08 Jurisdiction in the Church

Jurisdiction of the Church

 

Table of contents:

1. Nature of jurisdiction

1.1. Ecclesiastical society and the power to command

1.2. Special authority for truth and grace

1.3. Triple power: order, magisterium, jurisdiction

1.4. Etymology and definition

1.5. Difference from Roman civil law; divisions into judicial and extra-judicial

2. Existence of this power in the Church

2.1. In Sacred Scripture

2.2. In Tradition

3. The divisions of ecclesiastical jurisdiction

3.1. By reason of the forum

3.1.1. Jurisdiction in the internal forum (sacramental and extra-sacramental)

3.1.2. Jurisdiction in the external forum

3.2. By reason of its extent

3.2.1. Universal jurisdiction

3.2.2. Particular jurisdiction

3.3. By reason of the title by which it is conferred

3.3.1. Ordinary jurisdiction

3.3.1.1. How is ordinary jurisdiction acquired?

3.3.1.1.1. Election

3.3.1.1.2. Postulation

3.3.1.1.3. Collation

3.3.1.1.4. Institution (and right of patronage)

3.3.1.2. How can ordinary jurisdiction be restricted?

3.3.1.2.1. Exemption

3.3.1.2.2. Reservation

3.3.1.2.3. Appeal

3.3.1.3. How is ordinary jurisdiction lost?

3.3.1.3.1. Resignation

3.3.1.3.2. Translation

3.3.1.3.3. Deprivation

3.3.2. Quasi-ordinary jurisdiction

3.3.3. Delegated jurisdiction

4. Subject of the power of jurisdiction

4.1. The clerical state

4.2. Degree in the hierarchy

4.3. Age, honesty of morals, sufficient learning

4.4. The most worthy

5. Object or matter of the power of jurisdiction in the Church

5.1. Distinction between the external forum and the internal forum

5.2. Object of jurisdiction in the external forum

5.2.1. Legislative power of the Church

5.2.2. Judicial power – History and competence

5.2.3. Coercive power

6. Source and extent of this same power

6.1. Plenitude in the pope

6.2. Episcopal jurisdiction descending from the pope

6.3. Proper power of the bishops

6.3.1. Position of the question

6.3.2. The bishops successors of the Apostles

6.3.3. The universal mission of the apostolic college

6.3.4. The primacy of Saint Peter

6.3.5. The other Apostles likewise received a true authority

6.3.6. The bishops are true pastors

6.3.7. The proper ordinary jurisdiction of the bishops

6.3.8. The theological schools concerning the origin of episcopal jurisdiction

6.3.9. The episcopal body and the universal Church

6.3.10. The episcopal body and the conservation of the Church

6.3.11. Distinction between the Apostles and the bishops

6.3.12. Conclusion

6.4. Other degrees of ecclesiastical institution

7. Supplied jurisdiction

7.1. Definition and foundations

7.2. Mechanism and conditions of supplied jurisdiction

7.2.1. Common error

7.2.1.1. Definition and characteristics

7.2.1.2. Illustration by a concrete example

7.2.1.3. Distinction from individual error

7.2.1.4. Limits

7.2.2. Positive and probable doubt

7.2.2.1. Definition and nature

7.2.2.2. Illustration by a concrete example

7.2.2.3. Distinction from negative doubt

7.2.2.4. Application in a time of persecution

7.2.3. The automatic functioning of supply

7.2.3.1. Explanation of the concept

7.2.3.2. Practical implications

7.2.3.3. Scope in the internal and external forum

7.2.4. Essential distinctions and nuances

7.2.5. Historical examples and practical cases

7.2.6. Theological and pastoral implications

7.2.7. Three theological implications

8. Conclusion

Sources:

1. Theologians
2. Canonists

 

 

1. Nature of jurisdiction

1.1. Ecclesiastical society and the power to command

The ecclesiastical society resembles in part civil society, but in part also differs from it. Like civil society, the ecclesiastical society proposes an end which its members must attain by common means; but, whereas for the first the end is purely natural, in the second the end belongs to a superior order which the forces of nature are powerless to attain and where the direct influence of a supernatural agent is required, who is none other than God.

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

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

On the other hand, a society can neither exist nor even be conceived if there is not found in it a moderator to hold the balance among individual wills, to bring back their diverse tendencies and to make them concur by their harmony in the common unity.

Hence the necessity of finding in society a power which commands the multitude, directs it and if need be constrains it, so that the social grouping may attain the end proper to it. This power to command, essential to every society, is found in the Church on the same title as in every perfect society, since she herself is a perfect society, as is demonstrated peremptorily elsewhere.

1.2. Special authority for truth and grace

Nevertheless 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, in order to attain it, she has not only to direct and regulate the social forces of her members, but also to apply principles which allow their activity to be exercised in a manner conformable and proportionate to the greatness of the goal they pursue.

These principles reduce themselves to two, which are truth and grace:

• supernatural truth given by revelation and which must be held by faith,
• grace which, raising us to participation in the divine nature, renders us apt to act in the order of our supernatural end which is eternal life.

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

“Et Verbum caro factum est et habitavit in nobis… plenum gratiae et veritatis et de plenitudine ejus nos omnes accepimus” (“And the Word was made flesh and dwelt among us… full of grace and truth, and of His fullness we have all received”);

and again: “Lex per Moysen data est, gratia et veritas per Jesum Christum facta est” (“The Law was given by Moses, grace and truth came by Jesus Christ”). John 1:14, 16, 17.

It is to ensure the dispensation of truth and grace that Christ Himself established the apostolic hierarchy: “Let a man so account of us,” says Saint Paul, “as of the ministers of Christ and the dispensers of the mysteries of God.” 1 Cor. 4:1, the mysteries of God, namely: the sacraments or sensible signs instituted for our sanctification, and the revealed dogmas which faith obliges us to believe.

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

1.3. Triple power

This power of dispensation itself is doubled according as one considers, on the one hand, the administration of holy things ordained to produce grace, and 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: “Baptizantes eos in nomine Patris et Filii, et Spiritus Sancti” (“Baptizing them in the name of the Father, and of the Son, and of the Holy Ghost”), Matt. 28:19, “Hoc facite in meam commemorationem” (“Do this in remembrance of Me”), 1 Cor. 11:25.
• The second case gives us the power of magisterium which Our Lord confers on His apostles shortly before ascending into heaven: Praedicate evangelium omni creaturae (“Preach the Gospel to every creature”) Mark 16:15; Euntes docete omnes gentes… docentes eos servare omnia quaecumque mandavi vobis. (“Go ye into the whole world and preach the Gospel to every creature… teaching them to observe all things whatsoever I have commanded you.”) Matt. 28:19, 20.

There is therefore in the Church a triple power: the power of order, the power of magisterium and the power of jurisdiction, this last being only the power of imperatively governing the acts of subjects.

1.4. Etymology and definition

“If one holds to the etymology of the word,” says Sanguinetti, “jurisdiction, from ‘jus dicere’, ‘to say the law’, signifies the power of making a law, and by law is understood everything that relates to the government or direction of another. But since a law can be made only 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.”

(“Public power concerning the direction or government of others.”)

Sebastiano Sanguineti, Iuris ecclesiastici institutiones in usum praelectionum, 4th ed., Rome, Polyglot Typography of the S. C. de Propaganda Fide, 1901, no. 287, pp. 201–202 (original Latin).

We spoke a little earlier of the power of magisterium.

This power, considered in a concrete manner, inasmuch as it is inseparably united to the power of commanding the obedience of faith, is not adequately distinguished from the power of jurisdiction, and that is why common usage recognizes only these two great divisions of ecclesiastical power, namely, the power of order and the power of jurisdiction.

