“Does jurisdiction flow like a river from a spring – such that if the spring stops, so does the river?”
In this series, we are considering whether the illegitimacy of Francis and his recent predecessors would necessarily entail the disappearance of the Church’s hierarchy as a whole.
It is well known that this is one of the most common objections to the idea of an extended vacancy of the Holy See.
My purpose is to show that such an extended vacancy does not necessarily lead to the disappearance of the hierarchy of the Church – by which I mean residential bishops reigning over dioceses (as established in previously). I intend to drive a wedge between the question of the vacancy of the Holy See on the one hand, and the apostolicity of the Church on the other.
Demonstrating the distinction between these two questions obviously has apologetic value – regardless of one’s personal opinions about the continuity of the hierarchy.
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The Roman Pontiff and Jurisdiction
Over the course of history, theologians have discussed whether the jurisdiction of bishops is received immediately by God – e.g., through episcopal consecration – or whether it is received directly from the Roman Pontiff, and mediated through him.
The latter opinion has been more common, and was mentioned in several documents of Pius XII’s magisterium. In his encyclical Mystici Corporis Christi, he taught the following:
“… Bishops must be considered as the more illustrious members of the Universal Church, for they are united by a very special bond to the divine Head of the whole Body and so are rightly called ‘principal parts of the members of the Lord’; moreover, as far as his own diocese is concerned, each one as a true Shepherd feeds the flock entrusted to him and rules it in the name of Christ.
“Yet in exercising this office they are not altogether independent, but are subordinate to the lawful authority of the Roman Pontiff, although enjoying the ordinary power of jurisdiction which they receive directly from the same Supreme Pontiff.
“Therefore, Bishops should be revered by the faithful as divinely appointed successors of the Apostles, and to them, even more than to the highest civil authorities should be applied the words: ‘Touch not my anointed ones.’” (emphasis added)
Others, although writing after Mystici Corporis Christi, seem less sure of this – even if they favour the doctrine expressed, consider it certain in itself, and refute other explanations.
Further, in 1955 (and thus also after Mystici Corporis Christi and Ad Sinarum Gentem) the theologian Berry wrote:
“Since the episcopate is a divine institution, bishops receive the power of jurisdiction from Christ; but whether this power comes directly from Christ, or through the agency of the Roman Pontiff, is a disputed question.”
Neither Berry nor his diocesan censors appear to believe that Pius XII wished to settle the question in a completely definitive way. We should bear this in mind when some seek to use this objection to rule out an extended vacancy in this oblique fashion.
However, Berry himself explains why “the opinion that jurisdiction is conferred by episcopal consecration” is “untenable”. Those interested in a contemporary discussion of this could consider Abbé Damien Dutertre’s analysis in “On Collegiality.”
I accept Berry’s statement, and hold to the thesis that the Roman Pontiff is the source of ordinary jurisdiction. I also do not think that we should try to explain our current crisis with “less common” or minority opinions, or those which are less certain than others. As such, an objection based on this common and more certain thesis should not be evaded by proposing minority ideas or novelties. Rather, it must rather be met and answered.
However, even the thesis taught by Pius XII has aspects which remain open to discussion. Berry writes elsewhere:
“The authority of the Roman Pontiff to constitute bishops for all parts of the Church may be exercised directly by personal appointments, or indirectly by delegating others, either by law or by approved custom, to elect persons to the episcopal office.
“The former method is in general use today, at least in the Western Church; the latter was common in the earlier ages and is practiced to some extent even today. […]
“Since jurisdiction does not come through the reception of Orders, it must be conferred upon appointment to the episcopal office by the Roman Pontiff; but the question still remains whether he simply designates the person upon whom Christ himself confers it. This question was discussed at the Council of Trent, but no decision was given, probably because it has no practical bearing.”
This question may have had no practical bearing in Berry’s time, but it touches on matters which are important to us today.
Let’s note that asking this question presumes that episcopal consecration is not the source of jurisdiction – even a jurisdiction which is inaccessible until it has been assigned to a particular church by the Roman Pontiff.
Let’s consider some aspects of this in further detail.
