Supplied Jurisdiction: the Bishop and the Axiom
Bishop Tissier de Mallerais and the Axiom “The Church Supplies”
“The Church supplies” – in Latin, “Ecclesia supplet” – is a well known axiom of Canon Law, enshrined in Canon 209 of the 1917 Code. It is not unusual for traditional clergy to invoke this axiom to justify some aspects of their ministry. It is an open secret that it is sometimes misapplied – already in 1940 a canonist complained that this canon was wrongly regarded as “galloping through the Code nullifying the effects of all invalidating legislation”. Yet in the thought of Bishop Tissier de Mallerais, of the Society of Saint Pius X, the scope of this axiom seems to have expanded far beyond the wildest dreams of even its most generous interpreters in the 1940s. It is definitely worth a closer look.
It was as a seminarian that the young Monsieur Tissier first encountered the axiom. Like all student-priests of the SSPX, he learnt at Ecône that jurisdiction is needed, in addition to valid orders, for a priest to give valid absolution, but that this jurisdiction is supplied by the Church in cases of necessity. Later he saw this principle extended to cover not only absolutions but many other acts which normally require special faculties for their validity, including, for instance, enrolment in scapulars. And, like other priests of the Society, he received from Archbishop Lefebvre in 1980 a series of special powers, including the power to confer confirmation, commute vows, grant indulgences and dispense from marriage impediments. These powers, normally requiring a papal indult for their validity, were also justified by the tag “Ecclesia supplet” in the Society’s official summary of extraordinary powers (Ordonnances concernant les Pouvoirs et Facultés, 1st May 1980).
In 1988, the axiom acquired a special significance for Fr. Tissier, together with Richard Williamson, Alfonso de Galaretta and Bernard Fellay, for they were selected to be consecrated bishops.
“Do you have the apostolic mandate?” is the question asked at the beginning of the rite of episcopal consecration. In other words, has the Holy See designated this candidate to become a bishop?
Before consecrating his four selected men, Archbishop Lefebvre respected the text of the Pontifical, enquiring: “Habetis mandatum apostolicum?” If the “senior assistant” had told the frank truth, the answer would have run: “No. We have no mandate from the Apostolic See to consecrate these men. In fact the man we recognise as pope has forbidden us to do anything of the sort. If we do it in his despite, he will pronounce a declaratory sentence of excommunication against us and in doing so will be applying the straightforward law of the Church. However, we judge that we should take no notice of him and should consecrate them anyway, for a grave need exists and his refusal to give us the apostolic mandate is harmful to the Church.”
But the answer given was in fact very different: a triumphantly mendacious “We have it!” And upon the instruction to read the mandate, the reply given was not the text of any mandate (real or imaginary), from any pope (real or imaginary), but rather a vague theological argument claiming that the Church’s order to transmit the faith to all men contained an implicit order to consecrate the candidates, given that “the authorities of the Roman Church are animated by the spirit of modernism” (an allegation not usually found in approved Catholic liturgical texts, though something similar is asserted in the Anglican Book of Common Prayer). Some years later a lengthy attempt to justify these consecrations was published in the Italian periodical Si Si No No which summarised the argument as follows: “If, in a case like the consecration of these four bishops, the earthly ruler refuses to authorize an act required by the public and general necessity and totally in accordance with the Church of All Time, it is lawful to maintain that the Church supplies jurisdiction.”
“The Church supplies” had now supplied Bernard Tissier de Mallerais with a good deal. The power to confess, to witness marriages, to confirm, to dispense, to absolve from reserved censures, to grant indulgences, to enrol, to bless…and now an “apostolic mandate” to function as a bishop. But more was to come, peculiar to himself.
In 1991, a few months before his death, Archbishop Lefebvre conferred with Society Superior Fr. Schmidberger about establishing at the heart of the SSPX a “canonical commission” to handle difficult marriage cases. In addition to streamlining the Society’s hitherto chaotic process of authorising itself to dispense from impediments and absolve from censures, the new commission was to have the power of issuing decrees of nullity, enabling traditional Catholics who appealed to it to re-marry after a previous apparent marriage. Once again, the power at issue belongs properly to the Holy See and those it has delegated and no one else could validly exercise such a power. Of course John-Paul II gave no such authority to the SSPX commission, for he possessed his own annulment-mills whose high turnover rate showed them to be in no need of assistance or competition. But Archbishop Lefebvre declared that “authorities of supply” must be established (letter to Fr Schmidberger, 15th January 1991) and none other than Bishop Bernard Tissier de Mallerais was named president of the commission.