Cardinal Louis Billot S.J., “De Ecclesia Christi”, Volume I, Part II, Chapter II, Question VIII, §2:

“ — Quod potestas magisterii, si spectetur in concreto prout inseparabiliter annexum habet ius imperandi subditis oboedientiam fidei, ab ipsa potestate iurisdictionis adaequate non distinguitur. Et quod hac de causa usu satis communi recepta est bimembris divisio potestatis ecclesiasticae in potestatem ordinis et potestatem iurisdictionis (pp. 335-337)”

Translated: “§ 2. — That the power of magisterium, considered concretely inasmuch as it has inseparably annexed the right of commanding subjects the obedience of faith, is not adequately distinguished from the power of jurisdiction itself. And that, for this reason, by a usage fairly commonly received, the bipartite division of ecclesiastical power into the power of order and the power of jurisdiction is admitted.”

1.5. Difference from Roman civil law

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 extensive: it includes the magisterium and comprises everything that is not of the power of order. Bouix details this object with as much exactness as care.

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

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

• This majestas manifested itself principally in the fact of making laws for the common good; in the times of the Republic this supreme right resided in the Roman people; it afterwards passed to the emperors.
• Imperium designated the power of repressing the guilty; this is also called the right of the sword, jus gladii.
• Under the name of Jurisdiction was designated the power of taking cognizance of lawsuits, of judging them, of causing sentences to be executed and of designating the judge. This power always remained with the magistrates. But since the magistrates could not have caused their judgments to be executed if they had not likewise disposed of some coercive power, a certain right of coercion was granted them, but of little importance.

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

• Finally under the name of competence (notio) was understood the power of taking cognizance of causes and of judging them, but not of causing judgments to be executed and of designating the judge. The judges invested with this power therefore corresponded, more or less, among the Romans, to what among us are arbitrators.”

“In ecclesiastical law the word jurisdiction has a different sense and extends to a greater number of objects.

One in fact refers to jurisdiction:

• the power of defining dogma and of obliging the faithful to give to the definitions a firm assent;
• the power of making laws relative to discipline and morals;
• the power of taking cognizance of ecclesiastical causes and of judging them; that of constraining the guilty by penalties such as deposition, suspension, anathema; the right of assembling councils and of presiding over them; the right of correcting inferiors, of constraining them to observe the commandments and to fulfil their functions suitably; the right of erecting benefices and of designating their titulars, of disposing of ecclesiastical goods, of alienating them, of making with regard to them every kind of contract.

Moreover some authors comprise in a quite general manner under the name of jurisdiction every ecclesiastical power that is not the power of order, that is to say the power attached, by divine institution, to the character received by ordination. In this sense jurisdiction would imply the magisterium, or power of teaching.” D. Bouix, Tractatus de principiis juris canonici, Paris, 1862, pp. 544 and 545.

By reason of the manner in which it is exercised, jurisdiction is divided into voluntary jurisdiction and contentious jurisdiction, or rather, according to Bouix, into judicial jurisdiction and extra-judicial jurisdiction. Everything that the bishop is bound to regulate with the apparatus of judgment or under the contentious form belongs to judicial or contentious jurisdiction… Everything that he has the right to enact outside the judicial apparatus belongs to extra-judicial jurisdiction designated by the canonists under the name of voluntary jurisdiction corresponding more or less to what is called, in civil law, administrative jurisdiction. Bouix, Tractatus de principiis juris canonici, Paris, Jacques Lecoffre et associés, 1852, pp. 528–529 (original Latin).

2. Existence of this power in the Church

Jesus Christ has given to His Church a jurisdiction free and independent of every human authority, both in the external forum and in the internal forum. This jurisdiction comprises, but for a higher end, the triple power which belongs to every perfect society: legislative power, judicial power and coercive power.

2.1. In Sacred Scripture

“I will give thee the keys of the kingdom of heaven,” Jesus solemnly declares to the apostle Saint Peter on a famous occasion; “whatsoever thou shalt bind upon earth, it shall be bound also in heaven: and whatsoever thou shalt loose on earth, it shall be loosed also in heaven.” Matt. 16:19.

A little later He addressed Himself in the same sense to the other apostles:

“Amen I say to you, whatsoever you shall bind upon earth, shall be bound also in heaven: and whatsoever you shall loose upon earth, shall be loosed also in heaven.” Matt. 18:18.

What can these keys of the kingdom of heaven signify? They simply signify the power of jurisdiction or the authority of command, as appears from the teaching of Holy Scripture where this metaphor is of constant use, and also from the immemorial custom which 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, Isaias 22:20-23 and the commentary of Fr. Knabenbauer ad hunc locum. In Isaiam, vol. I, p. 133.

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

This power is universal, suffers neither restriction nor limit. “Whatsoever you shall bind, whatsoever you shall loose…”

This power is, moreover, independent of every human jurisdiction: what shall have been bound on earth will be immediately and will remain bound in heaven; what shall have been loosed on earth will likewise be loosed in heaven. Between the power conferred on the apostles and the heavenly power, there is no intermediary. The second ratifies the decisions or the measures taken by the first, and it does so precisely because of their free and fully independent character.

Peter, the prince of the apostles, has been constituted the appointed 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 subject 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. It is therefore necessary that this power be fully independent.

2.2. In Tradition

This doctrine has in its favour the unanimity of the Fathers.

In two very fine pages, Tarquini sets forth, in a masterly way, this argument from 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 citations drawn from Hosius, from the sovereign pontiffs Liberius and Julius and from many others besides. Of these ecclesiastical testimonies Roskovány has made a fairly complete compilation in his Monumenta catholica pro independentia potestatis ecclesiasticae. But Cardinal Tarquini takes particular pleasure in aligning a certain number of texts borrowed from lay sovereigns, from those very ones who, inconsistently, have sometimes abused force towards the Church, such as the judgment given by the king of France Louis VII the Young on the case of his colleague Frederick Barbarossa (See Baronius, Annales, year 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, pp. 34-35.

3. The divisions of ecclesiastical jurisdiction

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

3.1. 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 square, the forum where justice was rendered and judgments pronounced; hence, by metaphor, justice itself or the tribunal, even immaterial, which renders judgments (one speaks of the intimate forum), the place where jurisdiction is exercised and jurisdiction itself.

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

3.1.2. 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 of government, which exists in the Church by divine institution, is one of the external forum and another of the internal forum or of conscience. This last power is sacramental or extra-sacramental.”) Codex Juris Canonici, can. 196.

One must use great circumspection, says Berardi, Commentaria in jus can., Turin edition, 1710, vol. I, p. 12, in defining what belongs to the internal forum and what pertains to the external forum. Thus, for example, the faculty of preaching the Gospel, of absolving from sins or from censures, which belongs to the bond uniting the faithful to Christ, is of the internal forum. But the faculty of granting the power of preaching, of absolving 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 pastors are in this case. Inversely there are those who enjoy jurisdiction in the external forum without benefiting from the other. Such would be vicars general deprived of the priestly character.

One now understands the precise sense in which the adage must be understood:

“Ecclesia non judicat de internis”

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

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

3.2.1. 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 jurisdiction universal 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.

3.2.2. Particular jurisdiction

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

When particular jurisdiction is limited to certain persons, and not to certain places, it may be exercised everywhere. Thus a regular prelate may exercise everywhere his jurisdiction over the monks subject to him, provided 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 may, outside his diocese, exercise over his own subjects his extra-judicial or voluntary jurisdiction. Codex, can. 201, § 3. But it is not the same with his judicial or contentious jurisdiction. Save certain particular cases, can. 201, § 2, 401, § 1, 881, § 2, and 1637, this latter cannot be exercised outside the territory which circumscribes its action, can. 201, § 2.

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

• Ordinary jurisdiction is that which, anteriorly to a law or a custom, is attached to an office, in such wise that he who enjoys it of proper right obtains it by reason of his very office.

Such is the jurisdiction that the common law grants for the internal forum to pastors, for both the internal and external forum to bishops, etc. Such is again the jurisdiction that the same law recognizes, but by way of privilege, to abbots and other inferior prelates.

