The territorial exercise of the jurisdiction
of Catholic bishops
in a time of prolonged vacancy of the Apostolic See
Table of contents
- Introduction
- Conciliar and canonical foundations
- Teachings of the classical theologians
- The apostolic model and the nature of territorial right
- The supply of jurisdiction
- Concrete application and conclusion
- Objection and refutation
- Concrete exercise of territorial jurisdiction in prolonged vacancy
- The supreme principle of canon law “Salus animarum suprema lex” and epikeia.
- List of sources
- Introduction
The theory according to which a form of territorial exercise of jurisdiction can be exercised by Catholic bishops in a time of prolonged vacancy of the Apostolic See since the public heresy of Paul VI in 1964 rests upon doctrinal and historical foundations attested by classical authors.
- Conciliar and canonical foundations
The Council of Trent, session XXIII, chapter 4, declares that the bishops, successors of the Apostles, have been established by the Holy Ghost to govern the Church of God. Canon 329 paragraph 1 of the Code of Canon Law of 1917 affirms: « Episcopi sunt successores Apostolorum et ex divina institutione in Ecclesia constituuntur. » (The bishops are the successors of the Apostles and are constituted in the Church by divine institution.)
Father Timotheus Zapelena S.J., in De Ecclesia Christi, 1954, pages 10-11 (Romae, Apud Aedes Universitatis Gregorianae), specifies that the Council of Trent, session XXIII, canon 6, concerns solely the potestas ordinis and not jurisdiction, the words « divina ordinatione » having been deliberately chosen.
The Council of Trent held, in 1563, its twenty-third session on the sacrament of Order. In this session, canon 6 says textually in Latin:
« Si quis erit, in Ecclesia catholica non esse hierarchiam, divina ordinatione institutam, quae constat ex episcopis, presbyteris et ministris : anathema sit. »
English translation:
« If anyone says that in the Catholic Church there is not a hierarchy instituted by divine ordinance, and which consists of bishops, priests and ministers: let him be anathema. »
According to Zapelena, this canon concerns solely the potestas ordinis (the power of order, that is the sacramental power received by the imposition of hands: power to consecrate the Eucharist, to remit sins, to confer orders, etc.). It does not concern the potestas jurisdictionis (the power of jurisdiction, that is the power to govern, to command, to teach with authority and to judge in the Church).
The Fathers of the Council of Trent deliberately chose the words « divina ordinatione » (by divine ordinance) rather than broader formulae which could have included jurisdiction as well. This precision of vocabulary shows that the Council affirms only that the sacramental hierarchy (bishops, priests, deacons) is of divine institution, without deciding here the question of how and to what extent the power of governing is transmitted or exercised.
The power of order (sacramental) is given directly by the sacrament and does not disappear. The power of jurisdiction (government) is a distinct question, regulated by the law of the Church and by historical circumstances. Zapelena, by underlining this choice of words, wishes to prevent one from drawing from canon 6 of Trent a conclusion too broad concerning jurisdiction. This distinction is important, especially when one examines how the power of governing can subsist or be supplied in the case of a prolonged vacancy of the Apostolic See.
- Teachings of the classical theologians: devolution
Cardinal Thomas de Vio Cajetan, in De Comparatione Auctoritatis Papae et Concilii, chapter XIII (edition Vincentius M. J. Pollet O.P., Scripta Theologica 1, Rome, Institutum Angelicum, 1936), teaches that in case of necessity the power of conferring the papacy is found in the universal Church by way of devolution, so that the common good may never be abandoned.
Cardinal Louis Billot, in Tractatus de Ecclesia Christi, volume I, question XIV, thesis XXIX (5th edition, Prati, Giachetti, 1927), writes that by natural law, if the superior authority ceases or fails, its attributes descend to the immediate inferior to the extent necessary for the survival of the society.
- The apostolic model and the nature of territorial right
The apostolic model itself, reported by the Acts of the Apostles and confirmed by Eusebius of Caesarea in Historia ecclesiastica (edition Leipzig, Hinrichs, 1903-1909) and by Saint Jerome in De viris illustribus (Paris, Migne, 1845), shows that the Apostles exercised their ministry over territories which partially overlapped without strict exclusive divisions. The precise territorial delimitation of dioceses is therefore a matter of ecclesiastical law, not of divine law, as is also taught by Wernz-Vidal in Ius Canonicum (Romae, Apud Aedes Universitatis Gregorianae, 1938) and Coronata in Institutiones Iuris Canonici (Turin, Marietti, 1947).
