praesentandi ad sedes episcopales in suis respectivis ditionibus vacantes.”

(“We declare and decree that the dispositions established by our predecessor Gregory X at the II Council of Lyon concerning the elected by chapters comprise also the named, and presented by the supreme moderators of public affairs, whether they be emperors, kings, dukes, presidents or whatever their title, who enjoy, by concession or privilege of the Holy See, the right to name and to present candidates to episcopal sees vacant in their respective dominions.”)

Acta Sanctae Sedis, t. vii, p. 403.

 

This canonical institution is made by the superior or by virtue of a disposition of law:

1. by the superior, when this one, by a special act and accomplished on the hour, confers on a clerk an ecclesiastical benefit;
2. by virtue of a disposition of law, when by a written law or a custom it has been ruled that the elected can, without further recourse to the superior, exercise immediately the office to which he has been called.

 

When institution is given by the pope, it is necessary to produce the apostolic letters and this presentation made following rules fixed by law, is rigorously necessary for the entry into function.

 

The thing is thus ruled by Boniface VIII:

 

“Praesenti itaque perpetuo valitura constitutione sancimus ut episcopi et alii praelati superiores, necnon abbates, priores et, qui apud Sedem Apostolicam promoventur, aut confirmationis, consecrationis, vel benedictionis munus recipiunt, ad commissas eis Ecclesias, et monasteria absque dicta Sedis litteris hujusmodi, eorum promotionem, confirmationem, consecrationem seu benedictionem continentibus accedere, vel bonorum ecclesiasticarum administrationem accipere non praesumant, nullique eos absque dictarum litterarum ostensione recipiant, aut eis pareant et intendant. Quod si forsan contra praesumptum fuerit: quod inter episcopos, praelatos, abbates, priores medio tempore actum fuerit, irritum habeatur.”

 

“By the present constitution, which will remain in force perpetually, we decree that bishops and other superior prelates, as well as abbots, priors and those who are promoted at the Apostolic See, or who receive from it the confirmation, consecration or blessing, do not go to the churches or monasteries entrusted to them, nor assume the administration of ecclesiastical goods, without the letters of this See mentioning their promotion, confirmation, consecration or blessing. No one must receive them, obey them or attend to them without the presentation of the said letters. If, by chance, it was presumed to act contrary to this rule, all that would have been accomplished meanwhile by the bishops, prelates, abbots or priors will be held null.”

Extravag. Comm., l. I, tit. iii, De electione, c. i. Cf. Pie IX, constitution Romanus pontifex, cited above.

 

In the bull Apostolicae Sedis (October 13, 1869), Pie IX strikes with suspension, to incur ipso facto, all those who would infringe this rule. Cf. Cod., can. 2394.

 

b.How can ordinary jurisdiction be restricted? —

 

Ecclesiastical jurisdiction can be restricted in three ways, namely: by exemption, reservation, and appeal.

 

i.Exemption

 

It is a privilege by virtue of which a person, a community or a place are withdrawn from the jurisdiction of an ordinary of inferior order to depend immediately on a superior prelate.

 

Whoever recognizes the various degrees of jurisdiction existing in the Church, degrees that scale harmoniously one above the others, presenting a continuous character of liaison and dependence, could not deny the validity of exemptions.

Their utility, whatever it may be of abuses always possible, is especially manifest for religious orders.

In effect, they protect the unity of religious families, favor in general discipline regular and preserve communities from a thousand inconveniences resulting from shocks as inevitable as painful. Cf. Bouix, Tractatus de jure regularium, t. ii, Paris, 1857, p. 110-120.

 

ii. Reservation

 

It is an act that withdraws in a permanent way from ordinary jurisdiction a special matter that the superior keeps for himself or attributes to another. Reservation bears on jurisdiction as much in the internal forum as in the external.

 

The council of Trent, sess. xiv, c. 7, on penance, shows the high convenience of reservations and exposes their salutary scope.

“It seems to us, it says, that it imported sovereignly to the good order of the Christian people, that certain crimes more particularly odious and grave were not absolved by anyone, but only by the highest echelons of the hierarchy (a summis duntaxat sacerdotibus).

Also it is with just title that the sovereign pontiffs, given the supreme power that is conferred on them over the Church, have reserved to their special judgment certain criminal causes more grave.

And there is no reason to doubt that the bishops do not possess, each in his diocese, the same facility, that it is fitting besides to exercise not to destroy, but to edify, given the superior authority that they enjoy with regard to simple priests.

It is thus that an imperium is designed the right to repress the guilty; it is what one calls also the right of sword, jus gladii.”

 

iii. Appeal

 

It is the legal recourse to a superior judge after a sentence carried by an inferior judge, sentence where the plaintiff believes himself, wrongly or rightly, injured in his interests or on the point of being so.

 

One distinguishes judicial appeal and extra-judicial appeal, following whether the reason that motivates it is founded or not on a rendered judgment.

 

Appeal can have a double effect: or it is simply devolutive, or it is at the same time suspensive.

All appeal, made in the required conditions, produces a devolutive effect. It is that which transfers the whole cause to the judge before whom appeal is interjected, so that, after having known the well-foundedness of the appeal, he can examine the principal cause with its accessories, and if need be, carry a new sentence.

 

Judicial appeal has, regularly, a suspensive effect; it binds the jurisdiction of the first judge, so that he cannot proceed to the execution of the sentence that he has carried. In the case, on the contrary, of an extra-judicial appeal, there is not, regularly, suspensive effect but only devolutive.

Codex, l. IV, tit. xiv, c. i. De appellatione, can. 1879-1891.

 

c. How is ordinary jurisdiction lost?

 

In two principal ways, following the quality of the will that is the cause of it. This will can be or that of the beneficiary or that of his legitimate superior. In the first case, it is renunciation; in the second, translation or deprivation.

 

i.Renunciation

 

It is the free cession of an office or ecclesiastical benefit, made for just causes, before the legitimate superior who accepts it.

 

It is express or tacit, following whether the beneficiary demits himself of his benefit into the hands of the superior, by word of mouth or in writing, or that on the contrary he poses a fact that which, according to a presumption of law, implies renunciation.

 

Express renunciation, itself, is simple or conditional:

 

simple, when it is pure and absolute;

conditional, when there is added to it a condition in favor of him who resigns or of a third person.

 

A just and legitimate cause is always required for renunciation to a benefit; otherwise the superior could not accept it.

 

These causes are summed up in these two verses:

“Debilis, ignarus, male conscius, irregularis, Quem mala plebs odit, dans scandala, cedere possit.”

(“Weak, ignorant, of bad conscience, irregular, hated by a bad crowd, giving scandals, that he can cede.”) Cf. Décret. Greg. IX l. I, tit. ix, c. 10.

 

Renunciation or resignation must be accepted by the legitimate superior.

“Beneficiarius sine licentia praelati sui beneficio renunciare non potest,” (“The beneficiary cannot renounce his benefit without the permission of his prelate.” ) declares the pope Alexander III, Décret. Greg. IX, l. I, tit. ix, c. 4. Cf. Cod., l. III, tit. xxv, can. 1484-1489.

 

The sovereign pontiff, who has no superior on earth, can freely demit himself.

“Romanus Pontifex potest libere papatui renunciare.” (“The Roman Pontiff can freely renounce the papacy.”) Sext. Décret., l. I, t. vii, c. 1.

