Sedevacantists usually appeal to the suppletory principle of canon 209 to counter the accusation of heresy regarding the necessity of ordinary jurisdiction demanded by canon 196. Canon 209 states: “In common error or in positive or probable doubt about either law or fact, the Church supplies jurisdiction for both the external and internal forum.” There are two distinct arguments proposed here. One that supplied jurisdiction is in some sense an ordinary power, and perpetuated regardless of whether there are any bishops with ordinary offices. The second argument is that the Church supplies jurisdiction to a publicly heretical pope so that he can validly appoint bishops with ordinary jurisdiction. I will deal with the second argument first.
The Church can't supply jurisdiction to a pope per the definition of Vatican I, namely, that he has an ordinary office. Supplied jurisdiction is a delegated one, which is mutually exclusive with ordinary powers/office. Since the pope is subject only to divine law for notorious heresy, and not the penalties assigned to occult and public heresy (canon 2197.1 & 4), the Church would have no need to supply jurisdiction. Notoriety is also antithetical to common error. So if the pope is a notorious heretic the Church wouldn't supply jurisdiction. The premise of my argument is that Catholic doctrine requires that legitimate bishops have ordinary office/powers. This is explicitly taught by both the First Vatican Council and Leo XIII. In his encyclical Satis Cognitum, Leo XIII writes,
But if the authority of Peter and his successors is plenary and supreme, it is not to be regarded as the sole authority. 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 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.[1]
The problem with the first argument is that supplied jurisdiction is not an ordinary power, but a delegated one. As canonist Fr. Francis Miaskiewicz notes, “In virtue of the fact that all jurisdictional power is divided into power that is ordinary or delegated [canon 197], the supplied power of canon 209 must be regarded as a delegation from the law (delegatio a iure). Such is the commonly accepted view of the authorities.”[2] Delegated power is defined by 17th century canonist Johann Reiffenstuel as “that which one does not possess in his own right, but only by the commission of another, whose place he fills.”[3] According to canonist Fr. Raymond Kearnery, ordinary power and delegated power are mutually exclusive. He writes,
Delegated power might be described simply as that which is not ordinary…The Code has defined delegated power as that which is committed to a person (quae commissa est personae). It has thus established an adequate division of all power into ordinary and delegated power, so that every power that is not the one, must be the other. The two categories are, therefore, mutually exclusive.[4]
The same author adds that supplied jurisdiction is a power given “not habitually, but in actu; the agent does not possess the power before he uses it, nor does he retain it afterwards. He possesses it only as long as is necessary for the valid exercise of the act.”[5] Citing the opinion of Wernz-Vidal,[6] De Meester,[7] Chelodi,[8] and Badii,[9] Fr. Kearnery argues that “an ecclesiastical office postulates a share in ordinary power.”[10] Ordinary power is defined by Fr. Joachim Salaverri as,
It is called ordinary inasmuch as it is opposed to both extraordinary and delegated power. Ordinary power, according as it is opposed to the extraordinary, is the power which, not only be exception in certain cases or circumstances, but continually in all cases and circumstances can always be exercised. According as it is opposed to delegated power, ordinary power is that which either by institution or by law is annexed to an office established to last perpetually, and therefore it belongs to some person by reason of the office; while on the contrary delegated power is that which has been communicated to a person is exercised by the right or in the name of someone else.[11]
By appealing to the suppletory principle of canon 209, sedevacantists have unwittingly conceded that none of their bishops have ecclesialistical offices as defined by canon 145.
Spanish theologian Fr. Joachim Salaverri considers it a matter of Catholic doctrine that “bishops by divine right succeed the Apostles in their ordinary office.” [12] He continues,
For, the hierarchy, instituted in the Apostles, by the will of Christ or by divine right is perennial. Therefore they always existed who, by divine right, fully succeeded the Apostles in their ordinary office. But only the Bishops de facto always fully succeeded the Apostles in their ordinary office. Therefore the Bishops by divine right succeed the Apostles in their ordinary office.[13]
This doctrine is taught both explicitly and implicitly by the First Vatican Council in its dogmatic constitution Pastor Aeternus. The Council decreed that the Pope has ordinary[14] and immediate[15] jurisdiction over the whole Church. In other words, at least one bishop must possess ordinary jurisdiction. The Council states:
So, then, if anyone says that the Roman Pontiff has merely an office of supervision and guidance, and not the full and supreme power of jurisdiction over the whole Church, and this not only in matters of faith and morals, but also in those which concern the discipline and government of the Church dispersed throughout the whole world; or that he has only the principal part, but not the absolute fullness, of this supreme power; or that this power of his is not ordinary and immediate both overall and each of the Churches and overall and each of the pastors and faithful: let him be anathema.[16]
According to Fr. Joachim Salaverri,
The power of the Supreme Pontiff is ordinary: 1) as it is opposed to extraordinary power, because it can be exercised continually and always in all cases and circumstances (Matt 16:19); b) as it is opposed to delegated power, because from the institution of Christ it is annexed to the office established in perpetuity, and so it belongs to the Roman Pontiff by reason of his office of founding the Church and feeding the flock of the faithful of Christ (Matt 16:18; John 21:15-17).[17]
Fr. William Humphrey S.J. interprets it in the same manner,
The supreme and universal power of the Pontificate which Christ established in the visible Church is what is called in law an ordinary power, or the power of an ordinary. It is ordinary not merely in the sense that it is not a delegated power; but also inasmuch as it is possessed in virtue of a Divinely instituted office to which it is indissolubly and inalienably attached. This power may be exercised not merely under extraordinary circumstances the existence of which would seem to call for it; or again merely by way of aid in support of lesser powers, when these seem to stand in need of aid; but always and everywhere, at all times, and in all places, and as regards all objects and all persons. It is a power which whenever actually exercised is always validly exercised.