- The supply of jurisdiction
Canon 209 of the Code of 1917 provides that in case of common error or of positive and probable doubt, the Church supplies jurisdiction for the external and internal forum. Indeed this canon 209 shows that the Church possesses the power to supply jurisdiction when the salvation of souls requires it. This principle manifests that jurisdiction is not absolutely paralysed by the momentary absence of a pope.
Saint Alphonsus de Liguori, in Theologia Moralis, book VI, number 561, and Father Dominique Prümmer O.P., in Manuale Theologiae Moralis, volume III, number 507, confirm that the Church supplies what is necessary for the salvation of souls.
These authorities establish that jurisdiction never disappears totally from the Church, that territoriality is not of exclusive divine institution, and that mechanisms of conservation and of supply operate in prolonged vacancy.
- Concrete application and conclusion
The practice of the bishops Vézélis and Musey of attempting to delimit spheres of influence, attested by Eberhard Heller in « Auf der Suche nach der verlorenen Einheit » (Einsicht, Jahrgang XXXI, Nummer 2, Juni 2001, pages 32 and following), constitutes a concrete application of these principles, even if Heller judges it excessive in its practical modalities.
Catholic doctrine therefore holds that faithful bishops can, for the good of souls and under the guidance of the Holy Ghost, exercise a jurisdiction ordered to salvation, with a territorial dimension dictated by necessity and prudence, while awaiting the restoration of a legitimate pope.
- Objection drawn from the teaching of Pius XII and its refutation
It is sometimes objected that Pius XII declared impossible any territorial jurisdiction of the bishops in the absence of a pope, because all jurisdiction comes from the Roman Pontiff. This objection rests principally upon two texts.
In the encyclical Mystici Corporis Christi of 29 June 1943 (Acta Apostolicae Sedis 35, 1943, pages 193 and following), Pius XII teaches that the bishops enjoy the ordinary power of jurisdiction which they receive directly from the same Sovereign Pontiff. The corresponding Latin text is: « quamvis ordinaria iurisdictionis potestate fruantur, immediate sibi ab eodem Pontifice Summo impertita».
In the encyclical Ad Apostolorum Principis of 29 June 1958 (Acta Apostolicae Sedis 50, 1958, pages 601 and following), the same Pontiff affirms that jurisdiction passes to the bishops solely through the Roman Pontiff and that the power of jurisdiction which is conferred directly by divine right upon the Sovereign Pontiff reaches the bishops by this same right, but solely through the successor of Peter.
These declarations concern the ordinary transmission of jurisdiction in normal times, when the Apostolic See is occupied by a legitimate pope. They do not treat of the case of a prolonged vacancy of the See caused by the public heresy of a pretender.
The Code of Canon Law of 1917, canon 209 (Romae, Typis Polyglottis Vaticanis, 1917), provides: « In errore communi aut in dubio positivo et probabili sive iuris sive facti, iurisdictionem supplet Ecclesia pro foro tum externo tum interno. » (In case of common error or of positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and the internal forum.)
Saint Alphonsus de Liguori, Theologia Moralis, book VI, number 561, and Father Dominique Prümmer O.P., Manuale Theologiae Moralis, volume III, number 507, confirm that the Church supplies what is necessary for the salvation of souls.
Cardinal Thomas de Vio Cajetan, De Comparatione Auctoritatis Papae et Concilii, chapter XIII (edition Vincentius M. J. Pollet O.P., Scripta Theologica 1, Rome, Institutum Angelicum, 1936), teaches that in case of necessity the power is found in the universal Church by way of devolution so that the common good may never be abandoned.
Cardinal Louis Billot, Tractatus de Ecclesia Christi, volume I, question XIV, thesis XXIX (5th edition, Prati, Giachetti, 1927), writes that by natural law, if the superior authority ceases or fails, its attributes descend to the immediate inferior to the extent necessary for the survival of the society.