 

As it results from the definition itself, this renunciation must be voluntary and free. Once the resignation accepted, the beneficiary loses all right on his benefit and finds himself, by the same blow, freed from all obligation to its subject.

 

ii.Translation:

 

It is the change of an ecclesiastical person who passes from one office to another office, from one Church to another Church.

It implies two things, namely: cessation and, at the same time, acquisition of jurisdiction, because it implies a double term marked by the point of departure and that of arrival.

 

Translation cannot obviously be made outside the authority of the competent superior.

It is legitimate only if it is justified by an evident utility or a true necessity. Cod., can. 1421, 1422, 1426, 1428.

 

iii. Deprivation

 

It is the act by which an ecclesiastical superior destitutes a clerk of his office.

This act is extra-judicial or judicial.

The first is posed by the revocation of him who has an office amovible at the pleasure of the collator;

the second, by the destitution of inamovible offices, that is to say, conceded to title perpetual.

To dispossess of these last, a sentence of the judge is required. The pope, however, by virtue of the fullness of his power, can, without any form of judgment and for the sole reason of the good public, deprive of his office any titular, were he bishop or even cardinal. Cod., can. 2298, 2303 and 2304.

 

See Saint Thomas in Summa Theologica, IIa IIae, q. 39, a. 3 (corpus)

 

“There are two spiritual powers: the sacramental power, and the jurisdictional power. The sacramental power is that which is conferred by a consecration. All the consecrations of the Church are immutable, as long as the consecrated thing lasts; one sees it even for inanimate things; thus an altar once consecrated is not consecrated anew unless it has been destroyed. It is why such a power, according to its essence, remains in him who has received it by consecration as long as this one remains in life, would he stray in schism or heresy. This is clear of the fact that he is not consecrated anew if he returns to the Church. But, because an inferior power must not pass to the act except under the motion of a superior power, as one sees it even in the things of nature, it results from it that these men lose the use of their power and that it is no longer permitted to them to use it. If they use it however, their power obtains its effect in the sacramental domain, because in this one man acts only as instrument of God; also the sacramental effects are not annulled by no matter what fault in him who confers the sacrament. As for the power of jurisdiction, it is conferred by simple investiture human. This power does not remain immutable. And it does not subsist in schismatics and heretics. It is why they can neither absolve, nor excommunicate, nor give indulgences, nor do something of this kind; if they do it, nothing is produced.”

 

2. Quasi-ordinary jurisdiction.

 

One distinguishes from ordinary jurisdiction the quasi-ordinary jurisdiction, or vicaria, which is exercised in certain precise cases, determined by law, but not in a regular and uninterrupted manner.

“Potestas (jurisdictionis) ordinaria potest esse sive propria sive vicaria.”

(“The power (of jurisdiction) ordinary can be either proper or vicar.”) Can. 197, § 2.

 

This jurisdiction belongs to the chapter or to the capitular vicar during the vacancy of the episcopal seat, to legates, to persons who have received from the pope the mission to protect, to maintain in their rights and privileges, certain persons or religious corporations, such as universities, convents, congregations, etc.

 

3. Delegated jurisdiction.

 

Delegated jurisdiction is that which one possesses not by proper right, that is to say by reason of the office or dignity, but by virtue of the commission given by another whose place one holds.

 

“Jurisdictio delegata ea est quam quis non habet jure proprio, hoc est, non ratione sui officii aut dignitatis, sed solum ex commissione alterius cujus vice fungitur.”

(“Delegated jurisdiction is that which a person does not have by his own right, that is, not by reason of his office or dignity, but only by the commission of another whose vicar he is.”)

Reiffenstuel, In I Décret., i, 29, n. 11.

 

The code defines it still more briefly: “Potestas delegata ea est quae commissa est personae.”

(“Delegated power is that which is committed to the person.”) Can. 197, § 1.

 

Whoever has a jurisdiction ordinary can thus subdélégate it in whole or in part, to a person, unless a disposition contrary of law. Can. 199, § 1.

 

But can a delegated jurisdiction in its turn be subdélégated?

 

Here are the precise answers of the Code.

The delegate of the pope has generally the right to subdélégate, unless the contrary is expressly commanded by the circumstances. Can. 199 § 2.

Likewise a power delegated for the universality of causes by him who enjoys an ordinary power below the pope, can be subdélégated in each case. Ibid., § 3.

In the other cases, the power of delegated jurisdiction can be subdélégated only by virtue of a concession expressly made.

However the delegated judges can subdélégate, without a formal commission, an article non jurisdictional. In other terms, delegation is generally admissible when delegation does not relate properly to an act jurisdictional. Ibid., § 4.

Unless an express concession, no subdélégated power can anew be subdélégated. §5.

 

As for the extension of delegated jurisdiction it depends, that goes without saying, on the will of him who gives delegation, it must therefore, be interpreted in a strict sense unless it is question of a delegation ad universalitatem causuum. Can. 200, § 1. It is to the delegate to furnish the proof of his delegation.

 

The jurisdictional power of a delegate does not begin until he has his full powers in hand; before that, all the acts of jurisdiction that he accomplishes are struck with nullity, as well as those that he pursues by overstepping his powers.

However he does not exceed them if, in the execution of his mandate, he takes another means than that which pleases the mandant, unless the neglected means had been prescribed as condition. Can. 203, § 1 and 2.

 

One can also establish simultaneously several delegates for a single and same affair.

 

Then several hypotheses are to envisage:

– If each has received commission for the whole affair, it is to him who has begun it to decide it, unless he is prevented in the suite or he does not want to continue it.

– If each has not received this commission, no delegate must act without the other, unless a disposition contrary expressed in the mandate.

In doubt, one must presume the first case when it is question of an extra-judicial affair, and the second case when it is question of a judicial affair. When several have been successively delegated for the same affair, this one must be treated by him who has received a mandate prior to the others. Can. 205, § 1, 2 and 3.

 

From the decision of the delegate one can appeal to the mandant; but when a delegate of the pope has subdélégated all his commission to another, the appeal must be addressed directly to the pope.

 

A delegation expires by the accomplishment of the mandate, by the flowing of the time fixed or the exhaustion of the cases limiting the mandate, by the cessation of the end of the delegation, by the revocation of the mandant, revocation intimated directly to the delegate, or by the renunciation of this one, renunciation signified to the mandant and accepted by him.

 

Delegation ends always at the death of the delegate, when the full powers have been personally accorded to him. If it has been octroyed to him because invested with a determined function, it passes to his successor in the function. Finally, when several have been simultaneously delegated for a single and same affair, and that none of them has received commission for the whole affair, the death of one makes cease delegation for all the others, unless another disposition results from the tenor of delegation. Can. 207, § 1 and 3.

 

IV. Subject of the Power of Jurisdiction

 

Several conditions are required in the subject of ecclesiastical jurisdiction.

 

1° The first is the clerical state,

 

For laymen have received no power to dispose of the things of the Church; they have the duty to obey, not the authority to command.

“Quum laicis, quamvis religiosis, disponendi de rebus Ecclesiae nulla sit attributa potestas, quos obsequendi manet necessitas, non auctoritas imperandi.”

(“Since laymen, even religious, have received no power to dispose of the affairs of the Church, it remains for them the necessity of obeying, not the authority of commanding.”)

Décret. Greg. IX, l. III, tit. xiii, c. 12.

