Where does jurisdiction come from – and how does it come?
Note, April 2026: Aspects of my thought on this topic have developed since the time of writing. I am leaving this article as written; please see here for my current thoughts:
Some of the arguments made in the original article no longer seem so certain to me – and certain alternatives which I rejected also seem to have a greater degree of probability. Nonetheless, I believe that there is still “apologetic value” in explaining why an extended vacancy since Paul VI is compatible with the continuity of the hierarchy in act, even today.
Here are the parts of the series so far:
Series Recap
In this series, we are considering whether the illegitimacy of Paul VI and his successors 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.
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 mediately, through the Roman Pontiff.
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.’”1 (emphasis added)
Pius XII also taught the same thing in the encyclical Ad Sinarum Gentem, and in Ad Apostolorum Principis he taught it again, and reaffirmed the previous two documents.2 He also changed canon law, instituting stricter penalties for those who consecrated bishops without the mandate of the Roman Pontiff.3
The state of the question
Many theologians, including Ottaviani and Van Noort, consider Pope Pius XII to have settled this centuries-long theological debate on the source of episcopal jurisdiction.4 Others seem less sure of this – even if they favour the doctrine expressed, consider it certain in itself, and refute other explanations. For example, Salaverri (with an imprimatur from 1955) merely says of the thesis taught by Pius XII:
“We think that his opinion is to be preferred.”5
Further, in 1955, 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.”6
However, Berry himself explains why “the opinion that jurisdiction is conferred by episcopal consecration” is “untenable”.7 Those interested in a contemporary discussion of this could consider Abbé Damien Dutertre’s analysis in “On Collegiality.”8
But neither Berry nor his diocesan censors seem to have believed that Pius XII had settled the question in a completely definitive way.9 We should bear this in mind when some seek to use this objection to rule out an extended vacancy in this oblique fashion.
I hold to the thesis taught by Pope Pius XII, and I do not think that we should try to explain our current crisis with minority or “less common” opinions, or those which are less certain than others. As such, an objection based on the common and more certain thesis of Pope Pius XII should not be evaded by proposing minority ideas or novelties, such as those advanced by, for example, Bolgeni. 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.”10 (Emphasis added)
This question may have had no practical bearing in Berry’s time, but it touches on matters which are important to us today. The chief aspect of the question facing us is this: What exactly does it mean when Pius XII said, that “jurisdiction passes to bishops only through the Roman Pontiff”?11
Let’s consider some aspects of this in further detail.
Personal appointment by the Pope?
The doctrine taught by Pope Pius XII is liable to be understood in different ways – and not all of them are tenable.
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:
“Victoria, outstanding theologian though he was, seems to have misconstrued the question at issue, and to have imagined that in some way the traditional teaching involved the implication that all bishops had been placed in their sees by appointment from Rome. […]
“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.
“It does mean, however, that every other bishop who is the ordinary of a diocese holds his position by the consent and at least the tacit approval of the Holy See.”12
The theologian Van Noort also alludes to this when he states:
“The other, and always the majority opinion, maintained that bishops received their jurisdiction not directly, but indirectly from God. They receive it, in other words, through the supreme pontiff who, in establishing them as bishops, at the same time by explicit will, or at least by legal will, confers jurisdiction upon them. This second opinion, in the judgment of the same Benedict XIV, ‘seems: (a) more in harmony with reason; and (b) more in harmony with authority.’”13 (Emphasis added)
If the Pope’s “tacit approval” or “legal will” can be sufficient, then clearly a personal act on his part is not strictly necessary.
Writing prior to Pope Pius XII’s reign, Dom Charles Augustine OSB stated:
“[I]t must be remembered that the Church employs human factors and instruments in conveying ecclesiastical offices. Though, e. g., the supreme pontificate and the episcopate are of divine origin, yet the manner in which these offices are conferred has been determined gradually by human agencies, and historical facts must not be set aside for the sake of a preconceived idea. All that is necessary is to hold fast to the principle involved.”14
In spite of this, some have misunderstood the doctrine of Pope Pius XII to the point of seeing diocesan bishops as the mere delegates of the Roman Pontiff. This is certainly a mistake, as we shall see.