In this capacity, he was understandably called on at times to explain the source of the authority whereby he purported to exercise all the powers delegated by the pope to diocesan bishops, and others that not even Ordinaries receive. He made no attempt to deny the nature of the substitution that was taking place: “It is true that our sentences…replace the sentences of the Roman Rota which judges in the name of the pope.” But “the Church gives them jurisdiction by supply, on a case-by-case basis… Our jurisdiction in these cases…is supplied jurisdiction.” (Talk given by Bishop Bernard Tissier de Mallerais at Ecône, 24th August 1998)
The Infallible Teacher
It should not be thought that Bishop Tissier de Mallerais gave no serious thought to these matters. Of the four bishops selected by Archbishop Lefebvre he is certainly the most competent theologian. (The late Bill Morgan said that Archbishop Lefebvre had consecrated a philosopher, a mystic, a theologian and a bursar: Tissier was the theologian, and the bursar, predictably, is current captain of the ship.) Tissier’s status as head of the SSPX Canonical Commission made him in a sense the most richly-endowed beneficiary of supplied jurisdiction in the world, and it was inevitable that an intelligent and sincere theologian should wish to justify, to himself and to others, the situation in which he found himself. His view that the Church gave jurisdiction as required for any serious need was already well-established, but what exactly determined the fact that this or that power was supplied to this or that priest or bishop of the Society? In a public talk at Paris on 10th March 1991 (two weeks before the death of Archbishop Lefebvre) he informed the gathered faithful that it was they themselves, by requesting the Society to furnish them acts that normally require authority, who cause the jurisdiction to be supplied. And thus he was able to make the leap to jurisdiction that, though supplied, was permanent, and attained even the doctrinal sphere, claiming that the Society’s bishops constituted a true hierarchy with power not only to administer the sacraments but also to teach with authority (Juridiction de Suppléance et Sens Hiérarchique, allocution de Mgr Tissier de Mallerais) . Taking his lead from Bishop Tissier, Fr. Arnaud Sélégny soon found it possible to claim that the indefectibility of the teaching Church was now maintained exclusively by the bishops consecrated by Archbishop Lefebvre in 1988 who thereby constituted that which the Church can never lack: “a magisterium that preaches infallibly” (Le Sel de la Terre, no. 1).
The Bishop Lazo Problem
It is always tempting to load new burdens on a strong-backed mule. “Ecclesia supplet” had proved so useful and reliable in so many cases, it is perhaps not surprising to see that in the mind of Bishop Tissier de Mallerais, its elasticity was not yet by any means overstretched. Ten years after his consecration he was to turn to it, as to an old friend, for the solution to a problem of conscience.
In 1998 Fr Pierre-Marie of the Avrillé traditional Dominicans sent Bishop Tissier de Mallerais a copy of the late Dr Rama Coomaraswamy’s work questioning the validity of the new (1968) rite of consecrating bishops. Bishop Tissier replied, “Having read it rapidly, I conclude that there is a doubt about the validity of episcopal consecration conferred according to the Paul VI rite. The “spiritum principalem” of the form introduced by Paul VI is not sufficiently clear in itself and the accessory rites do not determine the signification in a Catholic sense.” (The letter was confidential but has since been made public.)
So far, so good. But the conclusion raised an evident difficulty in that the SSPX was at the time using a Filipino bishop, Salvador Lazo, (recently reconverted to tradition and since deceased) to confer confirmations, and Bishop Lazo had been consecrated in the doubtful new rite. Bishop Tissier addressed this problem head-on: “Regarding Mgr Lazo,” he added to Fr Pierre-Marie, “it would be difficult to explain these things to him; the only solution is not to ask him to confirm or ordain… Mgr Lazo has already done quite a lot of confirmations for us. This is of course valid as the Church supplies (Canon 209), as a simple priest can confirm validly with jurisdiction.” (Emphasis added.)
Let us spell out in full the thinking behind this claim. The ordinary minister of confirmation is the bishop alone. A simple priest cannot validly give confirmation except by papal indult. Bishop Tissier recognises that Bishop Lazo’s consecration is of doubtful validity, in which case he may well in reality be no more than a simple priest. Hence he discreetly orders that Bishop Lazo should no longer be called on to confirm for the SSPX. However he adverts to the problem that Lazo has already done “quite a lot of confirmations” which, if he is not a bishop, would seem at first sight to be invalid. But then he reassuringly invokes his favourite axiom: “Ecclesia supplet”. The Church can give a simple priest the power to confirm. In this case the faithful were in common error, believing Lazo to be a valid bishop, and in common error, the Church supplies jurisdiction that is otherwise deficient. Hence Lazo received the power to confirm validly even if not a bishop. The sigh of relief is almost audible. Perhaps Bishop Lazo could have continued confirming after all, especially since from 1980 to 1988 all SSPX district superiors and seminary directors had been authorised by Archbishop Lefebvre (supplied jurisdiction again) to confirm in the absence of a bishop, and they were not even doubtfully consecrated. Finally, in 2005, under strong pressure from other SSPX sources, Fr. Pierre-Marie announced that the new rite of consecration was valid after all and it may be that Bishop Tissier now shares this conveniently discovered truth.
The Stephen Heiner Interview
It will be agreed that supplied jurisdiction had loomed large in the life of Bishop Tissier. But more was still to come. Is it possible to become hooked on a canonical axiom like an addict on his hootch? If so, one might suspect the bishop of having become so far reliant upon supplied jurisdiction as to have no other instinct than to reach for a large dose whenever he finds reality uncomfortable. It is a disagreeable suspicion to entertain, but it is surely unavoidable on contemplating the interview between Remnant correspondent Stephen Heiner and Bishop Tissier de Mallerais which took place in California on April 21 2006.
