First published in The Reign of Mary, Issue #135

The Question of Jurisdiction During a Vacancy of the Holy See

By the Most Rev. Mark A. Pivarunas, CMRI

Among the various issues raised today in traditional Catholic circles, jurisdiction is one topic that has been a subject of confusion, especially among some lay “theologians.” According to these mistaken souls, there are no longer any lawful bishops or priests available to offer Holy Mass or to administer the Sacraments. Some of these unfortunate and misguided “theologians” have gone on a “mission” to divert the faithful from the reception of the Sacraments administered by the traditional clergy. That there are mistaken and confused souls around should be no surprise to us, given the unique situation in the Catholic Church since Vatican Council II. With the extended interregnum following the death of Pope Pius XII, we see fulfilled the prophetic words of Pope Leo XIII in his prayer to St. Michael: “In the Holy Place itself, where has been set up the See of the most Blessed Peter and the Chair of Truth for the light of the world they have raised the throne of their abominable impiety with the iniquitous design that when the Pastor has been struck, the sheep may be scattered” (Leo XIII, Motu Proprio, September 25, 1888). Although our situation is unique, it is not entirely unprecedented. In the past history of the Church, there have been difficult times — not as difficult as today — which should guide us in our perseverance in the true Faith.

The first historical difficulty to consider is the extended interregnum between the death of Pope Clement IV (November 29, 1268) and the election of Pope Gregory X (September 1, 1271). Here was the case of vacancy of the Apostolic See for nearly three years. In addition, during this extended interregnum, vacancies also occurred in various dioceses throughout the world. In order to provide spiritual shepherds for the priests and faithful, bishops were consecrated to fill these vacant Sees. The most important aspect of this historical precedent is that Pope Gregory X affirmed the lawfulness of the consecrations which took place without the usual papal mandate. Furthermore, those bishops functioned and provided for the spiritual needs of the faithful.

Monsignor Charles Journet in his book, The Church of the Word Incarnate, states: “The power of naming or instituting bishops belongs to the Roman Pontiff. But, remarks Cajetan in his De Romani Pontificis Institutione, we have to distinguish between the power of the Sovereign Pontiff and the exercise of this power, which has varied in mode… The elections of bishops effected during the vacancy of the Holy See and regarded as valid, are thus to be explained.”

The second historical precedent occurred during the Great Western Schism (1378-1417). During this time, there were two, then three, claimants to the papal office (one in Rome, another in Avignon, and a third in Pisa). Special focus should be centered on the fact that there could not have been three popes ruling the Church at the same time and that at least two of them were not true popes. The particular point to be made, however, is that two of these false claimants had “mandated” the consecration of bishops and these bishops ordained priests and appointed them as pastors.

How did the Church resolve this ecclesiastical mess? At the Council of Constance, attended by some 18,000 clergy, with the resignation or abdication of the claimants, rules were established for the papal election. [“In case of ambiguity (for example, if it is unknown who the true Cardinals are or who the true pope is, as was the case at the time of the Great Schism), the power of applying the Papacy to such and such a person devolves on the universal Church, the Church of God.” — Cardinal Cajetan as quoted by Monsignor Journet, The Church of the Word Incarnate].

With the election of Pope Martin V, the Great Western Schism came to an end. A question may be raised, however, about the Sacraments administered by the bishops and priests who mistakenly followed the unlawful claimants to the Papacy. These anti-popes could not have given a canonical mission and ordinary jurisdiction to the bishops under them. Nor could these bishops grant faculties to the priests under them. Were the Sacraments administered by these bishops and priests during the Western Schism unlawful and in the case of Penance invalid (due to the lack of ordinary jurisdiction)? The answer to this question is found in De Ecclesia Christi by Fr. Timothy Zapelena, S.J.:

“The true pope was the Roman one, that is Urban VI and his successors. Therefore, he was able to give jurisdiction even to the other bishops of the other obediences (on account of common error of the faithful together with the colored title).”

Fr. Zapelena goes even further in his treatise and considers what would have been the situation if all three papal claimants were not truly pope. He answers: “For the rest, if you figure those three popes to be null, you ought to admit that jurisdiction is supplied (on the account of color of title) not indeed by the Church, which lacks the supreme power, but by Christ Himself, Who would have conferred jurisdiction on each of these anti-popes as much as was necessary.”

This concept of supplied jurisdiction is well established in Canon Law and there are numerous examples cited in moral and sacramental theology.

With the end of the Western Schism and the election of Pope Martin V, the Sacraments administered by the mistaken clergy who adhered to the wrong factions (who thus lacked a true canonical mission and ordinary jurisdiction) were never called into question. The Church supplied the jurisdiction to the bishops and priests.