Some modern writers understand the doctrine expressed by Pius XII to mean that diocesan bishops must be personally appointed by the Roman Pontiff, and explicitly endowed with the power of jurisdiction by him. It seems clear that this is a mistake – and Mgr Joseph Clifford Fenton notes as much.
Others seem to see jurisdiction as flowing like a river from a spring, such that if the source is removed, so is the power. Of course, as Van Noort says, “the pope can diminish, increase, restrict, or even completely take away the jurisdiction of a bishop” – but this does not vindicate this image. Further, the ordinary jurisdiction of bishops remains, even during a papal interregnum, in the absence of the source of jurisdiction – and so such an image cannot be helpful in understanding this matter.
Finally, some even understand this doctrine as meaning that diocesan bishops are merely the delegates of the Roman Pontiff.
All these understandings raise problems for the distinction between ordinary and delegated jurisdiction, the definition of an office, and the settled theology of the constitution of the Church.
Types of jurisdiction
First, as we have seen previously, Canon 197 of the 1917 Code of Canon Law distinguishes between jurisdiction which is ordinary (attached to an office) and that which is delegated (merely given to a person).
As a reminder, an office is defined in the following way:
§ 1. […] in the strict sense, however, it is a divinely or ecclesiastically ordered responsibility, constituted in a stable manner, conferred according to the norms of the sacred canons, entailing at least some participation in ecclesiastical power, whether of orders or of jurisdiction.
Canon 197 §2 distinguishes between two types of ordinary jurisdiction. First, there is that which is “proper” (“exercised by one who has it in his own name”); then, there is that which is “vicarious” (“exercised in the name of another”).
Vicarious ordinary jurisdiction may appear similar to delegated jurisdiction, but it is distinguished by being attached to an office (as defined above) by law – even if the jurisdiction attached to this office is exercised in the name of another.
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Are diocesan bishops mere delegates of the Pope?
Canon 329 states the following:
§ 1. Bishops are successors of the Apostles and by divine institution are placed over specific churches that they govern with ordinary power under the authority of the Roman Pontiff. (emphasis added)
The phrase in Canon 329 is sometimes rendered as being “by divine right.”
As discussed previously, the reason that the residential bishops are the successors of the apostles is because they are the ones who succeed to the ordinary pastoral office of the apostles – that is, the mission of teaching, governing and sanctifying.
These powers, attached to the pastoral office, are distinguished from the extraordinary powers and gifts granted to the Apostles on a personal basis – which included a “universal jurisdiction” (albeit still subject to St Peter) and personal infallibility.
It is a commonplace that, in the words of Salaverri, the power “of the priesthood” comes from episcopal consecration – but that the power of teaching and governing come “by reason of jurisdiction.” Salaverri, in defining the terms relevant to these two powers of the pastoral office, makes clear that “jurisdiction” refers to ordinary jurisdiction, and specifically that which is proper:
“[T]he one who obtains the office and exercises it with regard to men as something proper to himself, not as taking the place or office of some other human person.”
“The power of the Bishop is not merely delegated or extraordinary or vicarious coming from some other human person, although it is the power of a bishop ‘placed under the due authority of the Roman Pontiff,’ who not in his own name, ‘but in the name of Christ feeds and governs his flock.’” (Emphasis added)
Van Noort explains further:
“The bishops are said to possess this ordinary power by divine right because their office was established not by the Church but by God. For God Himself – Christ or the Holy Spirit – laid it down that in normal circumstances particular churches should be ruled by their own individual bishops.”
“[N]ot even the pope himself can cancel that office, by decreeing, for example, that vicars apostolic should universally preside over particular churches, or that groups of bishops should take over that office.”
Dom Charles Augustine makes a similar comment in his discussion of vicarious power:
“To assume that a bishop has but a vicarious power, derived from the pope, whose vicar he is, would offend against the divine institution of the Church.”
For these reasons, it is clear: diocesan bishops (who are the successors of the Apostles in the relevant sense) are by no means the mere delegates of the Roman Pontiff. This is so, even they though they receive ordinary jurisdiction directly from him, can only exercise this jurisdiction subject to him, and can have this jurisdiction withdrawn by him.