However, even accepting this, some writers have seen jurisdiction as flowing from the Pope like a river from a spring. This image is certainly legitimate in itself, as Pope Clement XIII taught:
“As from the head and apex of the episcopacy, that very episcopacy and every authority which bears the same name comes from here [the Papacy]. All waters flow from here as if from their very source, and they flow uncorrupted from a pure head through the various regions of the whole world.”15
But it may be pushed too far if it is assumed that the removal of the source results in the removal of the power. Even during a papal interregnum, in the absence of the source of jurisdiction, the ordinary jurisdiction of bishops remains, without an expiration date. Are these “pools” of jurisdiction that remain, but which are not replenished once the incumbent dies – and is such an analogy compatible with the Church’s definitions of both offices and ordinary jurisdiction? Or is the analogy starting to break down?
These are the questions addressed in this essay. Each of 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.
Are diocesan bishops mere delegates of the Pope?
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:
Canon 145
§ 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.
As we saw previously, 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”16); then, there is that which is “vicarious” (“exercised in the name of another”17).
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.
If we lose sight of the distinctions between these types of jurisdiction – particularly in relation to the ordinary jurisdiction of diocesan bishops, the successors of the Apostles – we are liable to fall into various kinds of error.
To understand this, let us consider the nature of a residential bishop’s authority. Canon 329 states the following:
Canon 329:
§ 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.18 (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 “ordinary” powers 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.19
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.”20 In defining the terms relevant to these two powers of the pastoral office, he 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.”21
He continues:
“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.’”22 (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.”23
He continues:
“[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.”24
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.”25
This point was also taught by Pope Leo XIII himself in Satis Cognitum:
“For He who made Peter the foundation of the Church also ‘chose, twelve, whom He called apostles’ (Luke vi., 13); and just as it is necessary that the authority of Peter should be perpetuated in the Roman Pontiff, so, by the fact that the bishops succeed the Apostles, they inherit their ordinary power, and thus the episcopal order necessarily belongs to the essential constitution of the Church. Although they do not receive plenary, or universal, or supreme authority, they are not to be looked [at] as vicars of the Roman Pontiffs; because they exercise a power really their own, and are most truly called the ordinary pastors of the peoples over whom they rule.”26
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.
The proposed reconciliation between the nature of offices and jurisdiction, and the role of the Roman Pontiff
When we see that ordinary jurisdiction is that which is attached by law to ecclesiastical offices, and that the residential bishop is a successor of the Apostles by divine right and not as a delegate of the Pope, we also begin to see how and why apostolic succession and jurisdiction may continue, even during an extended vacancy of the Holy See.
The clarifying question is as follows: How did ordinary jurisdiction come to be attached to the office, and by whose laws?
The answer appears to be obvious: it was the Roman Pontiffs that did so, by establishing the various diocesan sees, or simply approving them in an implicit or tacit way, or by the force of custom.
Now, this was a question which was debated prior to the Council. Fr Gerald Aloysius Ryan, in his dissertation Principles of Episcopal Jurisdiction, took the position that Christ himself established the office of bishop, and “implanted” the power in it.27 Fr José Campelo OFM expressed a similar idea in his 1962 paper “Origen de la Potestad Episcopal de Orden y de Jurisdicción”.28 This idea seems to problematic, because it reduces the role of the Roman Pontiff to one of appointment and designation, rather than being the source of jurisdiction himself. This paradoxically seems to make him absolutely necessary for the appointment of a bishop, but not in the way that the teaching of the Church seems to require.
While it is certain that Christ established the office of the episcopate in the abstract, the idea that it was Christ who attached it to the concrete office (e.g., to the Archdiocesan see of Westminster, England) is subject to problems which need to be clarified.
The solution appears to be this: Our Lord did indeed institute the episcopal office in the abstract, as a order of pastors under Peter, ruling portions of the flock in an immediate way, and by divine right. This institution, being of divine institution and divine right, cannot be abolished. However, Our Lord did not determine in the concrete which cities would receive diocesan sees, the boundaries of these dioceses, or various other matters which have been determined by the Church.