 

Hence this formal order intimated to laymen not to mix in ecclesiastical things:

“Decernimus ut laici ecclesiastica tractare negotia non praesumant.” Ibid., l. II, tit. i, c. 2.

 

As for the woman, she is not susceptible, at least of ecclesiastical right, to receive jurisdiction in the Church. It is the common sentiment of theologians and canonists. Cf. Bouix, Tractatus de jure regularium, t. ii, p. 452 sq.

 

Saint Thomas gives the reason:

 

“Dicendum, quod mulier, secundum Apostolum, est in statu subjectionis: et ideo non potest habere aliquam jurisdictionem spiritualem; quia etiam secundum Philosophum in VIII Ethic., c. vii et I Polit., cap. ult., corruptio urbanitatis est, quando ad mulierem pervenit dominium: unde mulier non habet neque clavem ordinis nec clavem jurisdictionis. Sed mulieri committitur aliquis usus clavium sicut habere correctionem in subditas mulieres, propter periculum quod imminere posset, si viri mulieribus cohabitarent.”

(“It must be said that the woman, according to the Apostle, is in a state of subjection: and therefore she cannot have any spiritual jurisdiction; for, according to the Philosopher, in the eighth book of Ethics, chapter seven, and the first book of Politics, last chapter, there is corruption of civility when power falls to a woman: thus, the woman has neither the key of order nor the key of jurisdiction. But it is permitted to a woman to exercise a certain use of the keys, as to have the power to correct the women who are subject to her, because of the danger that could impend, if men cohabited with women.”)

In IV. Sent., dist. XIX, q. i, a. 1, q. 3, ad 4um. Cf. Décret. Greg. IX, l. V, tit. xxxviii, c. 10.

 

2° The second condition is the degree of the hierarchy of order required by the dignity or the office to obtain.

Pope Innocent IV, at the general council of Lyon, in 1245, establishes that every clerk called to govern a Church must, in the same year, receive the order of the priesthood. If he does not do it, he is by right and without other monition deprived of his charge. Sext. Décret., l. I, tit. vi, c. xiv.

 

The council of Trent, sess. xxiii, de Reform., c. xii, renews and confirms the dispositions of this decree, but in specifying, for the required age, that it suffices to have begun the 25th year:

“Nemo… promoveatur nisi qui saltem vigesimum aetatis suae annum attigerit.” Cod., can. 974, § 1.

 

3° Age, honesty of morals and competent science are enumerated among the conditions of rigor to obtain jurisdiction.

 

3.- Age and honesty

 

The same Innocent IV, at the council of Lyon, carries the decree following, which fixes at twenty-five years the inferior limit of age for benefits with charge of souls:

“Praesenti decreto statuimus: ut nullus ad regimen parochialis ecclesiae assumatur, nisi sit idoneus moribus, scientia et aetate; decernentes collationes de parochialibus ecclesiis, iis qui non attigerint vigesimum quintum annum, de caetero faciendas, viribus omnino carere.”

(“By the present decree, we establish: that no one be admitted to the direction of a parochial church unless he is idoine by his morals, his science and his age; we decree that the collations of parochial churches made henceforth to those who have not attained the age of twenty-five years are entirely deprived of validity.”)

Sext. Décret., l. I, tit. vi, c. xiv.

 

The council of Trent, sess. xxiv, de Reform., c. xii, renews and confirms the dispositions of this decree, but in specifying, for the required age, that it suffices to have begun the 25th year:

“Nemo… promoveatur nisi qui saltem vigesimum aetatis suae annum attigerit.” Cod., can. 974, § 1.

 

 – Science

 

Although an eminent science is desirable in a pastor of souls, says Innocent III, the Church tolerates that he have only the competent science. Décret. Greg. IX, l. I, tit. ix, c. x.

Eminent science resolves immediately all the difficulties that can present themselves in the complicated exercise of a charge. By competent science, but sufficient, one is able to respond correctly to ordinary difficulties; as for those that are specially arduous, one is carried to doubt wisely and to consult.

 

But this science demands to be proved, and to access to certain high functions of the ecclesiastical hierarchy, it is necessary, says the council of Trent, to produce the titles of doctor or of licentiate in theology or in canon law.

The public testimony of some academy attesting the capacity to teach can supply for it. It is question in the text of those who can be promoted to cathedral Churches.

“Scientia vero ejusmodi polleat ut muneris sibi injungendi necessitati possit satisfacere; ideoque antea in universitate studiorum magister, sive doctor, aut licentiatus, in sacra theologia vel jure canonico, merito sit promotus, aut publico alicujus academiae testimonio idoneus ad alios docendos ostendatur.”

(“Let his science be such that he can respond to the necessities of the office enjoined on him; and for this reason, that he have been beforehand promoted, with merit, to the degree of master, doctor or licentiate, in sacred theology or in canon law in a university of studies, or that he be shown, by the public testimony of some academy, idoine to teach others.”)

Sess. xxii, de Reform., c. ii.

 

According to the Code, the candidate to the episcopate must theoretically be doctor or at least licentiate in theology or in canon law: in default of these titles, it is necessary for him at least to be very versed in the said disciplines, earum disciplinarum vere peritus. Can. 331, § 1, and can. 50.

 

The same conditions of science are demanded of the vicar general. Can. 367, § 1. The canons 1598, § 2, 1589, § 1, 2017, 1018, 399, § 1, 1356, § 1 enumerate the cases where the title of doctor either in theology, or in canon law is theoretically required or, at least, is deemed to justify the preference of him who is provided with it.

 

4° The most worthy

All these qualities reunited are required in the subject of jurisdiction ecclesiastical and render him worthy of the office to which he is called; but several can reunite these same qualities, and then to whom must one give the preference? To the most worthy.

It is the formal teaching of the council of Trent. One feels piercing a true emotion in the text where it begs all those who, in one manner or another, have part in ecclesiastical promotions, to let themselves be guided by no other consideration than that of the superior interest of the Church: they would sin mortally, it adds, if they did not choose those whom they judge the most worthy and the most useful to the common good:

“eosque alienis peccatis communicantes mortaliter peccare nisi quos digniores et Ecclesiae magis utiles ipsi judicaverint non quidem precibus vel humano affectu, aut ambientium suggestionibus, sed eorum exigentibus meritis praeferre diligenter curaverint.”

In english :

“and those who participate in the sins of others sin mortally, unless they have taken care to prefer, with diligence, those whom they have judged more worthy and more useful to the Church, not by prayers, by human affection or by suggestions of solicitors, but by merits required before others.”

(Sess. xxiv, de Reform., c. i.)

 

Pope Innocent XI condemned the proposition following: “When the council of Trent declares that those ‘participate in the sins of others and sin mortally who do not elevate to the honors of the Church those whom they estimate the most worthy and the most useful to the Church’ the council, by these words: ‘the most worthy’ wants to say simply ‘those who are worthy’ by taking the comparative for the positive, or well finally it speaks only of the cases where there is competition.”

(Prop. 17; Denz.-Bannw., n. 1197).

 

This greater dignity is not measured by superiority in doctrine, honesty of life or nobility of birth, but by superiority of all the qualities of soul and body, joined to a special aptitude to govern, so that, all things well considered, the subject in question is judged more useful than any other in the post to which he aspires or is called.