These authorities establish that the ordinary jurisdiction received from the pope in normal times does not prevent the supply of jurisdiction by the Church herself in a time of prolonged vacancy and of necessity for the salvation of souls. The territorial delimitation of dioceses is a matter of ecclesiastical law and not of strict divine law, as is taught by Wernz-Vidal, Ius Canonicum (Romae, Apud Aedes Universitatis Gregorianae, 1938) and Coronata, Institutiones Iuris Canonici (Turin, Marietti, 1947).
Thus the objection drawn from Pius XII does not prove the impossibility of a territorial exercise of jurisdiction by faithful bishops in a period of prolonged vacancy since the public heresy of Paul VI in 1964.
– 2nd Objection:
A contradictor will say:
« If the bishops can themselves determine the territories, there will be ten bishops for the same city. »
Reply:
Natural law imposes upon every legitimate authority the duty of seeking the common good. Consequently several bishops cannot reasonably claim simultaneously the same territory without precisely contravening the principle of necessity which founds this exceptional jurisdiction.
- Concrete territorial exercise of jurisdiction in prolonged vacancy
How is this territorial jurisdiction exercised concretely? Who determines for whom which territory and with what rigour? Is it a simple consensus among bishops?
The question of the concrete exercise of this territorial jurisdiction in prolonged vacancy of the Apostolic See finds no detailed regulation in the texts of the magisterium or of the theologians, because this extraordinary situation was not envisaged as a permanent state. This results from the absence of express provisions in the Code of 1917 and in the classical authors (Cajetan, Billot, Wernz-Vidal, Coronata).
One must first set aside a direct application of the apostolic model. In the time of the Apostles, Saint Peter already exercised the primacy. The other Apostles acted under his authority, at least tacit, even when their fields of action partially overlapped. The apostolic model cannot therefore be transposed purely and simply to a situation of prolonged vacancy of the Apostolic See. This emerges from the Acts of the Apostles and from the traditional doctrine of the primacy of Peter.
The justification of any form of territorial exercise of jurisdiction in sede vacante rests therefore solely upon the principles of necessity and of supply recognised by Catholic doctrine.
Canon 209 of the Code of 1917 (Romae, Typis Polyglottis Vaticanis, 1917) provides: « In errore communi aut in dubio positivo et probabili sive iuris sive facti, iurisdictionem supplet Ecclesia pro foro tum externo tum interno. » (In case of common error or of positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and the internal forum.)
Cardinal Thomas de Vio Cajetan, De Comparatione Auctoritatis Papae et Concilii, chapter XIII (edition Vincentius M. J. Pollet O.P., Scripta Theologica 1, Rome, Institutum Angelicum, 1936), teaches that in case of necessity the power is found in the universal Church by way of devolution so that the common good may never be abandoned.
Saint Robert Bellarmine also teaches that the Church always possesses within herself the means necessary for her own conservation (De Romano Pontifice, book II).
Cardinal Louis Billot, Tractatus de Ecclesia Christi, volume I, question XIV, thesis XXIX (5th edition, Prati, Giachetti, 1927), affirms that by natural law, if the superior authority ceases or fails, its attributes descend to the immediate inferior to the extent necessary for the survival of the society.
Cardinal Louis Billot does not limit himself to affirming a simple rule concerning ecclesiastical jurisdiction. He enunciates a general principle of natural law applicable to every perfect society. A society instituted for a necessary end cannot be deprived for a long time of the means indispensable to its own conservation. Consequently, when the supreme authority ceases or fails, the powers strictly necessary for the maintenance of the society descend, by a kind of devolution founded upon natural law, to the immediately inferior authority, to the extent required by the common good. This principle does not establish a new constitution of the Church, but ensures the continuity of its visible government until the restoration of the normal order. Applied to an exceptionally prolonged vacancy of the Apostolic See, it allows one to understand how the bishops can exercise the powers indispensable for the salvation of souls without claiming to usurp the prerogatives proper to the Roman Pontiff.