Insofar as they have been determined by the Church, they have been determined by the Pope – whether directly, or indirectly – who has received the plenitude of jurisdiction in the Church. And insofar as a concrete diocesan see is established, it has been established by the Pope. Insofar as this necessarily involves, by the divine institution and the nature of things, jurisdiction being attached to the stable position29 of an office, it is the Pope has who has indeed attached it by law – whether explicitly, implicitly or tacitly. All jurisdiction comes from him, and he is the one who has, in a sense, “put it there”.
And as such, whoever legitimately receives the office and the jurisdiction attached to it, receives it from the Pope as its source.
The fact that ordinary jurisdiction is attached to an office by law (Can. 197), and that an office is “constituted in a stable manner” (Can. 145), seems to indicate that the jurisdiction can be understood as remaining attached to the office when it falls vacant, “waiting” for the previous incumbent’s successor – until the see is suppressed by law, or allowed to fall into abeyance by custom.
We are obviously working with an analogy here – jurisdiction is not some sort of ectoplasm that is attached to a physical throne in a cathedral – but this abiding attachment seems to be required by the very nature of succession – which is the continuity of one man after another in a stable position, which continues to exist when vacant.
Conclusions
Having discussed the nature of jurisdiction and offices in the previous part, let’s summarise what we have seen in this part:
Residential 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
It is the Pope establishing a diocesan see that results in the attachment of jurisdiction to the concrete office
This attachment of jurisdiction continues when the office falls vacant.
As we have seen in previous parts, these bishops are an indispensable part of the constitution of the Church.
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 the matter further in the following part.
HELP KEEP THE WM REVIEW ONLINE WITH WM+!
As we expand The WM Review we would like to keep providing free articles for everyone.
Our work takes a lot of time and effort to produce. If you have benefitted from it please do consider supporting us financially.
A subscription gets you access to our exclusive WM+ material, and helps ensure that we can keep writing and sharing free material for all.
You can see what readers are saying over at our Testimonials page.
And you can visit The WM Review Shop for our ‘Lovely Mugs’ and more.
(We make our WM+ material freely available to clergy, priests and seminarians upon request. Please subscribe and reply to the email if this applies to you.)
Subscribe to WM+ now to make sure you always receive our material. Thank you!
The Apostolicity of the Church
Follow on Twitter, YouTube and Telegram:
Twitter (The WM Review)
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
“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
“[N]o person or group, whether of priests or of laymen, can claim the right of nominating bishops; that no one can lawfully confer episcopal consecration unless he has received the mandate of the Apostolic See.”
And:
“Consequently, if consecration of this kind is being done contrary to all right and law, and by this crime the unity of the Church is being seriously attacked, an excommunication reserved specialissimo modo to the Apostolic See has been established which is automatically incurred by the consecrator and by anyone who has received consecration irresponsibly conferred.”
Ad Apostolorum Principis, nn. 47–8.
“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.
Even several years after the encyclical, the theologian Joachim Salaverri commented in a Scholium entitled “On the mediate or immediate origin from God of the jurisdiction of Bishops”:
“This question was raised in the Councils of Trent and Vatican, but it was not decided. Several authors with Victoria and Vásquez held that the jurisdiction is given immediately by God to the individual Bishops; but generally catholic authors with St. Thomas, St. Bonaventure, St. Robert Bellarmine and Suarez hold that jurisdiction is given to the bishops immediately not by God but mediated through the Roman Pontiff. Pius XII teaches this opinion positively in the Encyclical, ‘Mystici Corporis,’ when he says:
“’But the bishops so far as their own diocese is concerned… are not completely independent but are subject to the proper authority of the Roman Pontiff, although they enjoy ordinary power of jurisdiction received directly from the Sovereign Pontiff himself.’
“We think that his opinion is to be preferred.”
Salaverri evidently did not believe that Pius XII was settling a question here, nor that the debate was closed. It is possible that Salaverri is simply in error, but if respected theologians are debating whether Pius XII was defining the matter, then we should be aware of what this means for the rest of the argument presented above.
For the sake of clarity, we do agree that the opinion given by Pius XII “is to be preferred” – if not treated as certain, as Ottaviani suggests.