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

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

3.3.1. Ordinary jurisdiction. —

The Code of Canon Law gives this definition: “Potestas jurisdictionis ordinaria ea est quae ipso jure adnexa est officio…”, (§1. 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 there is an express exception, one understands, under the name of Ordinary, besides the Roman pontiff, the residential bishop, the abbot or prelate nullius for their respective territories, their vicars general, the administrator of these same territories, the vicar and prefect apostolic, and likewise those who, in their default, replace them in government in virtue of a disposition of law or of approved constitutions, the major superiors with regard to their subjects in exempt clerical religious institutes.

“In jure nomine Ordinarii intelliguntur, nisi quis expresse excipiatur, praeter romanum pontificem, pro suo quisque territorio episcopus residentialis, abbas vel praelatus nullius eorumque vicarius generalis, administrator, vicarius et praefectus apostolicus, itemque ii 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 someone is expressly excepted), besides the Sovereign Pontiff, the residential bishops with their vicars general, the abbots and prelates nullius with their vicars general, apostolic administrators, vicars and prefects apostolic, each for his territory, as well as those who, in default of the aforementioned dignitaries, are designated by the prescriptions of law, or of approved constitutions, or by legitimate custom to replace them; and are also ‘Ordinary’ for exempt clerical religious orders the major superiors with regard to their subjects.”) Can. 198, § 1.

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

3.3.1.1. 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 fact, an ecclesiastical office may be obtained either from the free will of him who grants it and may dispose of it, or in conformity with a law which determines its collation.

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

In the second case, the law in question may prescribe that the office will be granted to him who shall have united the majority of the suffrages in the prescribed circumstances, and this is election.

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

Finally if it is a question of an already existing right, it is institution or the right of patronage. Sanguinetti, op. cit., 4th ed., 1901, no. 296, pp. 209–210.

3.3.1.1.1. Election is defined:

“The canonical calling of a suitable person to a vacant prelacy in a Church, or to some ecclesiastical office, election made by the suffrages of the legitimate electors and to be confirmed subsequently by the competent superior.”

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

• Either the electors scarcely assembled, and without there having been any previous negotiation, agree at once and unanimously on a name. This 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 of designating the elect. This is the procedure by compromise, a means that one may call subsidiary, in the sense that it is employed only if the regular means of the ballot is lacking.
• In the ballot one gathers, according to the mode provided for each particular case, the suffrages of all those who being electors of right have wished or been able to assemble. Sanguinetti, op. cit., 4th ed., 1901, no. 301, pp. 212–213.

3.3.1.1.2. 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, a petition addressed to the legitimate superior in order to ask him, by the fulmination of a dispensation ordinarily granted, the lifting of a canonical impediment opposing the election of their candidate. Cf. Codex, can. 179, § 1 and 2.

Postulation, to have all its force, must unite the majority of the suffrages and, at least two thirds, when it is in competition 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 of dispensing from the impediment in question; otherwise it is to the sovereign pontiff or to someone else enjoying this power. If postulation has not been sent within the prescribed delay, it becomes null by the very fact, and the electors are deprived for this time of the right of electing or of postulating, unless they establish that a serious obstacle 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 he consents to it. Can. 181, § 1, 2, 3, 4.

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

3.3.1.1.3. Collation:

This is the third of the modes used for acquiring ecclesiastical jurisdiction.

Taken in a wide sense, this word designates every concession of an ecclesiastical benefice, whether this depends entirely on the free will of him who gives the benefice, or is subject to laws; but, in its strict sense, it is limited to the first of these two acceptations. It is solely this that we must consider 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 benefice, made by him to whom this right belongs, to a suitable person.”) Sanguinetti, op. cit., 4th ed., 1901, no. 310, p. 217.

As one sees, collation comprises four elements:

• The vacancy of the benefice which is conceded;
• a legitimate power in the collator;
• the fact for him who receives the benefice of being a suitable person;
• finally, unless it is a question of the sovereign pontiff, the observation of all the laws established by ecclesiastical law in the matter.

3.3.1.1.4. Institution (and the right of patronage)

Ecclesiastical benefices and the ecclesiastical jurisdiction annexed to them may be obtained in such a manner that the collator must confer the benefice on him whom a determined person shall have presented to him in virtue of a right. This is a new mode of collation. He who has the right of making this presentation is called patron, and the right which 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 the power of naming or of presenting a suitable cleric to him to whom institution belongs, in order that he may concede to the latter a vacant benefice subject to this right.”) Sanguinetti, op. cit., 4th ed., 1901, no. 315, p. 221.

It results from this definition that if the subject presented by the patron has the qualities required by the common law as well as by the law of the foundation, he has the right of being provided with the requested office. In the contrary case, he may be refused by the superior authority. All the faithful, and even moral persons such as monasteries and chapters, may acquire the right of patronage.

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

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

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

“Laica auctoritas 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 accipiant.”

(“Lay authority has of itself the right of presenting bishops, and can require of them that they undertake the administration of dioceses before they receive canonical institution and apostolic letters from the Holy See.”)

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

In the second half of the thirteenth century, Gregory X, by a general constitution, decreed at the second council of Lyons, that no one thereafter should have the presumption of interfering, in any manner or under any title whatsoever, 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.”

(“Wishing 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 stewardship, of procuration or under any other newly invoked appearance, manage or receive, in whole or in part, directly or through the intermediary of another, spiritual or temporal affairs, nor interfere in these. We decree that all those who should act otherwise will, by that very fact, be deprived of the right (if a right had been acquired by them through the election).”)

Sext. Decret., l. I, tit. vi, c. 5.

On 28 August 1873, Pius IX, in his Constitution Romanus Pontifex declared that he extended, to those who were named and presented by sovereigns, whatever their name, what had been prescribed for those elected by 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 Second Council of Lyons concerning those elected by chapters comprise also the persons named and presented by the supreme heads 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 of naming and presenting candidates to episcopal sees vacant in their respective territories.”)

Acta Sanctae Sedis, vol. vii, p. 432.

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

1. by the superior, when the latter, by a special act and accomplished on the spot, confers on a cleric an ecclesiastical benefice;
2. in virtue of a disposition of law, when by a written law or a custom it has been regulated that the elect may, without further recourse to the superior, immediately exercise the office to which he has been called.

When institution is given by the pope, the apostolic letters must be produced and this presentation made according to rules fixed by law is rigorously necessary for entry into function.

The matter is thus regulated 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 shall remain in force in perpetuity, 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 munus of confirmation, consecration or blessing, must 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 give them attention without the presentation of the said letters. If, by chance, it were presumed to act contrary to this rule, everything that should have been accomplished in the meantime by bishops, prelates, abbots or priors shall be held as null.”

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

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

3.3.1.2. How can ordinary jurisdiction be restricted? —

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

3.3.1.2.1. Exemption

It is a privilege in virtue of which a person, a community or a place are withdrawn from the jurisdiction of an ordinary of inferior rank in order to depend immediately on a superior prelate. Whoever recognizes the various degrees of jurisdiction existing in the Church, degrees which scale harmoniously one above another, presenting a continuous character of connection and dependence, cannot deny the validity of exemptions.

Their utility, whatever may be said of always possible abuses, is especially manifest for religious orders. In fact, they protect the unity of religious families, favour in general regular discipline and preserve communities from a thousand inconveniences resulting from shocks as inevitable as painful. Cf. Bouix, Tractatus de jure regularium, vol. ii, Paris, 1857, pp. 110-120.

3.3.1.2.2. Reservation

It is an act which permanently withdraws from ordinary jurisdiction a special matter which the superior keeps for himself or attributes to another. Reservation bears on jurisdiction both in the internal forum and in the external forum.

The Council of Trent, sess. xiv, c. 7, on penance, shows the high fittingness of reservations and sets forth their salutary bearing.