There are powers of human institution which are ordinary, indeed, as attached to an office, but exercise of which is valid only under certain circumstances. There is, for instance, the power of an Archbishop, with regard to his Suffragans and the Dioceses of his Province, which, although it is an ordinary power, as attached to an Archiepiscopal See, can only be exercised under certain circumstances, and therefore extraordinarily.
The supreme and universal power, on the other hand, which Christ instituted in the visible Church, in the Pontificate which He established, cannot be, nor can it be conceived as being, other than in every sense an ordinary power. The episcopate was in the Apostles an ordinary power, as the pontificate or primacy was in Peter an ordinary power.
Besides Episcopal power there were in the Apostles other powers which were personal to the Apostles themselves as individuals, and were with them to pass away. Among these powers was their power of preaching with authority and infallibility not merely in one territory but everywhere throughout the world, a power which they had received not mediately from Christ through Peter, but immediately from Christ Himself; and their farther power of everywhere binding and loosing all things. Those powers were extraordinary in the Apostles; and to those powers there was no succession. In him alone was there to be succession of those powers, to whom alone Christ gave the Keys of His Kingdom. In him those powers were ordinary; and in the perpetual primacy of Peter the whole power of the Apostolate was to persevere. Hence it is that the Pontiff’s See alone is, without any qualification, called the Apostolic See. Succession which is merely by way of unbroken lineal descent from an Apostle would indeed be episcopal succession to that Apostle in his episcopate of order; but it would not be Apostolic succession in the sense of succession to that Apostle in his Apostolate. To succeed an Apostle is one thing, and to succeed to his Apostolate is another. [18]
The First Vatican Council also defined that bishops succeed the Apostles in their ordinary powers. Paragraph 5 of chapter 3, states,
This power of the Supreme Pontiff by no means detracts from that ordinary and immediate power of episcopal jurisdiction, by which bishops, who have succeeded to the place of the apostles by appointment of the Holy Spirit, tend and govern individually the particular flocks which have been assigned to them. On the contrary, this power of theirs is asserted, supported and defended by the Supreme and Universal Pastor…
According to Franscican theologian and bishop Carlos Kloppenburg,
By a unanimous vote, in which the minority spoke clearly and vigorously while the majority were serenely confident of the moderation of the Holy See, the Fathers of Vatican I rejected the idea that the Roman Pontiff can intervene in other dioceses "in an ordinary way," that is, in the daily, habitual government of the dioceses. The pope does not have habitual ordinary power in the dioceses; such belongs to the local bishops alone. In the discussion (we shall see some texts later on), it was said that pope cannot intervene in the diocese "arbitrarily," "in an unreasonable way," "regularly," or "unduly," but only when "salvation" and "unity" are at stake and when "the needs of the Church" and "clear usefulness" require such intervention. This is why the constitution on the Church of Vatican II will say bishops that "the pastoral office or the habitual and daily care of their sheep is entrusted to them completely" (LG 27b/52).[19]
Citing Fr. William Humphrey again,
Although episcopal jurisdiction is bestowed through man, it is nevertheless in its institution of Divine right. The Bishops are Vicars not of the Pontiff, but of Christ Himself. The Pontiff has no power to abolish Episcopal dignity and authority, which he did not institute, and, which is therefore not derived from him. Christ willed that in the visible Church there should be, besides the Chair of the Supreme Pontiff, the chairs of the subordinate Episcopate.The Bishops are not delegates of the Pontiff, for their power is an ordinary power, in virtue of an office and function instituted by Christ Himself. They are princes—tributary princes, indeed, but—true princes in Christ's visible Kingdom. Although the Pontiff can validly withdraw their jurisdiction from each and from all of them, he is nevertheless bound to substitute other Bishops in place of them, so that there should always be Bishops in the visible Church. Primarily, as we have seen, and as intending the existence of the visible Church, Christ instituted the primacy of a Supreme Pontiff.