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.
E. Sylvester Berry, The Church of Christ, 1955 version (with imprimatur dated 1955), p 233. Wipf and Stock Publishers, Eugene, OR, 2009.
Ibid.
Incidentally, John Lamont makes the following comments on the matter:
The passages from the encyclicals of Pius XII that are cited above cannot be seen as a proper and responsible exercise of the papal teaching office. One may speculate that these passages were included in the texts of these encyclicals by drafters at the Holy Office (of which Cardinal Ottaviani was the head at the time) in order to further the cause of a theological opinion that they accepted, without having to face the opposition that would arise if this opinion were presented in a direct and above-board fashion as a position that was being definitively taught by the Pope.
Source: https://rorate-caeli.blogspot.com/2023/12/on-papal-deposition-of-bishops-dr-john.html
When challenged on this comment, he provided the following response, beginning with a text from Mystici Corporis:
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 (cf. Cod. Iur. Can., can. 329, 1), and to them, even more than to the highest civil authorities should be applied the words: “Touch not my anointed one!”
The italicized text is inserted into a passage that teaches that neither individual Christians nor bishops can accept Christ as the Head of the Church while not adhering loyally to His Vicar on earth, and that bishops are subordinate to the lawful authority of the pope. The object of the passage is to teach this Catholic doctrine. The phrase about the reception of the power of jurisdiction from the Pope is not even given as a reason for this teaching. It is included simply as an aside. It cannot reasonably be understood as having the intention or the effect of settling the long-standing dispute among Catholic theologians about the origin of episcopal jurisdiction. Papal statements intended to settle important and centuries-old theological disputes do not and cannot do so by adding a subordinate phrase to a text that deals with a different subject-matter. They must clearly state the resolution to such debates and clearly state that Catholics are bound to hold this resolution. This follows from the character of magisterial teaching as being, among other things, a legally binding norm for belief and utterance. In order for a legal norm to come into force, it must be manifestly promulgated; this is a basic principle of Catholic law. Manifest promulgation requires a clear and explicit statement of what must be believed and the obligation to believe it. It cannot be done by a subordinate phrase. Papal encyclicals are not divinely inspired documents whose every assertion is guaranteed to be true and must be believed by Catholics. The statement of Mystici Corporis on the reception of episcopal jurisdiction can have only the most minimal degree of authority, and is more reasonably believed to have no authority at all.
The strong view of papal jurisdiction is expressed more clearly and at greater length by Pius XII in the encyclicals Ad Sinarum Gentem (1954), and Ad Apostolorum Principis (1958), addressed to the Catholic bishops and people of China. But these encyclicals cannot be understood as binding Catholics to accept this position, because a binding teaching on this subject would have to be addressed to the universal Church. [N.B.: This seems to be incorrect. See Fr Palmieri’s discussion of the matter here.] This is why I stated in my original article that the statements of Mystici Corporis, Ad Sinarum Gentem and Ad Apostolorum Principis on the subject of papal jurisdiction were improper and irresponsible uses of the papal teaching office. They give the impression to the uninitiated of settling a theological debate and making a binding pronouncement, while not in reality doing so.
Mr. Ureta criticises my remark that “one may speculate that these passages [sc. the passages supporting the strong view of papal jurisdiction] were included in the texts of these encyclicals by drafters at the Holy Office (of which Cardinal Ottaviani was the head at the time) in order to further the cause of a theological opinion that they accepted.” He observes:
Regrettably, in attributing this passage from Mystici Corporis to Cardinal Ottaviani or his staff, Dr. Lamont failed to check dates and made a historical error. The encyclical was published in 1943, but Cardinal Ottaviani was only appointed secretary of the Congregation of the Holy Office—of which the pope was the prefect—in 1959, sixteen years later.
I cite as an authority for my remark Msgr. Joseph Clifford Fenton, who was familiar with the workings of the Holy Office. Msgr. Fenton states:
It was Pope John XXIII who appointed Cardinal Ottaviani to the position of Secretary of the Holy Office. It is important to remember, however, that the Cardinal has been the effective head of this most influential of the Roman Congregations since 1935, when he was appointed Assessor of the Holy Office, after having served with great distinction as the Substitute Secretary of State.