“It seems to us,” it says, “that it was of sovereign importance for the good order of the Christian people, that certain crimes more particularly odious and grave should not be absolved by just anyone, but only by the highest ranks of the hierarchy (a summis duntaxat sacerdotibus).

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

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

Of this reservation they may use especially for faults to which an excommunication is annexed.” Denzinger-Bannwart, n. 903.

3.3.1.2.3. Appeal

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

One distinguishes judicial appeal and extra-judicial appeal, according as the reason which motivates it is founded or not on a judgment rendered.

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

Every appeal, made in the required conditions, produces a devolutive effect. That means that the whole cause is entrusted to the judge before whom the appeal is lodged, in such wise that, after having known the well-foundedness of the appeal, he may examine the principal cause with its accessories, and if need be, pronounce a new sentence.

Judicial appeal has, regularly, a suspensive effect; it binds the jurisdiction of the first judge, in such wise that he cannot proceed to the execution of the sentence which he has pronounced. In the contrary case of an extra-judicial appeal, there is not, regularly, a suspensive effect but only a devolutive one. Codex, l. IV, tit. xiv, c. i. De appellatione, can. 1879-1891.

3.3.1.3. How is ordinary jurisdiction lost? —

In two principal ways, according to the quality of the will which is its cause. This will may be either that of the beneficiary or that of his legitimate superior. In the first case, it is resignation; in the second, translation or deprivation.

3.3.1.3.1. Resignation

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

It is express or tacit, according as the beneficiary demits himself of his benefice into the hands of the superior, by word of mouth or in writing, or on the contrary poses a fact which, according to a presumption of law, implies resignation.

Express resignation itself is simple or conditional:

simple, when it is pure and absolute;

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

A just and legitimate cause is always required for resignation of a benefice; otherwise the superior could not accept it.

These causes are summarized 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, causing scandals, let him be able to cede.”) Cf. Decret. Greg. IX l. I, tit. ix, c. 10.

Resignation or demission must be accepted by the legitimate superior.

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

One must except the sovereign pontiff who, having no superior on earth, may freely demit himself.

“Romanus Pontifex potest libere papatui renunciare.” (“The Roman Pontiff may freely resign the pontificate.”) Sext. Decret., l. I, t. vii, c. 1.

As results from the definition itself, this resignation must be voluntary and free. Once the demission is accepted, the beneficiary loses every right over his benefice and finds himself, at the same time, released from every obligation concerning it.

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

Translation cannot evidently 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.

3.3.1.3.3. Deprivation

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

This act is extra-judicial or judicial.

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

the second, by the destitution of irremovable offices, that is to say, conceded in perpetuity.

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

See Saint Thomas: IIaIIae, Q.39, a3 (corpus)

“There are two spiritual powers: sacramental power, and jurisdictional power. Sacramental power is that which is conferred by a consecration. All the consecrations of the Church are immutable, so 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. That is why such a power, according to its essence, remains in him who has received it by consecration as long as he remains alive, even should he go astray into schism or heresy. This is clear from the fact that he is not consecrated anew if he returns to the Church. But, because an inferior power must pass to act only under the motion of a superior power, as one sees even in the things of nature, it results that these men lose the use of their power and that it is no longer permitted them to use it. If they use it nevertheless, their power obtains its effect in the sacramental domain, for in this the man acts only as instrument of God; therefore sacramental effects are not annulled by just any fault in him who confers the sacrament. As to the power of jurisdiction, it is conferred by simple human investiture. This power does not remain immutable. And it does not subsist in schismatics and heretics. That is why they can neither absolve, nor excommunicate, nor give indulgences, nor do anything of this kind; if they do it, nothing is produced.”

3.3.2. Quasi-ordinary jurisdiction. —

One distinguishes from ordinary jurisdiction quasi-ordinary, or vicarious, jurisdiction, 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.”

“Ordinary power (of jurisdiction) may be either proper or vicarious.” Can. 197, § 2.

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

3.3.3. Delegated jurisdiction. —

Delegated jurisdiction is that which one possesses not of proper right, that is to say, by reason of an office or a dignity, but in 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 has not of his own right, that is to say not by reason of his charge or his dignity, but solely by the commission of another in whose place he acts as vicar.”)

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

The code defines it still more briefly: “Potestas delegata ea est quae commissa est personae.” Can. 197, § 1.

Whoever has ordinary jurisdiction may therefore subdelegate it in whole or in part, unless there is a contrary disposition of law. Can. 199, § 1.

But can a delegated jurisdiction in its turn be subdelegated?

Here are the precise answers of the Code.

The delegate of the pope generally has the right of subdelegating, 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 ordinary power below the pope, may be subdelegated in each particular case. Ibid., § 3.

In the other cases, the delegated power of jurisdiction may be subdelegated only in virtue of a concession expressly made.

However delegated judges may subdelegate, without a formal commission, a non-jurisdictional article. In other words, delegation is generally admissible when the delegation does not relate properly to a jurisdictional act. Ibid., § 4.

Unless there is an express concession, no subdelegated power can again be subdelegated. §5.

As to 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 a question of a delegation ad universalitatem casuum. Can. 200, § 1; for the burden of proof, § 2. It is for the delegate to furnish the proof of his delegation.

The jurisdictional power of a delegate begins only when he has his full powers in his hands; before that, all the acts of jurisdiction which he accomplishes are struck with nullity, as well as those which he pursues besides exceeding his powers.

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

One may also establish simultaneously several delegates for one and the same affair.

Then several hypotheses are to be envisaged:

• If each has received commission for the whole affair, it is for him who has begun it to decide it, unless he is afterwards prevented or no longer wishes to continue it.
• If each has not received this commission, no delegate must act without the other, unless there is a contrary disposition expressed in the mandate.

In doubt, one must presume the first case when it is a question of an extra-judicial affair, and the second case when it is a question of a judicial affair. When several have been successively delegated for the same affair, this must be treated by him who has received a mandate anterior to the others, a mandate which no subsequent rescript has come to abrogate. Can. 205, § 1, 2 and 3; can. 206 for successive delegates.

From the decision of the delegate one may appeal to the mandator; but when a delegate of the pope has subdelegated his whole commission to another, the appeal must be addressed directly to the pope.

A delegation is extinguished by the accomplishment of the mandate, by the lapse of the time fixed or the exhaustion of the cases limiting the mandate, by the cessation of the purpose of the delegation, by the revocation of the mandator, revocation intimated directly to the delegate, or by the resignation of the latter, resignation signified to the mandator and accepted by him.

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

4. Subject of the power of jurisdiction

Several conditions are required in the subject of ecclesiastical jurisdiction.

4.1. The first is the clerical state,

For the laity have received no power of disposing of the things of the Church; they have the duty of obeying, not the authority of commanding.

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

(“Since the laity, even religious, have received no power of disposing of the affairs of the Church, there remains to them the necessity of obeying, and not the authority of commanding.”)

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

Hence this formal order intimated to the laity not to meddle in ecclesiastical things: “Decernimus ut laici ecclesiastica tractare negotia non praesumant.” Ibid., l. II, tit. i, c. 2.

As to woman, she is not susceptible, at least of ecclesiastical law, of receiving jurisdiction in the Church. This is the common sentiment of theologians and canonists. Cf. Bouix, Tractatus de jure regularium, vol. 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 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 the Ethics, chapter seven, and the first book of the Politics, last chapter, there is corruption of civility when dominion falls to a woman: thus woman has neither the key of order nor the key of jurisdiction. But there is committed to a woman a certain use of the keys, such as having the power of correcting the women subject to her, by reason of the danger that could arise if men cohabited with women.”