Secondarily, and as having in view the universality of the visible Church, and the necessity that this Pontiff should have aid in his government thereof, Christ willed that there should be Bishops.To the Pontiff the election of those Bishops, belongs by Divine right. It is inherent in the Divinely established primacy. No one can, without the Pontiff's consent, assume or exercise authority over the Pontiff's own immediate subjects. When he has at any time given the right of election to the Bishops of a Province, or to the Chapter of a Cathedral Church, this right flowed to them from his concession, and was not a right inborn in them. The election, moreover, by them of a Bishop still requires his confirmation, so that his Divine right to the election of Bishops remains intact.
Through the Pontificate which Christ instituted in the visible Church, Christ provided for the oneness of that Church which He willed to be episcopal. The episcopate had its roots in the Apostles, and the episcopate today is one with the episcopate that was in them. All Bishops form with them one corporate body or moral personality, the Priesthood in its fulness.
The Pontificate began in Peter, on whom Christ bestowed the Primacy to which He subordinated the Apostolate, and therein the Episcopate; and with Peter the whole line and series of his successors forms one moral personality, one continuous Divine dynasty, one House of Peter. Independently of this divinely instituted and divinely guaranteed perpetual primacy, there could not exist upon the earth that one visible Church which Christ instituted.[20]
Besides this, there are other problems with appealing to the suppletory principle of canon 209. Since the majority of sedevacantists reject that there are any bishops with ordinary jurisdiction, how can they appeal to canon 209 when the same canon presupposes that the faithful mistakenly believe that the cleric in question has ordinary jurisdiction? For sedevacantists who claim uncertainty regarding whether their bishops have ordinary jurisdiction, German theologian Caspar Schieler argues that doubtful jurisdiction always remains doubtful.[21] In addition, claiming ignorance of whether there are any bishops with ordinary jurisdiction undermines the formal visibility of the Church.
The reason why the majority of sedevacantists deny that their bishops have ordinary jurisdiction is because canon 147 of the 1917 CIC requires legitimate authorization to receive jurisdiction. Canon 147 reads:
1. No ecclesiastical office can be validly obtained without canonical provision.
2. Under the name canonical provision comes a grant of ecclesiastical office made by the competent ecclesiastical authority according to the norms of the sacred canons.
Before the promulgation of the 1917 CIC, the majority of canonists agreed that a “titulus coloratus” (an apparent title to an office) was required for the suppletory principle to be applicable. Although the 1917 CIC doesn’t explicitly require a “colored title,” it is still held by notable Fr. Charles Augustine.[22] Granted, the more common opinion now is that it isn’t strictly required. But the difficulty still remains of how sedevacantists plan on objectively establishing with probability that their bishops have ordinary jurisdiction.
[1] Leo XIII, Satis Cognitum, 14.
[2] Francis Miaskiewicz, “Supplied Jurisdiction according to Canon 209: An Historical Synopsis and Commentary,” Canon Law Studies 122 (Washington: CUA, 1940), 114.
[3] Lib. I, tit. XXIX, n. 12. Quoted in Raymond Kearney, “Principles of Delegation,” Canon Law Studies 55 (Washington: CUA, 1929), 57. https://babel.hathitrust.org/cgi/pt?id=wu.89097198683&view=1up&seq=71&q1=Reiffenstuel
[4] ibid., 56.
[5] ibid., 121.
[6] Wernz-Vidal, Ius Canonicum, II, 165.
[7] De Meester, Compendium, I, n. 394.
[8] Chelodi, Jus de Personis, n. 131.
[9] Badii, Institutiones, n. 126.
[10] ibid., 53.
[11] Joachim Salaverri, Sacrae Theologiae Summa IB (On the Church of Christ), translated by Kenneth Baker S.J. (Keep the Faith, 2015), 175-176.
[12] Joachim Salaverri, Sacrae Theologiae Summa IB (On the Church of Christ), translated by Kenneth Baker S.J. (Keep the Faith, 2015), 133.
[13] ibid.
[14] The meaning of ordinary jurisdiction is proper to his office.
[15] The meaning of immediate is that no one can interfere.
[16] Pastor Aeternus, chapter 3, 9.
[17] Joachim Salaverri, Sacrae Theologiae Summa IB (On the Church of Christ), translated by Kenneth Baker S.J. (Keep the Faith, 2015), 180.
[18] William Humphrey S.J., Urbs et orbis: The pope as bishop and as pontiff (London: Thomas Baker, 1899), 16-18. https://babel.hathitrust.org/cgi/pt?id=hvd.ah4g4h
[19] Carlos Kloppenburg, Ecclesiology of Vatican II, translated by Matthew J. O’Connell (Chicago: Franciscan Herald Press, 1974), 172.
[20] William Humphrey S.J., Urbs et orbis: The pope as bishop and as pontiff (London: Thomas Baker, 1899), 24-26.
[21] Caspar Schieler, Theory and Practice of the Confessional, A Guide in the Administration of the Sacrament of Penance, Second Edition (New York: Benziger Brothers, 1905), 303.
[22] Charles Augustine, A Commentary on the New Code of Canon Law, Volume II (Third Edition) (St. Louis, Mo.: B. Herder Book Co., 1919), 190.