I do not suggest that Cardinal Ottaviani introduced the strong view of papal jurisdiction into Mystici Corporis contrary to the will or belief of Pius XII, but that he introduced or caused to be introduced an inconspicuous mention of this view into the encyclical, with the intention of later being able to cite the passage as a definitive decison on the topic. Pius XII was a cautious man who tried to make reasonable accommodations to progressive opinion in the Church. It was most unlikely that he would have agreed to issue a clear and binding teaching requiring Catholics to accept the strong view of papal jurisdiction. That would not however prevent him from accepting the inclusion of an insinuation of this view in his encyclicals; he may not have given much thought to the matter when presented with a proposed draft.
Source: https://rorate-caeli.blogspot.com/2024/03/in-defense-of-moderate-position-on.html
Without agreeing with everything Lamont writes, or the way he writes it, his comments about whether Pope Pius XII actually settled the question provide an additional light on the texts from the theologians cited above.
Ibid. 233-4
Pius XII, 1958, n. 39.
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://www.wmreview.org/p/episcopal-jurisdiction-fenton
Van Noort, n. 202.
Dom Charles Augustine, A Commentary on the New [1917] Code of Canon Law, Vol. II, Clergy and Hierarchy, 1918. p 102. B. Herder Book Co., London.
Bouscaren and Ellis, Canon Law, Text and Commentary, 1963, p 136. Bruce Pub. Co., Milwakee.
Ibid.
All canons are taken from The 1917 or Pio-Benedictine Code of Canon Law, in English Translation with Extensive Scholarly Apparatus, trans. Dr Edward Peters, Ignatius Press, San Francisco, 2001
Salaverri n. 255
Salaverri n. 1294.
Ibid. n. 334
Ibid. n. 335
Van Noort n. 197
Ibid.
Augustine, 1918. p 173.
Fr Ryan writes – prior to the interventions of Pope Pius XII:
“The word ordinary, while it is ultimately referable to the power of the bishop, as used in the canon directly characterizes his person, which is being explicitly considered in this article. It signifies that his power is not entrusted to him personally but officially. It is not delegated, and he himself is not merely the delegate of any one within or without the Church, diocesan or extra-diocesan. It further denotes that he holds his power, whatever it may be, for the usual, every-day conduct of the diocese, and not exclusively for extraordinary conditions or circumstances.” (p. 51)
He continues:
“Finally, it is usual to discuss in connection with the monarchic episcopate the question of how the individual bishop derives his authority. The apostles, as was seen above, chose their own fields of labor. Their successors as the canon states, are assigned [p. 52] to a particular flock. 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. Juridical status is born only of canonical mission, the nomination by the Supreme Pontiff of the person as a participant in the apostolic office by the canonical provision of a diocese which he will govern.
“Christ himself sent the apostles and gave them power for their official purpose. Both the purpose and the power were thereby once and for all created. The episcopal office and power in general cannot be altered; the episcopate cannot be either augmented or abridged by the Church as to its ordinary potential capacity. The individual bishop’s office is a participation in that general office rather than a particularization thereof; his jurisdiction a participation in that general power rather than a particularization thereof. Both the office and the power exist prior to the bishop’s participation in them, and are not substantially affected thereby.
“The apostolic office is one, and the apostolic power inherent in that office is one. There can be no distinction between the apostolic office in one and the other diocese, since it is essentially one throughout the whole Church. There is also existentially but one episcopal office and power radically indivisable and consequently identical wherever found; there are, on the other hand, many officials. Each individual bishop holds and exercises the same office and power as all the others, without in the least detracting from the prerogatives of the others. Individual episcopates [p. 53] are not actual particularizations of a generic authority, nor are they distinguished one from another by reason of distinct office and power. There is no division of episcopal power itself, but merely a duplication of persons who exercise it. The distinction between the general and the particular, as well as between the particulars themselves is one of officials and material object, the determination of which has been left by Christ to the judgment of the Church. The Church does not institute particular episcopates in the sense that she directly differentiates particular episcopal offices and powers, but merely in the sense that she appoints particular, episcopal officials and apportions to each as the object of his office and power a particular episcopal object, a distinct territorial division of the Universal Church.