Canon Law describes the three types of jurisdiction: ordinary, delegated, and supplied. The traditional clergy today receive supplied jurisdiction at the moment of their administration of the Sacraments. And this is provided by the Church for the spiritual benefit of the faithful. So generous and beneficent is our Holy Mother the Church that She even allows the faithful for their spiritual benefit to approach an excommunicated priest (toleratus: before sentence). According to Canon 2261: “The faithful can for any just cause ask for Sacraments or sacramentals of one who is excommunicated, especially if there is no one else to give them.”

A well-known principle of sacramental theology is: the Sacraments are for men (Sacramenta propter homines).

Part of the confusion on the part of some of these lay “theologians” is the issue of “canonical mission.” They erroneously hold that unless a bishop or a priest has a “canonical mission,” he cannot lawfully administer the Sacraments. Their problem is their lack of understanding of the distinction between orders and jurisdiction.

In The Sacred Canons by Rev. John A. Abbo, S.T.L., J.C.D. and Rev. Jerome D. Hannan, A.M., LL.B., S.T.D., J.C.D., we read:

“The hierarchy of orders is the power which of its nature directly promotes the sanctification and the salvation of the faithful through public worship, especially through the Holy Sacrifice of the Mass, and the administration of the sacraments.

“The hierarchy of jurisdiction is the power of governing the faithful in order that they may be brought to eternal life.

“Differences distinguish the two kinds of hierarchy. The power of orders is acquired through a sacred rite; the power of jurisdiction, except in the case of the Roman Pontiff, through canonical mission. The power of orders once acquired is never lost, and any exercise of that power thereafter is always valid, though it may be unlawful; the power of jurisdiction can be revoked and the exercise of it thereafter is ordinarily invalid. In the hierarchy of orders three degrees, at least, are of divine origin; in the hierarchy of jurisdiction, only two. It is possible that the jurisdiction usually associated with  a particular degree of the hierarchy of orders may be possessed by one not enjoying that degree, e.g., the jurisdiction over a diocese possessed by an administrator or a vicar general who is a priest. On the other hand, that jurisdiction may be wanting to one who possesses the degree of the hierarchy of orders with which it is ordinarily associated, e.g., to a titular bishop.”

The point to be made here is that even in ordinary times not all bishops possess ordinary jurisdiction and not all priests possess faculties for the administration of the Sacraments. Moral theologians treat of this subject when they consider whether a priest commits a sin by administering a Sacrament without the necessary jurisdiction. St. Alphonsus Liguori among others teaches that when there is a real necessity on the part of the faithful, a priest does not commit sin by invoking supplied jurisdiction in the administration of the Sacraments.

In an excellent article on this topic, Traditional Priests, Legitimate Sacraments, Fr. Anthony Cekada makes reference to moral theologians who teach that there is a moral obligation for priests without faculties to administer the Sacraments when the faithful are in serious need.

“When priests who have the cura animarum are lacking, other priests are bound out of charity to administer the sacraments… in serious need for a community, [such priests] are bound to administer the sacraments, even at the risk of their lives, as long as there is reasonable hope of assisting and there is no one else who will help” (Merkelbach 3:87).

“They are bound by a certain general obligation arising from the sacred order they received. For Christ the Lord made them priests to devote themselves to saving souls. Because of this purpose, their special duty is to administer the Sacraments. This is obvious from the ordination rite, which gives them the power to offer sacrifice and absolve from sins, and which specifies administering the other sacraments among their other duties… This obligation binds more gravely depending on the seriousness of the spiritual need of the faithful in the dioceses where [such a] priest is supposed to serve or in the place where he lives. When such a community is obviously in serious need — when, for instance, due to the small number of priests or confessors, people have no convenient way to assist at Mass on Sundays and feast days and receive the Eucharist, or where it is inconvenient for people to frequent the Sacrament of Penance, so that many remain in sin — a priest has a grave obligation to administer these sacraments and to prepare himself properly for the duty of confessor” (Aertnys-Damen, Theologia Moralis 2:26).

Time and space do not allow us to review the other relevant issues to be raised against those lay “theologians” who are on their “mission” to persuade the Catholic faithful to stay home rather than receive the Sacraments from the traditional clergy. These matters have been treated frequently in the past, such as the intrinsic cessation of law, epikeia (the benign interpretation of law), and the very nature of law itself (the common good). The faithful need not be disturbed by these theological troublemakers. They come and they go. Their position is indeed sad and can be described in four words. Fr. Anthony Cekada once wrote an article entitled “Follow Me or Die” concerning those who demand complete submission to their positions. For those who promote this erroneous position to stay home, I would identify them with the title “Follow Me and Die.” Without the Mass and Sacraments, they deprive themselves and their children of so many graces! What a tragedy! Let us pray for these poor mistaken souls.