 

There is there obviously matter for many personal appreciations. Saint Thomas, specifying still more says, in presenting a typical example, that the best bishop to choose is he who appears the most apt to govern such Church. “The ecclesiastical ministry is not entrusted to men to assure them the remuneration of the century to come. And from then he who must choose someone as bishop is not held to choose him who is, absolutely speaking, the best following the order of sanctifying grace but him who is the best for the government of the Church, capable to instruct it, to defend it, to govern it peacefully.” Sum. theol., IIa IIae, q. clxxxv, a. 3.

 

V. Object or Matter of the Power of Jurisdiction in the Church

 

1° Distinction between the external forum and the internal forum.

 

In all the extent of the power of the keys instituted by Christ, says Cardinal Billot, it is necessary to distinguish a double mode of jurisdiction, following that, in the exercise of its jurisdiction, the Church plays the role of principal cause or well that of instrument of God.

The first mode consists first and principally to bind, and although it extends to all matter whose enchaining leads to the end of the kingdom of heaven, directly however and in itself it aims at the sole external acts.

The second mode contributes especially to loose, not assuredly of divine laws either natural or positive, but only of the attachments, still naturally susceptible of being broken, that particulars have contracted by their own acts, a for even of God. De Ecclesia Christi, Rome, 1903, p. 466.

 

It is to express, in another manner, the distinction between the external forum and the internal forum.

The Church has a forum of its own, external and public, as civil society possesses its own. But, besides this forum, there is the forum of God; it is the internal forum, or the forum of conscience.

In the forum of God reigns the divine law as such and there are contracted the obligations; there equally is incurred moral responsibility and is contracted culpability entailing the penalties of future life.

 

The Church has jurisdiction as much in the external forum as in the internal, but in a different manner.

In the first case, it acts as principal cause and its role consists especially to bind; in the second case, it is as instrumental cause, and then its principal mission is to loose. It has the power to bind all that can be bound on earth to attain the end of the kingdom of heaven, and that in the assigned limits, in all order, to a human legislator. Billot, op. cit., p. 470. It is the sense of the celebrated word of Our Lord to saint Peter: “I will give you the keys of the kingdom of heaven, and whatever you bind on earth will be bound in heaven.” Matt., xvi, 19.

 

Its power to loose is exercised not evidently on divine laws of which no human authority could exempt, but uniquely on the bonds contracted by individuals by reason of divine law. Obligations are assumed because of submission to the law, or faults are committed by violation of this same law; it is a double bond that enchains the individual, without it being possible for him to disengage himself of it by himself. The Church, acting as instrument of God, comes to deliver him of it, and it is the principal object of its power of ministerial jurisdiction. Billot, op. cit., p. 475.

 

2° Object of jurisdiction in the external forum. —

 

This jurisdiction presents itself under a triple aspect. The titular of jurisdiction in the interest common of the grouping that is entrusted to him carries laws; of these laws he watches over the execution, he is thus led to judge either the litigious cases that raises the application of laws, or the individuals who have contravened the regulations carried; these judgments he must make execute. Thus jurisdiction ramifies in a triple power: legislative, judicial, coercive. We will consider it here as being the general power of the Church, whatever it may be of the persons in whom resides this power.

 

2.1. Legislative Power of the Church. —

 

It has for object as much the things concerning faith and morals, as the questions of discipline. But in the things of faith and morals, the obligation of the ecclesiastical law comes to join to the obligation of divine right; in matter of discipline, all the obligation is of ecclesiastical right.

Always however the privilege of infallibility accompanies the exercise of the supreme legislative power of the Church.

This one, in effect, by suite of a special assistance of God, cannot never establish or approve a discipline that would be radically opposed to the rules of faith and of sanctity of the Gospel. The question of legislative power is treated in detail at the art. Church t. iv, col. 2200 sq. of the D.T.C.

 

2.2. Judicial Power. —

 

The existence of such a power could not be contested except by those who deny to the Church the character of perfect society; this right is the natural consequence of legislative power. From there that a society is invested with the right to carry laws, it is by the fact even obliged to judge.

 

A first form of judgment is that which one can call the repressive or penal form. From that a law carried by the superior authority is transgressed, there is place to punish or to repress the author of the transgression. Summary or complicated, expeditious or prolonged, a procedure is necessary, which shows first the culpability of the accused, that applies to him then the convenient sentence.

 

A second form of judgment is that which one can call contentious. Of their nature laws are general, they cannot aim at the complexity of particular cases; a declaration of social authority is necessary to show which law, or which combination of legislative texts, must play in a determined case. Laws are multiple, they can find themselves, at a determined moment, in apparent conflict; there is place to cut the differend that seems thus to rise. Societies, even imperfect, are already led by the force of things to sketch, for their private use, a beginning of judicial organization. A syndicate, a club, as it has its laws, has its special tribunals, if need be its jury; how the Church, perfect society, would not have thought from the beginning of its existence to organize, in its bosom, a judicial administration?

 

History

 

In fact from the first years of its existence, one sees it render not only doctrinal judgments, but true judicial sentences. The case of saint Paul, condemning at distance the incestuous of Corinth is the first type of a penal judgment, I Cor., v, 1-5; the prescription that he makes to neophytes to submit their differends to the arbitration of their brothers and, without doubt, to that of the directors of the community provides us a type of contentious jurisdiction, I Cor., vi, 1-8.

 

The history of councils would offer an incalculable number of examples of ecclesiastical judgments; the cases of species, the questions of culpability of such or such person, the differends between prelates, between ecclesiastical authorities and lay powers who believe themselves, wrongly or rightly, injured by these, the contestations even between laymen on points that touch near or far to religious questions, all that has held in ecclesiastical assemblies, imposing or restricted, a place much more considerable than doctrinal, moral or disciplinary decisions. Councils were, in the past, judicial assemblies as much and more than legislative assemblies.

 

We do not have to make here the history of judicial institutions in the Church: this history falls under canon law. Let it suffice to indicate that in good time has been found constituted the episcopal tribunal, functioning in each diocese, following rules more or less neatly defined.

 

The superior instance has been longer to disengage and it is here especially that provincial councils or regional have played the role of court of appeal. The supreme instance functions from the very first times; it is from the origins even that one sees carry to the tribunal of the successors of saint Peter the multiple differends that arise in the diverse Churches. The innumerable Roman synods, where the popes gather with the clergy of Rome, a number more or less imposing of Italian bishops (suburbicarian in the ancient sense of the word) constitute the supreme instance. One can say that the system operates already at the ivᵉ century, at the peace of the Church, without wanting to exclude by that decisions taken previously. Thus episcopal tribunal, supreme pontifical court appear to us as extremely ancient wheels of ecclesiastical justice.

 

The question of competence will be much longer to clarify. It subdivides itself into two others.

What are first the matters that fall under the ecclesiastical forum?

What are the attributions of the diverse superposed tribunals?

On the first point the Code of current right is very precise: “The Church, it says, knows of a proper right and exclusive:

1. Of causes that regard spiritual things or that are connected to them;
2. of the violation of ecclesiastical laws and of all affair where intervenes the idea of sin, for what concerns the definition of the fault and the application of ecclesiastical penalties;
3. of all causes, either contentious or criminal that regard persons enjoying the privilege of the forum.” Can. 1553 § 1.

 

In sum the Church attributes to itself an exclusive competence: for what regards causes properly spiritual: for what concerns causes, even strictly temporal of certain persons, namely, those who enjoy the privilege of the forum.