“The Sovereign Pontiff, then, neither creates the particular purpose or determines the potential power of the bishop. He merely deputes the person of the bishop and assigns the latter a specific sphere of jurisdiction. The properly nominated person enters upon his office and acquires his power when he takes juridical possession of its material object, a particular territory, since episcopal jurisdiction is by its nature a territorial authority. Consequently, until the bishop acquires the possession of the object which he is to govern, he cannot validly function.
“When these notions are properly understood, there appears to be a possible solution of the question regarding the immediate source of the individual bishop’s jurisdiction over his dioceses beyond the alternatives of the celebrated controversy so agitated in the Council of Trent though left undecided and still freely disputed. The question was whether the individual bishop receives his jurisdiction immediately from God through episcopal consecration or rather immediately from the Sovereign Pontiff through canonical mission. Although the latter of these two alternatives is now the more commonly accepted, and although there are both historical and positive arguments for each view, it seems possible that the immediate derivation of the individual bishop’s power, [p. 54] whether potential or actual, need not be traced in its authorship directly either to God or to His visible Vicegerent in the Church.
“It is obvious that Christ created the episcopal office. It is also obvious that to those whom He commissioned to that office He committed a power commensurate to it. It is also true, though possibly not always realized, that this power is really an entity distinct from the office, though necessarily consequent to and even concomitant with it. The words ‘Going therefore, teach ye all nations’ etc., even though they were pronounced in moral union with the words ‘Whatsoever ye shall bind on earth’ etc., nevertheless preceded the latter in the order of time and in the order of reason, and expressed respectively the assignment of the apostolic office and the confering of the apostolic powers upon those to whom they were spoken. The office itself was assigned before the power to fulfill it was confered. Though the office itself is a means to a higher end, namely, the purpose of the office, it is nevertheless a purpose or end in itself as related to the power of fulfilling it, since this power is the means to the fulfillment of the office. The power inheres in the office, but it exists there because of the office, and it follows in the real as in the rational order the existence of the office.
“Christ, then, created the office and implanted the power in it. His Vicar, the Pope, who is the root and source of all holding of power in the Church, by consequence vests also the one who hold[s] episcopal power; not indeed in the sense that he directly confers it, but in the sense that the Pope is deputed to designate the persons who are to be associated with himself in the government of the Church. It would seem, then, that as Christ incorporated the power into the office, so the Pope invests the person with the office, and that neither the One nor the other of them directly or immediately puts the person in power, but that both indirectly and mediately do so through the agency of the office. Whilst Christ and His Vicar must both be considered as embodying the source of episcopal power, Christ by the creation of the office together with its attendant power and the Pope by the designation of the incumbent and the assignment of a territorial object, [p. 55] yet it is only by a coalition of both these elements that the immediate source of jurisdiction is really provided.” [p. 56]
Although Ryan sees the authority, power or jurisdiction being attached to the office by Christ, rather than the Pope, it is clear that he acknowledges the principle that the man acquires it as soon as he acquires the office. The distinction between Christ’s institution of the episcopate in the abstract and in the concrete is discussed in the article, but we can note here that while Ryan’s position might point, if anything, to making the Pope absolutely necessary for the appointment of a bishop (which we have seen is false), it also reduces his role to appointing to an office, from which the man receives jurisdiction from Christ – rather than being the source of jurisdiction himself. Once again, let us recall that Ryan was writing prior to the interventions of Pope Pius XII – whatever the level of authority of those interventions are understood to have.
Ryan then proceeds to draw a distinction between papal and episcopal jurisdiction, arguing that they are different in kind.