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

4.2. The second condition is the degree of the hierarchy of order required by the dignity or the office to be obtained.

Pope Gregory X, at the second general council of Lyons, in 1274, established that every cleric called to govern a Church must, in the very year, receive the order of the priesthood. If he did not do so, he was of right and without other monition deprived of his charge. Sext. Decret., l. I, tit. vi, c. 14. The Council of Trent is still more precise on this point:

“Neminem etiam deinceps ad dignitatem, canonicatum, aut portionem recipiant, nisi qui eo ordine sacro sit initiatus quem illa dignitas, praebenda aut portio requirit.”

(“That henceforth no one be received to a dignity, a canonry or a portion, unless he has been initiated to the sacred order required by that dignity, prebend or portion.”)

Sess. xxiv, de Reform., c. xii.

4.3. Age, honesty of morals and competent learning are enumerated among the conditions of rigour for obtaining ecclesiastical jurisdiction.

• Age and honesty

The same Gregory X, at the second council of Lyons, issues the following decree, which fixes at twenty-five years the lower age limit for benefices with care 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 government of a parochial church unless he is suitable by his morals, his learning and his age; we decree that collations of parochial churches made henceforth to those who have not attained the twenty-fifth year are entirely devoid of validity.”)

Sext. Decret., 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 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.

• Learning

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

Eminent learning makes one resolve immediately all the difficulties that may present themselves in the complicated exercise of a charge. By competent, but sufficient, learning, one is able to reply correctly to ordinary difficulties; as to those that are especially arduous, one is led to doubt wisely and to consult.

But this learning asks to be proved, and to accede to certain high functions of the ecclesiastical hierarchy, one must, says the Council of Trent, produce the titles of doctor or of licentiate in theology or in canon law.

The public testimony of some academy attesting the capacity of teaching may supply for it. It is a question in the text of those who may 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 learning be such that he can satisfy the necessity of the charge entrusted to him; and for this reason, that he have previously been promoted, with just title, to the title of master, doctor or licentiate in sacred theology or in canon law in a university of studies, or that he be recognized, by the public testimony of an academy, as apt to teach others.”)

Sess. xxii, de Reform., c. ii.

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

The same conditions of learning are asked of the vicar general. Can. 367, § 1. Canons 1598, § 2, 1589, § 1, 2017, 2018, 399, § 1, 1366, § 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.

4.4. The most worthy

All these qualities united are required in the subject of ecclesiastical jurisdiction and render him worthy of the office to which he is called; but several may unite these same qualities, and then to whom must preference be given? To the most worthy.

This is the formal teaching of the Council of Trent. One feels a true emotion piercing in the text where it begs all those who, in one manner or another, have a 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 general 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.”

(“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 reason of prayers, of human affection or of suggestions of solicitors, but by reason of their required merits.”)

Sess. xxiv, de Reform., c. i.

Pope Innocent XI condemned the following proposition: “When the Council of Trent declares that those ‘participate in the sins of others and sin mortally who do not raise to the honours of the Church those whom they esteem the most worthy and the most useful to the Church’ the council, by these words: ‘the most worthy’ means simply ‘those who are worthy’ taking the comparative for the positive, or else by a slightly improper manner of speaking it has put ‘the most worthy’ to exclude the unworthy but not those who are simply worthy; or else finally it speaks only of cases where there is a competition.” Prop. 47; Denz.-Bannw., n. 1197.

This greater dignity is not measured by superiority in doctrine, honesty of life or nobility of birth, but by the superiority of all the qualities of soul and body, joined to a special aptitude to govern, in such wise 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 here evidently matter for many personal appreciations. Saint Thomas, specifying still more, says, presenting a typical example, that the best bishop to choose is he who appears the most apt to govern such a Church. “The ecclesiastical ministry is not entrusted to men to assure them the remuneration of the age to come. And therefore he who must choose someone as bishop is not bound to choose him who is, absolutely speaking, the best according to the order of sanctifying grace but him who is the best for the government of the Church, capable of instructing it, of defending it, of governing it peacefully.” Sum. theol., IIa IIae, q. clxxxv, a. 3.

5. Object or matter of the power of jurisdiction in the Church

5.1. Distinction between the external forum and the internal forum.

Cardinal Louis Billot S.J. teaches in his famous treatise on the Church:

“Thesis XXI. — In tota amplitudine potestatis clavium a Christo institutae duplex distinguitur iurisdictionis modus, pro quanto alia iurisdictio est habens esse completum in Ecclesia, eique competens tanquam causae principali; alia vero est in ea existens tantum ut in Dei instrumento. — Prior est primo ac principaliter ad ligandum ligamine legis, et quamvis se extendat ad omnem materiam cuius obligatio conducit ad finem regni coelorum, directe tamen ac per se circa solos actus externos versatur. Posterior est principaliter ad solvendum. Non autem ad solvendum instituta aut leges divinas sive naturales sive positivas, sed solum ad solvendum particulares personas a vinculis adhuc connaturaliter solubilibus quae per suos proprios actus in foro Dei contraxerunt.”

Translated: “Thesis XXI. — In the whole amplitude of the power of the keys instituted by Christ, a double mode of jurisdiction is distinguished: one is a jurisdiction which possesses its complete being in the Church and belongs to her as to its principal cause; the other exists in her only as in an instrument of God. The first is first and principally ordained to bind by the bond of law, and although it extends to every matter whose obligation leads to the end of the kingdom of heaven, it bears however directly and of itself only on external acts. The second is principally ordained to loose. Not to loose divine institutions or laws, whether natural or positive, but only to loose particular persons from bonds still soluble by their nature, which they have contracted by their own acts in the forum of God.”

Louis Billot, Tractatus de Ecclesia Christi, vol. I, 3rd ed., Prato, Giachetti, sons and Co., 1909, analytical table, p. 712, thesis XXI; development: part II, chap. II, question XI, pp. 456–466 (original Latin).

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

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

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

The Church has jurisdiction both in the external forum and in the internal forum, but in a different manner.

In the first case, she acts as principal cause and her role consists especially in binding; in the second case, it is as instrumental cause, and then her principal mission is to loose. She has the power of binding all that can be bound on earth in order to attain the end of the kingdom of heaven, and that within the limits assigned, in every order, to a human legislator. Billot, op. cit., ibidem §1 and 2. This is the sense of the celebrated word of Our Lord to Saint Peter: “I will give thee the keys of the kingdom of heaven, and whatsoever thou shalt bind upon earth shall be bound also in heaven.” Matt. 16:19.

Her power of loosing is exercised not evidently on divine laws from which no human authority could exempt, but solely on the bonds contracted by individuals by reason of the divine law. Obligations are assumed because of submission to the law, or faults are committed by the violation of this same law; it is a double bond which chains the individual, without it being possible for him to disengage himself by himself. The Church, acting as instrument of God, comes to deliver him from it, and this is the principal object of her power of ministerial jurisdiction. Billot, op. cit., ibidem §3.

5.2. Object of jurisdiction in the external forum. —

This jurisdiction presents itself under a triple aspect. The titular of jurisdiction in the common interest of the grouping entrusted to him makes laws; of these laws he watches over the execution, he is therefore led to judge either the litigious cases raised by the application of the laws, or the individuals who have contravened the regulations issued; these judgments he must cause to be executed. Thus jurisdiction ramifies into a triple power: legislative, judicial, coercive. We shall consider it here as being the general power of the Church, whatever may be the persons in whom this power resides.

5.2.1. Legislative power of the Church. —

It has for object both things concerning faith and morals, and questions of discipline. But in things of faith and morals, the obligation of ecclesiastical law comes to join itself to the obligation of divine law; in matter of discipline, the whole obligation is of ecclesiastical law.

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

The latter, in fact, by reason of a special assistance of God, can never establish or approve a discipline that would be radically opposed to the rules of faith and of the holiness of the Gospel. The question of legislative power is treated in detail in the art. Church vol. iv, col. 2200 sq. of the D.T.C.