 

On the first point there was no place to hesitate, except in what regards mixed questions, that is to say those where temporal interests are in play by reason of spiritual questions.

It is around these mixed questions that will deliver between legists and canonists the most rude battles. No less violent were those to which gave place the privilege of the forum. See art. For (Privilege of), t. vi, col. 527-530, and Immunities ecclesiastical, t. vii, col. 1225-1226 in the D.T.C.

 

We do not have to retrace here the elaboration of current ecclesiastical right on these diverse points.

Let us make only remark that in leaving aside the litigious questions where secular justice and ecclesiastical justice can find matter to conflict, it remains still to this last a very broad field of activity.

The diocesan officialities, at least for matrimonial causes, the Roman tribunals, for all sorts of ecclesiastical causes, remain always an organ extremely important in the life of the Church.

 

As for the competence of the various ecclesiastical tribunals it did not establish itself without difficulties either.

 

The current code fixes the competence of the various instances, episcopal tribunal, metropolitan tribunal, Roman tribunals ; after having stated that the « Roman See is judged by no one », prima Sedes a nemine judicatur, can. 1556, it recalls at the can. 1557, what are the persons and the causes, that alone the sovereign pontiff has the right to judge either in person, or by his tribunals. On none of these points the legislation, nor the jurisprudence have been made from the first blow. One will find the essential of what the theologian must know of it in the art. Major causes, t. ii, col. 2039-2042 ; false decretals, t. vi, col. 212-222 ; Bishops, t. v, col. 1714 sq., and specially in the art. Pope.

 

Canon law studies in detail the judicial organization of the Church and the general and particular rules of procedure. See the Code, l. IV, De processibus, part. I, De judiciis, and part. II, De modo procedendi, in nonnullis expediendis negotiis vel sanctionibus poenalibus applicandis.

 

2.3. Coercive Power. —

 

By this word is designated the power that every society possesses to constrain its members to the observance of the laws. It is not a question of the moral constraint that the law imposes by the very fact that it is established, but of the external sanction, of temporal or spiritual order, the fear of which can bend undecided wills, the application of which represses culpable deviations.

 

In this last sense the coercive power is essentially the right to punish or to inflict penalties. And this power flows quite naturally from the legislative power and from the judicial power. These last two would be absolutely illusory if they did not find in the other a means to make respect their decisions, both general and particular.

 

One will not make here the theory of this power which will be studied in the art. « Ecclesiastical penalties » (D.T.C.). Let it suffice to indicate that the existence of this power in the Church is the ineluctable consequence of all that has been said previously on the character of perfect society that the Christian grouping possesses, that it is also the necessary consequence of the legislative and judicial powers possessed by the Church.

 

In fact the Church has made use of this right from the first moments of its existence and, whatever it may be of the parts fallen into disuse of its penal legislation, it continues to apply today still to various categories of delinquents penalties provided by law. The last part of the Code, l. V, part. ii. « De poenis » enumerates at length the various penalties, some of exclusively spiritual order, others of temporal order, that strike the different crimes or misdemeanors.

 

VI. Source and extent of this same power

 

1° In the Church, the fullness of the power of jurisdiction resides in the pope. It is the very doctrine of the Gospel, doctrine consecrated and confirmed by the definitions of the Vatican council. It is studied in detail in the art. « Pope » in the D.T.C.

 

Denzinger N° 3060 :

 

« Thus therefore, We teach and declare that the Roman Church (the diocese of Rome, the Pope), by disposition of the Lord, possesses over all the others a primacy of ordinary power and that this power of jurisdiction of the Roman pontiff, which is truly episcopal, is immediate.

 

The pastors of all rites and of all ranks as well as the faithful, both each separately and all together, are held to the duty of hierarchical subordination and of true obedience, not only in the questions that concern faith and morals, but also in those that touch discipline and the government of the Church spread throughout the whole world ; in such a way that, keeping the unity of communion and of profession of faith with the Roman pontiff, the Church is one single flock under one single supreme pastor Jn 10,16 . Such is the doctrine of Catholic truth, from which no one can deviate without danger for faith and salvation. »

 

2° All episcopal jurisdiction, even that of the Apostles, descends from this fullness with which Christ had enriched the Prince of the Apostles and his successors. This delicate question where it is necessary to take into account at the same time both the rights of theory and the findings of practice, can only be indicated here ; see the art. Pope (D.T.C.)

 

3° However the bishops belong by divine right to the hierarchy of the Church ; they govern the portion of the flock of Christ that is entrusted to them with a power of jurisdiction proper and ordinary, and although this power can be more or less restricted by the superior authority of the pope, it is nonetheless a complete power, extending to all the parts of ecclesiastical government both in the external forum and in the internal forum.

 

The council of Trent affirms this doctrine in the most categorical manner :

 

« The holy synod declares that besides the other ecclesiastical degrees the bishops, who have succeeded in the place of the apostles, belong principally to this hierarchical order, and placed, as the same apostle says, by the Holy Spirit to rule the Church of God. »

 

Sess. xxiii, De ordine, iv ; Denz., n. 960.

 

One sees that the council relies above all on the word addressed by saint Paul to the persons charged with governing the Church of Ephesus, whatever it may be of the very titles borne by these persons. Cf. Act., xx, 17-35.

 

According to this doctrine, the bishops have the power to rule or to govern the people of God. But this power comprises, it goes without saying, all the parts of ecclesiastical government and exists not only to administer the sacraments, but also to carry laws, judge and punish.

 

Here is what saint Thomas says on this subject :

 

« The Church is the society of the faithful. Now there are two kinds of human societies : the economic or domestic groupings for example the family, the political groupings, such as the nation. Now the Church is assimilable to the political groupings. Is not the Church called a people ? As for the various convents and the various parishes of a diocese it is necessary to assimilate them either to families, or to the various organizations. And this is why the bishop alone is properly prelate of the Church, this is why he alone receives the nuptial ring of the Church, this is why he alone has full power for the dispensation of the sacraments, full jurisdiction in his forum, just as an official person, quasi persona publica. The others have these powers only insofar as he commits them to them. » In IV. Sent., dist. XX, a. 4, sol. i.

 

It is however important to remark here that these words must be understood with the limitation that necessarily implies the particularity and the subordination of episcopal power.

 

First of all are exempted from the particular jurisdiction of the bishops :

 

– all the causes that concern the order of the universal Church or that have with this order an intimate connection and that, for this reason, are called major causes. Those belong by right to the Apostolic See. The prescriptions of canon law establish it and reason itself shows that, in every well-ordered society, the affairs that interest the common good of the whole State are always devolved to the supreme power.

 

– It is the same for every matter that the sovereign pontiff rules himself or has reserved to himself. It is certain that he can subtract from the jurisdiction of the bishops certain things or certain persons that otherwise would belong to it. For although, by divine right, the bishops are the ordinary pastors of the flock that has been entrusted to them, their power however can suffer certain restrictions that do not prevent it at all from being the power to pasture the people of God.

 

Except the Roman pontiff, no bishop has, by divine right, jurisdiction over the other bishops.

 

All the degrees of patriarchal, primatial or archiepiscopal jurisdiction, are considered only as participations of the primacy of saint Peter.

 

The episcopate in effect, is nothing other than the apostolic college continued through the centuries until the end of the world.