“The jurisdiction of the Sovereign Pontiff, full and complete, is in its character specifically distinct from that of the subordinate episcopate. The plenitude of the papal power, though sufficient for the complete and entire government of the Universal Church (so that in an absolute sense, and aside from the positive will of Christ, the separate power of other bishops might be said to be superabundant), and though more than equal to the power of the subordinate episcopate, does not essentially include the latter. Although the Pope possesses all the authority of the Church, he holds the jurisdiction of the lesser episcopate in the sense that he disposes of it, not as a share in his own, but as something radically different. The character of this jurisdiction is not the same as that of his own. The two powers are distinct species of ecclesiastical jurisdiction, and the Roman Pontiff, even considered merely as the bishop of the particular Roman diocese, exercises only one of them. It remains, then, in the consideration of the status of the subordinate episcopate, to examine the power thereof, both as constituted in itself and in relation to the jurisdiction of the Sovereign Pontiff.”
Regarding this latter point, let us note that Mgr Zienelli, Bishop of Treviso, took the opposite position in an address at Vatican I, given on behalf of the Deputation of the Faith. Cited in Billot:
“[T]he episcopal power that the bishops each exercise in their diocese is of the same species as that which the sovereign pontiff exercises over all the dioceses, except that the sovereign pontiff possesses this power in its fullness, while the other bishops possess it in a restricted state; the sovereign pontiff possesses it without depending on anyone, while the bishops possess it in dependence upon the sovereign pontiff; the bishops possess this power within the limits of their diocese, while the sovereign pontiff possesses it without any limit of place and throughout the whole earth. We cannot but admit that the power of the sovereign pontiff is really of the same species as that of the bishops […]” (n. 959, Gleize edition)
Ryan continues elsewhere, presenting again the same ideas – both the principles which are helpful for our considerations, and his ideas about Christ implanting jurisdiction into the office himself (which seems to exclude the role of the Pope as the source of jurisdiction):
“Ordinary power, as opposed to delegated authority, may be either proper or vicarious. Episcopal jurisdiction is ordinary, not because it is annexed to the office of the bishop by the Church, but because it is implanted therein by Christ Himself. Since neither the office nor the power attached to it is the creation of the Church, but really that of Christ, both the office and the power are held only in his name, regardless of how they are immediately acquired. In the visible hierarchy of the Church there is no one in whose stead the bishop governs, or assumes and carries out the government of his diocese. Consequently, it has always been the common teaching of theologians and canonists that the bishop’s ordinary power is not merely vicarious but really proper to himself, in a word, that he acts in his own name.
“Just as the bishop is not merely the delegate of any one in the Church, neither is he merely the vicar of the Pope in the ordinary conduct of his diocese. It is consequently false to say that his authority is limited exclusively to those matters for which he is expressly commissioned by the Roman Pontiff. Although it may not have been his intent, the words of Fagnanus seem susceptible of this interpretation, namely that since the bishop’s jurisdiction is obtained directly from the Pope, it extends only to those things which the Sovereign Pontiff has designated. Such a limitation would naturally follow from his status as merely a vicar of the Pope; it is, however, a limitation which was never, either on principle or in practice, even remotely claimed by the one or recognized by the other.” (p. 71–2.)
Fr Campelo writes:
“It is important to note that from the legitimate fact that residential bishops formerly received the episcopal office from metropolitans or patriarchs, and today receive it from the pope, it does not follow that they also properly received – or now receive – from them the episcopal power of jurisdiction, which is the subject under discussion here. It is undeniable that when a person is legitimately promoted to the office of residential bishop, he ipso facto receives with that office the obligations attached to it and consequently also the ordinary power of jurisdiction necessary for the proper fulfillment of those obligations.
“However, it should be observed that this episcopal power, being ordinary (as established in canons 829 and 334), ‘is attached to the office ipso iure, by the law itself,” as canon 197 §1 states. In other words, when a residential bishop is promoted, he indeed receives the office from the superior who appoints him, but he receives jurisdiction from the law – that is, from the author of the law that established the office with its duties and rights.
“An example clarifies this point: In his diocese, the bishop has the right to erect parishes and to grant canonical institution to each and every parish priest. Thus, the bishop confers upon each parish priest the office and mission; and yet, the jurisdiction of this office, being ordinary, is not strictly given by the bishop, but by the common law (which is pontifical), as is clear from canon 462, to which the bishop himself is subject.”