These principles apply precisely because the See is vacant. They do not require the permission of a living pope, since they intervene precisely when the pope is lacking. The territorial delimitation, being of ecclesiastical law and not of strict divine law (Wernz-Vidal, Ius Canonicum, Romae, Apud Aedes Universitatis Gregorianae, 1938; Coronata, Institutiones Iuris Canonici, Turin, Marietti, 1947), can then be organised in a prudent and limited manner.
As already mentioned above, the concrete practice, attested by Eberhard Heller in « Auf der Suche nach der verlorenen Einheit », shows that faithful bishops such as Vézélis and Musey attempted to delimit spheres of influence by mutual agreement, with a view to avoiding conflicts and ensuring the care of souls. Heller therefore judges this procedure excessive in its practical modalities, which indicates that it is not a matter of ordinary jurisdiction in the strict sense of normal canon law. This fact and this judgement of Heller are established according to the indicated source.
There exists therefore no unique instance which determines for whom which territory with the rigour of a pope or of a Roman congregation. The exercise takes place by prudence, necessity and practical consensus among the bishops who conserve the integral Catholic faith, under the guidance of the Holy Ghost, solely to the extent necessary for the salvation of souls, without claiming an exclusivity of divine right.
If one refused any possibility of practical exercise of jurisdiction during an exceptionally long vacancy, one would have to admit that the visible government of the Church could disappear entirely for several generations. Such a conclusion appears difficult to reconcile with the indefectibility and with the visible constitution of the Church taught by Vatican I. Consequently one must admit the existence of extraordinary means allowing the conservation of the ecclesiastical government until the normal restoration of the papacy.
- The supreme principle of canon law confirms this conclusion.
The whole of ecclesiastical legislation is ordered to the salvation of souls, according to the traditional axiom: « Salus animarum suprema lex. » It would be contrary to this supreme end to maintain that in the case of an exceptionally prolonged vacancy of the Apostolic See, every practical exercise of ecclesiastical government should cease for decades or entire generations. The principles of supply, of necessity and of devolution set forth by the classical theologians allow precisely the avoidance of such a consequence and ensure, to the extent strictly necessary, the visible continuity of the mission of the Church until the restoration of the normal hierarchical order.
The argument of epikeia (or canonical equity) reinforces this idea.
In canon law, epikeia allows one not to apply a human law (the necessity of papal nomination for jurisdiction) when the application of this law, in exceptional circumstances, would go against the end of the law itself (the salvation of souls). Saint Thomas Aquinas, Summa Theologiae, II-II, q. 120, a. 1 (Romae, Marietti, 1952).
- List of sources
Council of Trent, session XXIII, chapter 4, official Latin text of the Acts of the Council, edition of 1563.
Code of Canon Law of 1917, canon 329 paragraph 1 and canon 209, Romae, Typis Polyglottis Vaticanis, 1917.
Cardinal Thomas de Vio Cajetan, De Comparatione Auctoritatis Papae et Concilii, chapter XIII, edition Vincentius M. J. Pollet O.P., Scripta Theologica 1, Rome, Institutum Angelicum, 1936.
Cardinal Louis Billot, Tractatus de Ecclesia Christi, volume I, question XIV, thesis XXIX, 5th edition, Prati, Giachetti, 1927.
Father Timotheus Zapelena S.J., De Ecclesia Christi, pages 10-11, Romae, Apud Aedes Universitatis Gregorianae, 1954.
Eusebius of Caesarea, Historia ecclesiastica, edition Leipzig, Hinrichs, 1903-1909, Greek language.
Saint Jerome, De viris illustribus, Paris, Migne, 1845.
Wernz-Vidal, Ius Canonicum, Romae, Apud Aedes Universitatis Gregorianae, 1938.
Coronata, Institutiones Iuris Canonici, Turin, Marietti, 1947.
Saint Alphonsus de Liguori, Theologia Moralis, book VI, number 561, classical edition.
Father Dominique Prümmer O.P., Manuale Theologiae Moralis, volume III, number 507, classical edition.
Eberhard Heller, « Auf der Suche nach der verlorenen Einheit », Einsicht, Jahrgang XXXI, Nummer 2, Juni 2001, pages 32 and following, German language; French translation in Einsicht, Jahrgang 31, Nummer 7, December 2001.