 

Now, in the apostolic college there was no superiority established by Christ, outside of that of Peter.

 

Therefore, in the episcopal body, no bishop has over another bishop a power issued from the institution of Christ, if one excepts the superiority of the Roman pontiff, supreme head of the Church. And, in fact, the jurisdiction of the patriarchs has practically ceased in the Church. Therefore it was not of divine right, for it is impossible to see cease in the Church what is of divine institution.

 

It is the same for the other degrees existing in the episcopal order, like that of the primates and of the archbishops. All draw theoretically their origin from the authority of Peter or of his successors, whatever it may be moreover of the historical circumstances where the various superposed jurisdictions took birth.

 

Interesting thing, the theory is already formulated with some precision by the pope saint Leo in a letter to Anastasius, bishop of Thessalonica. One knows that since the beginning of the fourth century, the Holy See endeavored to make of the bishop of this city its appointed vicar for the provinces of Illyricum, that the political events tended more and more to separate from the patriarchal Roman jurisdiction. The various instructions addressed to Anastasius by saint Leo constitute a complete code of the duties and rights of the pontifical vicar. See S. Leo, Epist., v, vi, xiv. This last expresses best the theoretical reasons of these rights and duties :

 

« The liaison of all the parts of the body (of the Church) makes its health and beauty ; this liaison of the whole body requires one single soul (unanimitatem), above all it requires the concord of the bishops (sacerdotum). All, it is true, have the same dignity, but not the same rank (non est tamen ordo generalis). Already among the blessed apostles, who had similarity of honor, there was difference of power (discretio potestatis) ; all had been equally elected, one nevertheless received preeminence over the others. It is the model from which is derived the distinction of the bishops. With great wisdom it has been foreseen that all do not claim all the rights, but that, in each province, there be a bishop whose decision (sententia) prevails over that of his brothers. Finally certain bishops, in the greatest cities, received a greater share in government (sollicitudinem ampliorem), by them the cares entailed by the government of the Church would converge to the unique see of Peter, and nothing anywhere would deviate from its head (et nihil usquam a suo capite dissideret). P. L., t. liv, col. 696.

 

At the second council of Lyon, held in 1274, the Greeks subscribed to the profession of faith sent by Gregory X, where one notes the following passage :

 

« From this supreme power (that belongs to the Roman Church), flows the right for it to call other Churches to share its governmental concerns ; to many of these sees principally to the patriarchal sees, this Roman Church has conferred various privileges, but always safeguarding, both in the general councils, and in several others, its own prerogatives. » Denzinger-Bannwart, n. 466.

 

4° Outside the bishops, no one belongs to the hierarchy of jurisdiction divinely instituted in the Church.

 

There is, in effect, to belong to this hierarchy only those who govern in the Church with a proper and ordinary jurisdiction. Now the bishops are the only ones to realize this condition. If a doubt could arise for this purpose, it would be about the cardinals, the regular prelates or the curates.

 

Now the cardinals, as such, have no power distinct from that which is proper to the sovereign pontiff of whom they are the counselors and the aids in the government of the universal Church. One knows their role during the vacancy of the pontifical see and for the election of the new pope. They do not constitute an order to which belongs a proper jurisdiction, and present no title to a divine institution.

 

If one passes from the cardinals to the regular prelates, the doubt has still less consistency.

 

The power of these last is of two kinds : one is dominative and the other of jurisdiction.

 

The first belongs to the domestic or economic order ; it is the power of the master over his servant, of the father over his son.

 

The power of jurisdiction consists in the faculty to reserve cases, to constrain by excommunication and other ecclesiastical censures, and to pose certain other acts that are proper to the bishops. But it is evident that this power is in no way of divine right, for if the religious state is of divine institution and must always last in the Church, it is in no way in its essence that the power of the keys resides in the regular superiors. In other terms, the dominative power could exist in the abbots and other regular prelates without the power of jurisdiction.

 

The religious state can perfectly exist with the sole dominative power, as results from the monasteries of nuns. The nuns, in effect, have no spiritual jurisdiction ; as women they are incapable of it, at least by ecclesiastical right. See Suarez, De statu religionis, tr. VII, l. II, c. xciii, n. 8.

 

Some formerly maintained, after William of Saint-Amour, John of Pouilly and Gerson, that the curates were of divine right. Their opinion always had the favors of the Jansenists.

 

In the bull Auctorem fidei, Pius VI condemned the wanderings of the synod of Pistoia which renewed, under a new form, errors already ancient :

 

« The doctrine that claims that the reform of abuses touching ecclesiastical discipline in diocesan synod depends equally on the bishop and the curates, and must be equally assured by them, that, therefore, if the curates lack the freedom of decision, they have no need to submit to the suggestions and orders of the bishops — this doctrine is false, rash, injurious to episcopal authority, subversive of the hierarchy and favors the heresy of Aerius renewed by Calvin. » n.9.

 

« Likewise the doctrine according to which the curates and the other priests assembled in synod pronounce, with the bishop, as judges of the faith, and which insinuates that this power to judge in matter of faith belongs to these persons by proper right, by the very fact of ordination, this doctrine, is false, rash, subversive of the hierarchical order, it removes rigor from the dogmatic definitions and judgments of the Church, it is at the least erroneous. » N. 10. Denzinger-Bannwart, n. 1509, 1510.

 

The curate is a priest (or a moral person) to whom a parish has been entrusted in title with charge of souls to exercise under the authority of the ordinary of the place.

 

« Parochus est sacerdos vel persona moralis cui paroecia collata est in titulum cum cura animarum, sub Ordinarii loci auctoritate exercenda. » Cod., can. 451.

 

The parochial charge is only of ecclesiastical institution. By divine right, the bishop alone is charged to govern in a particular diocese ; all the others who participate in his administration are only his auxiliaries, auxiliaries who, considering only this unique relation, can be constituted and changed by him as he judges appropriate.

 

« The origin of the parochial office, says Sanguinetti, neither from divine right and immediate institution of Christ, nor from apostolic institution is to be sought, but only from ecclesiastical institution. For if we want to speak correctly, the unique president divinely constituted in a particular diocese is the bishop. Hence all the others, if there are any, are only his ministers ; considering this sole relation, they are constituted and removed by him as he judges. »

 

(Juris Ecclesiastici institutiones, p. 301.

 

It goes without saying that the various ecclesiastical laws have been able to bring to this point of view restrictions of different order to the powers of the bishops over the curates.

 

In the parish that has been entrusted to him, the curate has ordinary jurisdiction, but only in the internal forum ; he enjoys, in the external forum, no jurisdiction properly so called. The object of his charge, outside the administration of the sacraments, is not a public government, but simply domestic ; he does not lead his parish as a State but as a family, and he possesses, even from the ecclesiastical point of view, no legislative, judicial and coercive power.

 

The authors of canon law, and above all the recent Code, give the detail of the rights and duties of the curate, and enumerate all the functions that are reserved to him. Cod., can. 460-470 ; Sanguinetti, op. cit., p. 302-304 ; Bargilliat, Praelectiones juris canonici, t. ii, p. 16-108.

 

The pope and the bishops united to the pope therefore alone belong to the hierarchy of jurisdiction that is of divine institution in the Church.