Having said this, Fr Campelo then asks the same question mentioned above, and gives what he “believes” is the answer:
“Now we ask: in the case of the normal episcopate in the Church, who is the author of the law that attached this power to the episcopal office? We believe that the same one who imposed the pastoral duties upon the episcopal office also attached to it the ordinary power of jurisdiction necessary to fulfill those duties. Since these duties are fundamentally of divine law – that is, imposed by Christ when founding His Church, as explained earlier in our article (n. 17) – then the ordinary power of jurisdiction attached to that office must likewise have been granted by Christ.
“Accordingly, the attachment of the ordinary power of episcopal jurisdiction to the office was made by Christ Himself when He instituted the episcopate, as stated above (n. 32) – that is, in its remote origin. The effective participation in that power (its proximate origin) occurs by the will of Christ when a person is incorporated into the episcopal office according to the current canonical laws (nn. 10–14) within the true Church.”
Fr Campelo then proceeds to acknowledge “serious difficulties” that can be raised against his explanation, “some of a doctrinal nature and others of a practical kind.” The doctrinal objections are based on the very point of doctrine considered in this article: the Roman Pontiff as the source of jurisdiction. Here is his attempted answer:
“However, these texts and others like them do not, in fact, oppose the position we maintain. For we also hold that, according to current canonical discipline, it is the Roman Pontiff who confers upon residential bishops the episcopal office, to which are attached – by divine law – the fundamental obligations and powers proper to a bishop. In this sense, there is no difficulty in admitting that the episcopal power of jurisdiction proceeds indirectly from the one who grants the office – today the pope, and formerly the metropolitans and patriarchs, in communion with the Roman Pontiff and in accordance with legislation in some way approved by him.
“But this does not prevent the episcopal jurisdiction of residential bishops from coming to them – and always having come to them – by hereditary title as true successors of the apostles, from the one who granted it to the apostles, namely Christ. For this reason, in the same encyclical Mystici Corporis, it is also said of bishops, that “as true shepherds, they feed and govern the flocks assigned to them, each one in the name of Christ”. This means that residential bishops govern the flock entrusted to them in the name of Christ – that is, with authority received from the Savior, as was also established earlier in our article.
“b) Another difficulty arises regarding the practical exercise of episcopal jurisdiction. One might object that if this power is of divine law, it must therefore be independent of pontifical jurisdiction. But this conclusion is illogical. Indeed, although residential bishops receive – and have always received – their power of jurisdiction from God, they have never received it absolutely, and independently of the successor of St. Peter. Rather, they receive it as subordinated to his authority, since he too received it immediately from Christ to govern and shepherd not only the faithful but also the pastors of the entire flock – that is, the bishops. Therefore, bishops are subject to pontifical laws concerning pastoral governance and other matters of ecclesiastical discipline, as we stated earlier in our article (n. 29).
“This should not be surprising. Returning to the example of parochial jurisdiction – which, as we have seen, is attached to the office by common law and not properly by concession of the bishop who appoints – the same jurisdiction is nevertheless subordinated to the authority of the bishop with regard to the observance of synodal laws, the reservation of certain delicate matters (such as marriage cases, exemptions of religious, etc.), and the possibility that the parish priest may be admonished, corrected, suspended, or removed if necessary.
“In summary, we hold that the episcopal power of jurisdiction in each residential bishop comes from God, as a kind of hereditary share derived from the apostles, by the very fact of being legitimately promoted to the episcopal office, through which they are incorporated into the hierarchical structure of jurisdiction established by Christ – yet always in subordination to the primacy of the Roman Pontiff.”
Pace Fr Campelo, it does not seem that his solution safeguards the role of the Roman Pontiff as the source of jurisdiction, but – as with Fr Ryan – reduces him to the source of the appointment to the office. But also like Fr Ryan, Fr Campelo states the principle that the jurisdiction, attached to the office by law, is received by the man who accedes to the office.
“Origen de la Potestad Episcopal de Orden y de Jurisdicción”, in “Semana Española de Teología. (1963). XXII Semana Española de Teología (17-28 sept. 1962): Teología del episcopado y otros estudios. 1963. Consejo Superior de Investigaciones Científicas. https://archive.org/details/teologiadelepisc00sema/page/315/mode/1up
“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.”
Did you ever answer the below question in a follow-up essay?
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.