5.2.2. Judicial power. —

The existence of such a power could be contested only by those who deny to the Church the character of a perfect society; this right is the natural consequence of legislative power. From the moment a society is invested with the right of making laws, it is by that very fact obliged to judge.

A first form of judgment is that which one may call the repressive or penal form. As soon as a law issued by the superior authority is transgressed, there is reason to punish or to repress the author of the transgression. Summary or complicated, expeditive or prolonged, a procedure is necessary, which first shows the culpability of the accused, then applies to him the suitable sentence.

A second form of judgment is that which one may call contentious. By their nature laws are general, they cannot aim at the complexity of particular cases; a declaration of the social authority is necessary to show what law, or what combination of legislative texts, must play in a determined case. Laws are multiple, they may find themselves, at a determined moment, in apparent conflict; there is reason to cut the difference which thus seems to arise. 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 would the Church, a perfect society, not have thought from the beginning of her existence of organizing, in her bosom, a judicial administration?

History

In fact from the first years of her existence, one sees her render not only doctrinal judgments, but true judicial sentences. The case of Saint Paul, condemning at a distance the incestuous man of Corinth is the first type of a penal judgment, 1 Cor. 5:1-5; the prescription which he makes to the neophytes of submitting their differences to the arbitration of their brethren and, no doubt, to that of the leaders of the community furnishes us a type of contentious jurisdiction, 1 Cor. 6:1-8. The history of councils would offer an incalculable number of examples of ecclesiastical judgments; cases of species, questions of culpability of such or such a person, differences between prelates, between ecclesiastical authorities and lay powers who believe themselves, rightly or wrongly, injured by the former, even contests between laymen on points which touch nearly or remotely 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 as and more than legislative assemblies.

We have not to make here the history of judicial institutions in the Church: this history pertains to canon law. Let it suffice to indicate that early on the episcopal tribunal was found constituted, functioning in each diocese, according to more or less clearly defined rules.

The superior instance was longer in disengaging itself and it is here especially that provincial or regional councils played the role of court of appeal. The supreme instance functions from the very first times; it is from the very origins that one sees brought to the tribunal of the successors of Saint Peter the multiple differences that arise in the various Churches. The innumerable Roman synods, where the popes assemble with the clergy of Rome, a more or less imposing number of Italian bishops (suburbicarian in the ancient sense of the word) constitute the supreme instance. One may say that the system already functions in the fourth century, at the peace of the Church, without wishing thereby to exclude 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 in clarifying itself. It subdivides itself into two others.

What first are the matters that pertain to the ecclesiastical forum?

What are the attributions of the various superimposed tribunals?

On the first point the present Code of law is very precise: “The Church,” it says, “takes cognizance of a proper and exclusive right:

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

In sum the Church attributes to herself an exclusive competence: for what regards properly spiritual causes: 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 reason to hesitate, except as regards mixed questions, that is to say those where temporal interests are at stake by reason of spiritual questions.

It is around these mixed questions that the hardest battles will be fought between legists and canonists. No less violent were those to which the privilege of the forum gave rise. See art. Forum (Privilege of), vol. vi, col. 527-530, and Ecclesiastical immunities, vol. vii, col. 1225-1226 in the D.T.C.

We have not to retrace here the elaboration of present ecclesiastical law on these various points. Let us only remark that leaving aside the litigious questions where secular justice and ecclesiastical justice may find matter for conflict, there remains still to the latter a very large field of activity.

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

As to the competence of the various ecclesiastical tribunals it has not fixed itself either without difficulties.

The present code fixes the competence of the various instances, episcopal tribunal, metropolitan tribunal, Roman tribunals; after having specified that the “Roman See is judged by no one”, prima Sedes a nemine judicatur, can. 1556, it recalls in can. 1557, what are the persons and the causes, that the sovereign pontiff alone has the right of judging either in person, or by his tribunals. On none of these points have legislation or jurisprudence been made at the first stroke. One will find the essential of what the theologian must know of it in the art. Major causes, vol. ii, col. 2039-2042; decretals (False), vol. vi, col. 212-222; Bishops, vol. v, col. 1714 sq., and especially 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. III, De modo procedendi, in nonnullis expediendis negotiis vel sanctionibus poenalibus applicandis.

5.2.3. Coercive power. —

One designates by this word the power that every society possesses of constraining its members to the observation of the laws. It is not a question of the moral constraint which the law imposes by the very fact that it is established, but of the exterior sanction, of temporal or spiritual order, whose fear may bend undecided wills, whose application represses culpable deviations.

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

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 which 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 her existence and, whatever may be the parts fallen into desuetude of her penal legislation, she 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, which strike the different crimes or delicts.

6. Source and extent of this same power

6.1. In the Church, the fullness of the power of jurisdiction resides in the pope. This 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 No. 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 bound to the duty of hierarchical subordination and of true obedience, not only in the questions which concern faith and morals, but also in those which touch discipline and the government of the Church spread throughout the whole world; in such wise that, keeping the unity of communion and of profession of faith with the Roman pontiff, the Church is one flock under one supreme pastor Jn 10:16. Such is the doctrine of Catholic truth, from which no one can depart without danger for the faith and for salvation.”

6.2. 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 one must take account at once both of the rights of theory and of the findings of practice, can only be indicated here; see the art. Pope (D.T.C.)

6.3. Proper power of the bishops

6.3.1. Position of the question

After having established that the Roman Pontiff possesses in the Church the fullness of jurisdiction and that all ecclesiastical jurisdiction remains ultimately subordinate to his supreme authority, it is fitting to examine the nature of the proper power of the bishops.

This question has given rise to various theological controversies. However, Catholic authors agree unanimously on several fundamental principles: the bishops are true successors of the Apostles; they possess a true pastoral power; they are not simple delegates of the Roman Pontiff; finally, their authority must always remain united and subordinate to that of the successor of Saint Peter.

6.3.2. The bishops successors of the Apostles

Catholic doctrine teaches that the bishops succeed the Apostles in the government of the Church.

The Vatican Council declares:

“Episcopi, qui positi a Spiritu Sancto in Apostolorum locum successerunt.”

“The bishops, established by the Holy Ghost, have succeeded in the place of the Apostles.”

Concilium Vaticanum I, Constitutio Pastor Aeternus, cap. III; Acta et Decreta Sacrosancti Oecumenici Concilii Vaticani, Rome, Typographia Polyglotta Vaticana, 1872.

This succession concerns not only the transmission of the sacrament of Order, but also the pastoral and governmental charge of the Church.

Thus Leo XIII teaches:

“Episcopi … in locum Apostolorum successerunt.”

Leo XIII, Encyclical Satis Cognitum, 29 June 1896; Acta Sanctae Sedis, vol. XXVIII, Rome, 1895-1896.

6.3.3. The universal mission of the apostolic college

Our Lord conferred directly on the apostolic college a universal mission:

“Euntes ergo docete omnes gentes.”

“Going therefore teach ye all nations.”

Matt. 28:19.

And again:

“Sicut misit me Pater, et ego mitto vos.”

“As the Father hath sent me, I also send you.”

John 20:21.

This mission was entrusted to the ensemble of the Apostles.

The Apostles therefore received from Christ Himself a true mission concerning the whole Church.

They were established as visible foundation of the nascent Church:

“Superaedificati super fundamentum Apostolorum.”

“Built upon the foundation of the Apostles.”

Eph. 2:20.

6.3.4. The primacy of Saint Peter

However, among the Apostles, Saint Peter received a particular authority.

To him alone were addressed the words:

“Tibi dabo claves regni caelorum.”

Matt. 16:19.

“Ego rogavi pro te ut non deficiat fides tua ; et tu aliquando conversus confirma fratres tuos.”

Luke 22:32.

“Pasce agnos meos ; pasce oves meas.”

John 21:15-17.

These texts constitute the scriptural foundation of the pontifical primacy.