Understanding the nature of these relationships between the Pope, the diocesan bishop, ecclesiastical office and ordinary jurisdiction should start to shed light on how and why apostolic succession and jurisdiction may continue, even during an extended vacancy of the Holy See.
Having discussed the nature of jurisdiction and offices in the previous part, let’s summarise what we have seen in this part:
- Resident bishops receive their ordinary jurisdiction directly from the Roman Pontiff
- However, they are not merely his delegates
- Rather, ordinary jurisdiction is that which is attached to an office by law, and it is “proper” to the resident bishop, as “it is exercised by one who has it in his own name” – albeit in the name of Christ himself, and always subject to the Pope
- These bishops are thus empowered to exercise the full pastoral office of the apostles, and thus they are their successors in the proper sense relevant to apostolicity of succession.
As we have seen in previous parts, these bishops are an indispensable part of the constitution of the Church.
So what would happen if there were no Roman Pontiff from whom they could directly receive ordinary jurisdiction?
I have already noted that many talk as if ordinary jurisdiction is continually delegated by the will of the reigning pontiff – as if it flows down from him, as a river flows from a spring.
But – as I also noted – when a spring stops, the river dries up, and no more water can be had. It is hard to reconcile this image to the nature of an office as a stable position, to which the power is attached by law. It also seems to conflate ordinary and delegated jurisdiction.
This conflation, in turn, seems to reduce the bishop into a mere delegate of the pope. But we have seen that this is not so: the ordinary, in his own person, holds a divinely instituted office by divine right (albeit subject to the Roman Pontiff).
Let’s be clear, that if we conflate ordinary jurisdiction with that which is merely delegated – or if we conflate ordinary jurisdiction proper with that which is vicarious – then we are essentially already denying the existence of ordinary jurisdiction in the proper sense. In light of this, we can perhaps understand why some think that ordinary jurisdiction can disappear from the face of the earth, or that the actual disappearance of it can somehow be explained by its remaining in potency (namely, that it can be recovered).
All this raises further questions. If ordinary jurisdiction is that which is attached to a particular office, then how did it come to be attached there? Who attached it, and whose laws established such offices in the first place?
The answer appears to be obvious: it is the Roman Pontiff himself who established such offices with their attached jurisdiction – even if this was only with his implicit or tacit approval, or by the force of custom. As the canonist Gerald Aloysius Ryan wrote in 1939:
“As it is the prerogative of the Roman Pontiff alone to erect, divide, unite and suppress dioceses, so it is his alone to appoint bishops over them. Others may by positive concession of the Church enjoy the privilege of electing, presenting or designating a candidate, but this of itself has merely a factual and not a juridical significance or consequence.”
As such, the ordinary jurisdiction attached to diocesan sees is received from the Roman Pontiff, who has attached it, by law (whether explicitly, implicitly or tacitly), to these and other offices, which have all been constituted in a stable manner. No one receives this ordinary episcopal jurisdiction without attaining a relevant office to which it is attached – and one who does attain such an office, also attains the jurisdiction.
As far as I can see this jurisdiction is only received because the Roman Pontiff “put it there”, so to speak.
I welcome correction on these points, if such can be given – but they seem to me to satisfy the requirements of the common doctrine on the source of jurisdiction.
With all this clarified, we can return to one of the central, burning questions of our time – which I have already begun addressing obliquely in this piece. The problem and the question are as follows:
The normal way that a man accedes to the office of a diocesan bishop has, in many places and for centuries, been through appointment by the Roman Pontiff.
But is it possible, in the absence of a reigning Roman Pontiff, for a man to accede to a diocesan see – and thus the attain the ordinary jurisdiction attached to it?
We shall consider this in the following part.
Learning Sacred Theology II: Ecclesiology, Dogmatic Theology and Apologetics
Pope Leo XIII – On the Duties of Laymen to Study and Spread the Faith
A Note for Confused Catholics – Apologetics and Dogmatic Theology
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 Pope Pius XII, Encyclical Mystici Corporis Christi, 1943, n. 42. Available at https://www.vatican.va/content/pius-xii/en/encyclicals/documents/hf_p-xii_enc_29061943_mystici-corporis-christi.html
 Cf. the below:
“By virtue of God’s Will, the faithful are divided into two classes: the clergy and the laity. By virtue of the same Will is established the twofold sacred hierarchy, namely, of orders and jurisdiction. Besides – as has also been divinely established – the power of orders (through which the ecclesiastical hierarchy is composed of Bishops, priests, and ministers) comes from receiving the Sacrament of Holy Orders. But the power of jurisdiction, which is conferred upon the Supreme Pontiff directly by divine rights, flows to the Bishops by the same right, but only through the Successor of St. Peter, to whom not only the simple faithful, but even all the Bishops must be constantly subject, and to whom they must be bound by obedience and with the bond of unity.”