 

All the other degrees of this hierarchy are of ecclesiastical institution. They are constituted by ecclesiastical persons or bodies, having received from the sovereign pontiffs, in the course of the centuries, jurisdictional power in view of the government of the Church. It is what the Code summarizes well in these few lines :

 

« By divine institution the sacred hierarchy by reason of Order consists of bishops, priests and ministers ; by reason of jurisdiction, of supreme pontificate and subordinate episcopate ; by the institution of the Church however other degrees have acceded. » Can. 108, § 3.

 

VII. The jurisdiction of suppliance

 

1. Definition and foundations

 

The jurisdiction of suppliance, provided by canon 209 of the “Code of 1917”, stipulates : « In case of common error or of positive and probable doubt, the Church supplies jurisdiction. » This exceptional mechanism guarantees the salvation of souls when ordinary jurisdiction is compromised, for example in time of crisis.

 

– “Theological foundation” : Saint Thomas Aquinas (“Summa theologica”, Supplement, q. 8, a. 6) maintains that the Church supplies what is lacking for the spiritual good of the faithful.

 

– “Pastoral principle” : Saint Alphonsus Liguori (“Theologia Moralis”, VI, n. 561) adds that the Church prefers to risk an irregularity than to deprive a soul of grace.

 

2. Mechanism and conditions of the jurisdiction of suppliance

 

The jurisdiction of suppliance, as codified in canon 209 of the “Code of Canon Law” of 1917, constitutes an exceptional mechanism within the Catholic Church, designed to remedy the lacks of ordinary or delegated jurisdiction in specific circumstances. This canon provides : « In case of common error or of positive and probable doubt, either of law or of fact, the Church supplies jurisdiction for the external and internal forum. » This principle, although formulated concisely, rests on a rich theological and juridical tradition aiming to guarantee the validity of sacramental acts and to preserve the salvation of souls, even in the absence of a formally constituted authority. The suppliance applies in two distinct cases : “common error” and “positive and probable doubt”. It operates in an automatic manner, according to the theological concept of “ex opere operantis Ecclesiae”, without needing an explicit intervention of ecclesiastical authority. In order to understand fully this mechanism, we will explore these conditions in depth, detailing them with explanations, concrete examples, subtle distinctions and historical and theological references.

 

2.1 Common error : a general erroneous belief

 

“Common error” designates a situation in which a whole community, or a significant portion of it, wrongly attributes jurisdiction to a cleric who, in reality, does not dispose of it. This condition does not rest on a simple individual mistake, but on a collective erroneous perception, founded on reasonable and objective appearances.

 

2.1.1 Definition and characteristics of common error

 

According to the canonist Felix Cappello, in his “Tractatus Canonico-Moralis de Sacramentis” (1930), common error is characterized by an error that affects a whole community or a substantial part of it, so that the defect of jurisdiction is not known or is ignored by the majority. It must fulfill several essential criteria :

 

– “Generality” : The error must be shared by a significant collectivity, and not by some isolated individuals. For example, a whole parish must believe that a priest is its legitimate curate for the error to be qualified as « common ».

 

– “Objectivity” : It must flow from plausible external signs, like an erroneous public nomination, an official announcement or an appearance of authority. Cardinal Alfredo Ottaviani, in his commentaries on the “Code” (1950), specifies that the error must be such that a prudent and diligent man could commit it without fault on his part.

 

– “Real ignorance” : The faithful must not know that the cleric lacks jurisdiction. If the priest acts in a way to maintain this belief (without necessarily deceiving intentionally), and that the appearances present him as legitimate, common error can be invoked.

 

2.1.2 Illustration by a concrete example

 

Let us take the hypothetical case of a priest sent to a parish following an administrative error : the bishop has not signed the official letter of nomination, but a public announcement has been made, informing the faithful of the arrival of their « new curate ». The community, strong from this announcement and the pastoral acts of the priest (celebration of mass, confessions, etc.), considers him as legitimately invested with jurisdiction. Although this priest does not possess ordinary or delegated jurisdiction, the Church supplies this authority by reason of common error. Thus, his absolutions in confession or his assistances to marriages are valid, preserving the faithful from all uncertainty on the legitimacy of the sacraments received.

 

A historical example can also enlighten this notion. Under the pontificate of Pius IX, in certain rural or isolated regions, priests have exercised their ministry without formal jurisdiction by reason of interrupted communications with their bishop or with Rome. The faithful, ignoring this defect and perceiving these priests as their legitimate pastors, have benefited from the suppliance. The canonist Wernz-Vidal, in “Ius Canonicum” (1928), notes on this subject that in these cases, the suppliance acts as a safeguard, guaranteeing the validity of the sacraments and the tranquility of consciences.

 

2.1.3 Distinction with individual error

 

It is fundamental to differentiate common error from individual error. If a faithful, by personal ignorance, believes that a priest without jurisdiction is authorized to confess, this does not suffice to activate the suppliance. Cardinal Louis Billot, in “De Ecclesia Christi” (1927), underlines that the suppliance does not apply to cases where the error is purely subjective or limited to some persons ; it requires a general erroneous perception. Thus, the error must transcend the individual to reach a community scale, making the suppliance relevant and justified.

 

2.1.4 Limits of common error

 

Common error cannot be invoked in case of bad faith or deliberate deception. If a priest knowingly usurps an authority that he knows he does not possess, and that the faithful believe him legitimate, the suppliance could theoretically apply to protect the sacraments received by innocent faithful. However, the priest himself incurs a grave fault. This nuance reflects the balance between mercy towards the faithful and rigor towards the clerics, a principle dear to Catholic theology.

 

2.2 Positive and probable doubt : a reasonable uncertainty on the authority

 

A second condition for the suppliance is the “positive and probable doubt”, which intervenes when a serious and reasonable uncertainty exists as to the jurisdiction of a cleric. This doubt can bear on law (“dubium juris”) or on facts (“dubium facti”), but it must rest on objective motives and not on a simple conjecture.

 

2.2.1 Definition and nature of positive and probable doubt

 

Felix Cappello defines positive and probable doubt as an uncertainty that rests on serious and objective reasons, so that a prudent man would hesitate to act without clarification. This doubt is distinguished by two aspects :

 

– “Positive” : It is based on real and concrete motives, and not on a total absence of information.

 

– “Probable” : There exists a reasonable likelihood that the jurisdiction is present or absent, without definitive certainty.

 

The doubt can be :

 

– “Of law” : When a canonical law is ambiguous or subject to interpretation. For example, an implicit delegation in an exceptional situation can lend to confusion.

 

– “Of fact” : When there is uncertainty on the real situation of the cleric, like a nomination not confirmed or a delegation not documented.

 

Cardinal Ottaviani explains that the doubt must be positive, that is to say supported by tangible reasons, and probable, that is to say that there must be a reasonable balance between the arguments for and against the jurisdiction.

 

2.2.2 Illustration by a concrete example

 

Let us consider a missionary priest sent to a region at war, where communications with his bishop are broken. He has not received a written delegation, but he has been verbally charged by his superior to serve a community. In this context, a positive and probable doubt of fact exists : the priest and the faithful can reasonably suppose that he has jurisdiction, without being able to verify it with certainty. The Church then supplies this jurisdiction, rendering valid his confessions or his blessings.

 

A pertinent historical example is found in the actions of military chaplains during the Second World War under Pius XII. In combat zones, these priests have often administered the sacraments without explicit delegation, by reason of chaotic circumstances. The doubt on their juridical status, founded on serious motives (oral instructions, pastoral urgency), has allowed the suppliance to validate their acts.