The Vatican Council defines:

“Si quis dixerit Romanum Pontificem non habere plenam et supremam potestatem jurisdictionis in universam Ecclesiam … anathema sit.”

Pastor Aeternus, cap. III; Denzinger-Bannwart, n. 1831; numbering Denzinger-Schönmetzer, no. 3064.

The Roman Pontiff therefore possesses alone the fullness of universal ordinary jurisdiction.

6.3.5. The other Apostles likewise received a true authority

The primacy of Peter does not mean that the other Apostles were simple delegates.

Saint Thomas teaches that the other Apostles also received a true power from Christ.

Commentarium in Matthaeum, cap. XVI, lect. 3.

Bellarmine likewise underlines that the Apostles were true pastors instituted immediately by Christ.

Robertus Bellarminus, De Romano Pontifice, lib. IV.

Thus, if Peter received the primacy, the other Apostles nevertheless received a true apostolic jurisdiction.

6.3.6. The bishops are true pastors

Because they succeed the Apostles, the bishops are true pastors of the Church.

They are neither simple administrative representatives nor simple mandatories revocable at will.

Their charge belongs to the divine constitution of the Church.

Bellarmine teaches:

“Episcopi sunt veri pastores Ecclesiae.”

Robertus Bellarminus, De Romano Pontifice, lib. IV, cap. XXIV.

The Council of Trent likewise teaches that the bishops are established by the Holy Ghost to govern the Church.

Concilium Tridentinum, Sessio XXIII.

6.3.7. The proper ordinary jurisdiction of the bishops

The Code of Canon Law clearly distinguishes ordinary jurisdiction from delegated jurisdiction:

“Potestas jurisdictionis ordinaria ea est quae ipso jure adnexa est officio.”

Codex Juris Canonici, 1917, can. 197 §1.

Now the jurisdiction of the diocesan bishop is an ordinary jurisdiction.

The bishop therefore governs his diocese not as a simple occasional delegate, but in virtue of a stable office recognized by the Church.

This jurisdiction is proper, ordinary and immediate in his diocese, although it remains subordinate to the supreme jurisdiction of the Roman Pontiff.

6.3.8. The theological schools concerning the origin of episcopal jurisdiction

Theologians have discussed the precise mode according to which bishops receive their jurisdiction.

A first school, represented notably by Palmieri, Billot and Wernz, teaches that episcopal jurisdiction derives from the Roman Pontiff as from its proximate principle.

A second school, represented notably by Bellarmine, Suarez and John of Saint Thomas, insists more on the immediate divine institution of the episcopate.

The divergence bears solely on the precise mode of communication of jurisdiction.

All admit:

• the primacy of the Roman Pontiff;
• the necessity of the canonical mission;
• the existence of a true episcopal power;
• the subordination of this power to the Apostolic See.

6.3.9. The episcopal body and the universal Church

One must carefully distinguish each bishop considered individually from the episcopal body considered collectively.

Each bishop exercises an ordinary jurisdiction over his particular Church.

However the bishops, considered collectively as moral successors of the apostolic college, conserve a particular relation with the universal Church.

This doctrine flows from the universal mission formerly entrusted to the apostolic college.

It explains why the Church is never reduced to a simple sum of isolated dioceses.

6.3.10. The episcopal body and the conservation of the Church

Several classical theologians teach that the Church possesses the right and the duty of providing for her own conservation.

Cajetan, John of Saint Thomas, Billuart and others apply this principle to extraordinary circumstances affecting the supreme government of the Church.

They thus found the possibility of certain exceptional acts destined to assure the perpetuity of the Church.

However none of these authors teaches that the episcopal body habitually possesses a universal ordinary jurisdiction equal or parallel to that of the Roman Pontiff.

6.3.11. Distinction between the Apostles and the bishops

The Apostles received personally from Christ an extraordinary universal mission.

The bishops succeed them truly in the episcopate and in the government of the Church.

However they do not receive the extraordinary privileges attached to the apostolate.

Universal ordinary jurisdiction remains proper to the Roman Pontiff.

The bishops for their part exercise an ordinary particular jurisdiction over the Churches canonically entrusted to them.

6.3.12. Conclusion

Catholic doctrine maintains simultaneously four fundamental truths.

First, the Roman Pontiff possesses alone the fullness of universal jurisdiction.

Second, the bishops are the true successors of the Apostles.

Third, the bishops possess a proper ordinary jurisdiction and are not simple delegates of the Roman Pontiff.

Fourth, the episcopal body, moral successor of the apostolic college, conserves certain rights and duties relative to the conservation and perpetuity of the universal Church.

Thus are safeguarded at once the divine monarchy of the Church founded on Peter and his successors, and the true apostolic constitution of the episcopate willed by Our Lord Jesus Christ.

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

There belong in fact 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 to this effect, it would be concerning cardinals, regular prelates or pastors.

Now cardinals, as such, have no power distinct from that which is proper to the sovereign pontiff of whom they are the counsellors and the aides 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 a proper jurisdiction belongs, and present no title to a divine institution.

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

The power of these last is of two sorts: 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 of reserving cases, of constraining by excommunication and other ecclesiastical censures, and of posing certain other acts which are proper to 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 reside in regular superiors. In other words, dominative power could exist in abbots and other regular prelates without the power of jurisdiction.

The religious state can perfectly exist with only dominative power, as results from monasteries of nuns. Nuns, in fact, have no spiritual jurisdiction; as women they are incapable of it, at least of ecclesiastical law. 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 pastors were of divine right. Their opinion always had the favours of the Jansenists.

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

“The doctrine which pretends that the reform of abuses touching ecclesiastical discipline in diocesan synod depends equally on the bishop and the pastors, and must be equally assured by them, that, therefore, if the pastors lack freedom of decision, they have no need of submitting to the suggestions and orders of the bishops — this doctrine is false, rash, injures episcopal authority, is subversive of the hierarchy and favours the heresy of Aerius renewed by Calvin.” n.9.

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

The pastor is a priest (or a moral person) to whom a parish has been entrusted in title with care of souls to be exercised 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. Of divine right, the bishop alone is charged with governing in a particular diocese; all the others who participate in his administration are only his auxiliaries, auxiliaries who, considering only this unique relation, may be constituted and changed by him according as he judges it opportune.

“Muneris parochialis origo, says Sanguinetti, neque ex jure divino et immediata Christi institutione, neque ex institutione apostolica est repetenda, sed duntaxat ex ecclesiastica institutione. Si enim recte loqui velimus, unicus in dioecesi particulari divinitus constitutus praeses est episcopus. Hinc reliqui omnes, si qui sint, nonnisi ejus sunt administri ; qui spectata hac solum relatione, ab eo prout judicat constituuntur et amoventur.”

(“The origin of the parochial charge, according to Sanguinetti, is not to be sought either in divine right and the immediate institution of Christ, or in apostolic institution, but solely in ecclesiastical institution. For, if we wish to speak correctly, the only president divinely constituted in a particular diocese is the bishop. Thus, all the others, if there are any, are only his ministers; considering this sole relation, they are constituted and removed by him according to his judgment.”) (Iuris ecclesiastici institutiones, 4th ed., Rome, 1901, no. 352, p. 284, original Latin).

It goes without saying that the various ecclesiastical laws may have brought to this point of view restrictions of different order to the powers of bishops over pastors.

In the parish entrusted to him, the pastor 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 a domestic one; 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 especially the recent Code, give the detail of the rights and duties of the pastor, and enumerate all the functions reserved to him. Cod., can. 460-470; Sanguineti, op. cit., 4th ed., 1901, no. 352, pp. 285–286; Bargilliat, Praelectiones juris canonici, vol. ii, pp. 16-108.

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

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

“Ex divina institutione sacra hierarchia ratione Ordinis constat episcopis, presbyteris et ministris ; ratione jurisdictionis, pontificatu supremo et episcopatu subordinato ; ex Ecclesiae autem institutione alii quoque gradus accessere.” Can. 108, § 3.