Pope Pius XII, Encyclical Ad Sinarum Gentem, 1954, n. 12. Available at https://www.vatican.va/content/pius-xii/en/encyclicals/documents/hf_p-xii_enc_07101954_ad-sinarum-gentem.html
 Cf. the below:
“For it has been clearly and expressly laid down in the canons that it pertains to the one Apostolic See to judge whether a person is fit for the dignity and burden of the episcopacy, and that complete freedom in the nomination of bishops is the right of the Roman Pontiff. But if, as happens at times, some persons or groups are permitted to participate in the selection of an episcopal candidate, this is lawful only if the Apostolic See has allowed it in express terms and in each particular case for clearly defined persons or groups, the conditions and circumstances being very plainly determined.
“Granted this exception, it follows that bishops who have been neither named nor confirmed by the Apostolic See, but who, on the contrary, have been elected and consecrated in defiance of its express orders, enjoy no powers of teaching or of jurisdiction since jurisdiction passes to bishops only through the Roman Pontiff as We admonished in the Encyclical Letter Mystici Corporis […]”
Pope Pius XII, Encyclical Ad Apostolorum Principis, 1958, n. 38-9. Available at: https://www.vatican.va/content/pius-xii/en/encyclicals/documents/hf_p-xii_enc_29061958_ad-apostolorum-principis.html
 “Following this explicit, even though brief, declaration by Pius XII the first opinion is, we feel, no longer tenable. We would agree with Cardinal Ottaviani’s statement that the second opinion ‘should now … be rated as absolutely certain because of the words of the supreme pontiff, Pius XII.’” Van Noort, ‘Christ’s Church,’ Dogmatic Theology Vol. II. 1957, n. 202. Trans. Castelot and Murphy, The Newman Press, Westminster Maryland.
 Joachim Salaverri, ‘On the Church of Christ,’ in Sacrae Theologia Summa IB (based on the version with the imprimatur dated 1955) 2015, n. 374. Trans. Kenneth Baker SJ, Keep the Faith.
 Abbé Damien Dutertre, On Collegiality, January 2023. Avaialble at: https://mostholytrinityseminary.org/wp-content/uploads/2023/01/Collegiality_Dutertre_2023.pdf
 Ibid. 233-4
 Pius XII, 1958, n. 39.
 “The teaching of Pope Pius XII on the origin of episcopal jurisdiction definitely is not a claim that St. Peter and his successors in the Roman See have always appointed directly every other bishop within the Church of Jesus Christ.” Mgr Joseph Clifford Fenton, ‘Episcopal Jurisdiction and the Roman See’, American Ecclesiastical Review, Catholic University of America Press, April 1949, pp 337-342. Available at: https://web.archive.org/web/20200718004737/http://www.strobertbellarmine.net/viewtopic.php?f=2&t=207
 Van Noort n. 202.
 Salaverri n. 255
 Salaverri n. 1294.
 Ibid. n. 334
 Ibid. n. 335
 Van Noort n. 197
 Augustine, 1918. p 173.
 Gerald A. Ryan, ‘Principles of Episcopal Jurisdiction – A Dissertation in Public Ecclesiastical Law,’ p 55. The Catholic University of America Canon Law Studies, No. 120, The CUA Press, Washington, DC, 1939.
 “Can. 145: Ecclesiastical office in the wide sense is any responsibility exercised legitimately for a spiritual end; in the strict sense, however, it is a divinely or ecclesiastically ordered responsibility, constituted in a stable manner, conferred according to the norms of the sacred canons, entailing at least some participation in ecclesiastical power, whether of orders or of jurisdiction.”