 

2.2.3 Distinction with negative doubt

 

Positive and probable doubt is distinguished from negative doubt, where no serious reason supports the existence of jurisdiction. For example, if a priest acts without any basis to claim an authority (neither nomination, nor presumed delegation), the suppliance does not apply. Adolphe Tanquerey, in “Synopsis Theologiae Dogmaticae” (1925), insists that the suppliance does not cover presumption or bad faith ; it is an aid in legitimate uncertainty. Thus, the doubt must be reasonable and not fanciful to justify the intervention of the Church.

 

2.2.4 Application in period of persecution

 

Periods of persecution offer a fertile ground for positive and probable doubt. For example, under the reign of Elizabeth I in England (16th century), clandestine Catholic priests have administered the sacraments without formal jurisdiction, in a context where their status was uncertain by reason of the rupture with Rome. The faithful, in ignorance or impossibility to verify their authority, have received valid sacraments thanks to the suppliance. This case illustrates how positive doubt can emerge in extreme situations, reinforcing the pastoral role of this mechanism.

 

2.3 The automatic functioning of the suppliance : “ex opere operantis Ecclesiae”

 

The jurisdiction of suppliance is unique in that it operates in an automatic manner, without needing an explicit intervention of ecclesiastical authority. It functions according to the theological principle of “ex opere operantis Ecclesiae”, that is to say by the implicit action of the Church herself, as supernatural society guided by the Holy Spirit.

 

2.3.1 Explanation of the concept

 

The term “ex opere operantis Ecclesiae” is inspired by the scholastic distinction between “ex opere operato” (efficacy of the sacraments by the act itself) and “ex opere operantis” (efficacy depending on the intention of the agent). In the case of the suppliance, it is the Church, as divine institution, that acts to fill the defect of jurisdiction as soon as the conditions of canon 209 are fulfilled. Felix Cappello explains that the Church, by virtue of its supreme power, supplies jurisdiction automatically, without the cleric or the faithful needing to solicit it. This mechanism reflects the solicitude of the Church for its members, guaranteeing that the sacraments remain accessible despite technical irregularities.

 

2.3.2 Practical implications

 

This automaticity has concrete consequences. For example, if a priest confesses a dying faithful in a crisis zone without formal jurisdiction, but by reason of a common error or a positive doubt, the absolution is valid instantly thanks to the suppliance. This case is moreover explicitly regulated in the Code of Canon Law of 1917 which specifies in canon 882 that « confession and absolution can be given to any person in danger of death, independently of his residence or belonging to a particular parish ». Cardinal Ottaviani writes that the suppliance is an act of divine mercy, operating through the Church for the good of souls. It thus avoids that the faithful be penalized by circumstances beyond their control.

 

2.3.3 Scope in the internal and external forum

 

The suppliance applies both to the “internal forum” (sphere of conscience, like confession) and to the “external forum” (public acts, like assistance to marriage). In the first case, it validates absolutions ; in the second, it legitimizes official acts. This double scope underlines the flexibility and depth of the mechanism, designed to respond to pastoral needs in varied contexts.

 

2.4 Essential distinctions and nuances

 

To grasp fully the jurisdiction of suppliance, several distinctions are necessary :

 

– “Suppliance vs ordinary jurisdiction” : Ordinary jurisdiction is attached to a permanent charge (ex. : a diocesan bishop), while suppliance is temporary and conditional.

 

– “Suppliance vs delegated jurisdiction” : Delegation comes from an explicit act of a superior authority, while suppliance is implicit and automatic.

 

– “Limits of suppliance” : It does not apply in case of proven bad faith or deliberate challenge to ecclesiastical authority. Cappello specifies that suppliance is not a personal power of the cleric ; it is an aid of the Church, limited to the cases provided by canon 209.

 

2.5 Historical examples and practical cases

 

The following examples illustrate the concrete application of suppliance :

 

1. “Clandestine priests under Elizabeth I” : These priests, acting in a context of persecution, have benefited from suppliance by reason of the common error of the faithful who considered them legitimate.

 

2. “Chaplains of the Second World War” : In war zones, priests have exercised their ministry without clear delegation, their acts being validated by positive and probable doubt.

 

3. “French Revolution” : The refractory priests, non-sworn, have continued to administer the sacraments in conditions where their authority was uncertain, the suppliance assuring the validity of their acts.

 

These cases show how suppliance has supported sacramental life in troubled periods.

 

2.6 Theological and pastoral implications

 

Suppliance embodies the principle “salus animarum suprema lex” (the salvation of souls is the supreme law). It reflects divine mercy by prioritizing access to the sacraments over juridical formalities, while preserving the unity and continuity of the Church. Saint Alphonsus Liguori (“Theologia Moralis”, VI) concludes that suppliance is an exceptional measure, witnessing to the wisdom of the Church in its salvific mission.

 

In sum, the mechanism of the jurisdiction of suppliance, with its conditions of common error and positive and probable doubt, and its automatic functioning “ex opere operantis Ecclesiae”, is a remarkable illustration of the balance between rigor and mercy in the pre-1962 Catholic tradition.

 

Three Theological Implications

 

– “Divine mercy” : Suppliance reflects the priority given to salvation over juridical rigor.

 

– “Unity of the Church” : It assures the continuity of the sacraments in period of crisis.

 

– “Limits” : It does not apply in case of bad faith or deliberate challenge to authority.

 

VIII. Conclusion

 

Jurisdiction in the Catholic Church before 1962, anchored in the Scriptures, codified by the “Code of 1917” and enriched by history, witnesses to a robust and adapted hierarchical structure. The jurisdiction of suppliance, in particular, illustrates the pastoral solicitude of the Church.

 

We devote another chapter entirely to the jurisdiction of suppliance in extraordinary times of vacancy of the See of Rome for more than 60 years. Deo gratias.

 

Sources

 

The subject falling at the same time into theology and canon law, it is fitting to consult the authors treating of these two disciplines.

 

1. Theologians : D. Palmieri, Tractatus de romano pontifice, Rome, 1891 ; Franzelin, Thèses de Ecclesia Christi, Rome, 1907 ; Billot, Tractatus de Ecclesia, Rome, 1903 ; C. Pesch, Praelectiones dogmaticae, Fribourg-en-Brisgau, t. I, 1909 ; G. Wilmers, De Christi Ecclesia, Ratisbonne, 1907.

 

D.T.C. article « jurisdiction ».

 

2. Canonists : first of all the official collections : Corpus juris canonici and Codex Juris canonici and the ancient and modern commentators. Let us note among these : D. Bouix, Tractatus de principiis juris canonici, Paris, 1862 ; Soglia, Institutiones juris publici ecclesiastici, Paris, 1879, t. i ; Vering, Droit canon., t. II, Paris, 1881 ; Tarquini, Juris ecclesiastici publici institutiones, Rome, 1890 ; S. Sanguinetti, Juris ecclesiastici institutiones, Rome, 1890 ; B. Ojetti, Synopsis rerum moralium et juris pontificii, Rome, 1899 ; Cavagnis, Institutiones juris publici ecclesiastici, Rome, 1906, t. i ; Wernz, Jus Decretalium, Rome, 1906, t. ii ; Laurentius, Institutiones juris ecclesiastici, Fribourg-en-B., 1914.