7. Supplied jurisdiction

7.1. Definition and foundations

Supplied jurisdiction, 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 rather than deprive a soul of grace.

7.2. Mechanism and conditions of supplied jurisdiction

Supplied jurisdiction, as codified in canon 209 of the “Code of Canon Law” of 1917, constitutes an exceptional mechanism within the Catholic Church, conceived to palliate the lacunae of ordinary or delegated jurisdiction in specific circumstances. This canon disposes: “In case of common error or of positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for the external and internal forum.” This principle, although formulated in a concise manner, 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. Supply 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 necessitating an explicit intervention of ecclesiastical authority. In order to understand this mechanism fully, we shall explore these conditions in depth, detailing them with explanations, concrete examples, subtle distinctions and historical and theological references.

7.2.1. Common error: a general erroneous belief

“Common error” designates a situation in which an entire community, or a significant portion of it, wrongly attributes a 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.

7.2.1.1 Definition and characteristics of common error

According to the canonist Félix Cappello, in his Tractatus Canonico-Moralis de Sacramentis (vol. I, 6th ed., Turin–Rome, Marietti, 1953, no. 31, pp. 30–32), common error is characterized by an error which affects an entire community or a substantial part of it, so that the defect of jurisdiction is not known or is ignored by the majority. It must fulfil several essential criteria:

• Generality: The error must be shared by a significant collectivity, and not by a few isolated individuals. For example, an entire parish must believe that a priest is its legitimate pastor for the error to be qualified as “common”.
• Objectivity: It must flow from plausible exterior signs, such as 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 such a way as to maintain this belief (without necessarily deceiving intentionally), and if appearances present him as legitimate, common error may be invoked.

7.2.1.2 Illustration by a concrete example

Let us take the hypothetical case of a priest sent into 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 pastor”. The community, strong with 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 at marriages are valid, preserving the faithful from all uncertainty on the legitimacy of the sacraments received.

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

7.2.1.3 Distinction from 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 hear confessions, that does not suffice to activate supply. Cardinal Louis Billot, in De Ecclesia Christi (1927 edition, therefore after the code of 1917, which regulates supply in canon 209), underlines that supply does not apply to cases where the error is purely subjective or limited to a few persons; it requires a general erroneous perception. Thus, the error must transcend the individual in order to reach a communal scale, rendering supply pertinent and justified.

7.2.1.4 Limits of common error

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

7.2.2. Positive and probable doubt: a reasonable uncertainty on authority

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

7.2.2.1 Definition and nature of positive and probable doubt

Félix Cappello defines positive and probable doubt as an uncertainty which 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 jurisdiction is present or absent, without definitive certainty.

The doubt may be:

• Of law: When a canonical law is ambiguous or subject to interpretation. For example, an implicit delegation in an exceptional situation may lend itself to confusion.
• Of fact: When there is an uncertainty on the real situation of the cleric, such as an unconfirmed nomination or an undocumented delegation.

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 jurisdiction.

7.2.2.2 Illustration by a concrete example

Let us consider a missionary priest sent into 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 with serving a community. In this context, a positive and probable doubt of fact exists: the priest and the faithful may 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 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), allowed supply to validate their acts.

7.2.2.3 Distinction from 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 for claiming an authority (neither nomination, nor presumed delegation), supply does not apply. Adolphe Tanquerey, in Synopsis Theologiae Dogmaticae (1925), insists that supply does not cover presumption or bad faith; it is a help in legitimate uncertainty. Thus, the doubt must be reasonable and not fanciful in order to justify the intervention of the Church.

7.2.2.4 Application in a time 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 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 of verifying their authority, received valid sacraments thanks to supply. This case illustrates how positive doubt can emerge in extreme situations, reinforcing the pastoral role of this mechanism.

7.2.3 The automatic functioning of supply: “ex opere operantis Ecclesiae”

Supplied jurisdiction is unique in that it operates in an automatic manner, without necessitating 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 a supernatural society guided by the Holy Ghost.

7.2.3.1 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 supply, it is the Church, as divine institution, who acts to fill the defect of jurisdiction as soon as the conditions of canon 209 are united. Félix Cappello explains that the Church, in virtue of her supreme power, supplies jurisdiction automatically, without the cleric or the faithful having need to solicit it. This mechanism reflects the solicitude of the Church for her members, guaranteeing that the sacraments remain accessible despite technical irregularities.

7.2.3.2. Practical implications

This automaticity has concrete consequences. For example, if a priest hears the confession of a dying faithful in a crisis zone without formal jurisdiction, but by reason of common error or of a positive doubt, the absolution is valid instantly thanks to supply. This case moreover is explicitly regulated in the Code of Canon Law of 1917 which specifies in canon 882 that “confession and absolution may be given to any person in danger of death, independently of his residence or of belonging to a particular parish”. Cardinal Ottaviani writes that supply 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 outside their control.

7.2.3.3 Scope in the internal and external forum

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

7.2.4 Essential distinctions and nuances

To grasp fully supplied jurisdiction, several distinctions are necessary:

• Supply vs ordinary jurisdiction: Ordinary jurisdiction is attached to a permanent charge (e.g.: a diocesan bishop), whereas supply is temporary and conditional.
• Supply vs delegated jurisdiction: Delegation comes from an explicit act of a superior authority, whereas supply is implicit and automatic.
• Limits of supply: It does not apply in case of avowed bad faith or of deliberate defiance of ecclesiastical authority. Cappello specifies that supply is not a personal power of the cleric; it is a help of the Church, limited to the cases provided by canon 209.

7.2.5 Historical examples and practical cases

The following examples illustrate the concrete application of supply:

1. Clandestine priests under Elizabeth I: These priests, acting in a context of persecution, benefited from supply by reason of the common error of the faithful who considered them as legitimate.
2. Chaplains of the Second World War: In war zones, priests exercised their ministry without clear delegation, their acts being validated by positive and probable doubt.
3. French Revolution: The refractory priests, not sworn, continued to administer the sacraments in conditions where their authority was uncertain, supply assuring the validity of their acts.

These cases show how supply supported sacramental life in troubled periods.

7.2.6 Theological and pastoral implications

Supply incarnates the principle “salus animarum suprema lex” (the salvation of souls is the supreme law). It reflects divine mercy in 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 supply is a measure of exception, witnessing to the wisdom of the Church in her salvific mission.

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

7.2.7. Three theological implications

• Divine mercy: Supply reflects the priority given to salvation over juridical rigour.
• Unity of the Church: It assures the continuity of the sacraments in time of crisis.
• Limits: It does not apply in case of bad faith or of deliberate defiance of authority.

 

8. Conclusion

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

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

Sources

The subject entering at once 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 Christi, vol. I, 3rd ed., Prato, Giachetti, sons and Co., 1909; C. Pesch, Praelectiones dogmaticae, Freiburg im Breisgau, vol. I, 1909; G. Wilmers, De Christi Ecclesia, Ratisbon, 1907., 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, Jacques Lecoffre et associés, 1852, edition consulted; Soglia, Institutiones juris publici ecclesiastici, Paris, 1879, vol. i; Vering, Droit canon., vol. II, Paris, 1881; Tarquini, Juris ecclesiastici publici institutiones, Rome, 1890; S. Sanguineti, Iuris ecclesiastici institutiones in usum praelectionum, 4th ed., Rome, Polyglot Typography of the S. C. de Propaganda Fide, 1901; B. Ojetti, Synopsis rerum moralium et juris pontificii, Rome, 1899; Cavagnis, Institutiones juris publici ecclesiastici, Rome, 1906, vol. i; Wernz, Jus Decretalium, Rome, 1906, vol. ii; Laurentius, Institutiones juris ecclesiastici, Freiburg i. B., 1914., T.C. article “jurisdiction”.