In this fascinating interview we see Bishop Tissier take the initiative from an over-cautious interviewer in order to insist publicly that Josef Ratzinger has “professed heresies” and “has never retracted his errors”; that he “published a book full of heresies” especially “the negation of the dogma of the Redemption”; that these errors are not merely “suspicious…or savouring of heresy” but “completely clear”; that he has also taught “many other heresies” and indeed “has put up doubts regarding the divinity of Christ, regarding the dogma of the Incarnation”. Moreover, he “interpret[s] existing doctrines in new lights…According to the new philosophy, the idealist philosophy of Kant.”
It is impossible not to applaud this frank assessment, and impossible not to join the interviewer in raising the obvious question: “These are very strong words, my lord, but yet, the Society is not sedevacantist…”
At this, the purple-clad interviewee moves abruptly into reverse gear with an almost hysterical “No, no, no, no. He is the Pope.” Then, sensing that some semblance of argument is needed to back up the bluster, he blurts out:
“Ecclesia supplet. The Church supplies. It is even in the Code of Canon Law: ‘in case of doubt, the Church supplies the executive power.’ He is the Pope. Ecclesia supplet.”
Ah yes, a friend in need is a friend indeed.
But what on earth does the bishop mean? If he had argued that Ratzinger’s heresies were perhaps unconscious and not pertinacious, we should at least have understood him. If he had opted for the grudgingly tolerated doctrine of Cajetan and Suarez that a known heretic can still be pope, we should salute an opponent showing all the more courage in selecting such a rusty weapon. If he had diverted the subject onto the difficulties allegedly entailed by the sedevacantist thesis, we should have recognised the evasive debating technique. If he had appealed to da Silveira’s thesis whereby a heretical pope’s jurisdiction is “maintained” (not supplied) until the heresy becomes sufficiently notorious, whe should have been able to discuss the question of notoriety. But none of these applies. To all appearances Bishop Tissier is acknowledging that Ratzinger’s doctrinal aberrations are as such incompatible with the detention of papal jurisdiction, but then appealing to “Ecclesia supplet” to make him pope despite his ineligibility. It is not just case-by-case jurisdiction supplied to make certain acts valid, but the supply of the entire “executive power” of the papacy (the quotation, revealingly, is from the new 1983 Code of Canon Law, which the Society in principle rejects). If the Church is supplying Josef Ratzinger in an extraordinary manner with the papal executive power, this can only mean that he does not possess that power in the normal way that real popes possess it – through the valid election of an eligible subject.
Back to Reality
Thank you, Bishop Tissier de Mallerais, for your admission that Josef Ratzinger is a notorious heresy-monger whose diabolical false philosophy perverts even those dogmas he pretends still to believe. And thank you for admitting that he is not in ordinary possession of the papacy and must therefore receive his “executive power” by virtue of an extraordinary supply. Do not think us ungrateful, Bishop, if we now very briefly turn a critical spotlight on your trusty axiom: “the Church supplies”: a principle that has such importance for you is surely worthy of examination.
To understand this axiom and its functioning, there is no entirely adequate substitute for the serious study of the most detailed canonical commentators. But a respectable shortcut exists in the shape of the scholarly 321 page study Supplied Jurisdiction According to Canon 209 by the Rev. F. S. Miaskiewicz J.C.D., published in 1940 by the Catholic University of America Press: it became a reference for subsequent canonists. Here are a few points that emerge from it, often in its own words:
The principle “Ecclesia supplet” means that the Church supplies jurisdiction (some share in the authority with which the Church is divinely endowed) in certain foreseen cases when it would otherwise be absent.
It does not supply absent sacramental power, valid possession of an office, hierarchical status, or theological knowledge. Nor indeed does it supply absent hair follicles or bank bills.
It is not the same thing as epikeia, the principle by which it is not sinful to disobey a human law in proportionately grave, exceptional cases. Epikeia grants no jurisdiction or authority and can never make the difference between validity and invalidity.
All jurisdiction comes directly or indirectly from the Apostolic See, unique reservoir of all the treasury of divine authority committed by Christ to His Church.
In no circumstances whatever can any Catholic priest possess jurisdiction which the pope formally refuses him, whether or not the pope’s refusal is founded on good motives, because the pope necessarily has immediate, ordinary and supreme power over all the faithful.
Supplied jurisdiction is supplied precisely because a pope has declared that any priest finding himself in certain stated circumstances is to enjoy a certain stated power of jurisdiction.
There is no principle known to Canon Law or theology according to which any jurisdiction that would be very useful for some or many souls is necessarily supplied. On the contrary, if this supply is not mentioned in any canonical text, it belongs to the realm of make-believe. For instance, the Holy See can grant to a simple priest the power to confect the Oil of the Sick necessary for Extreme Unction, but it has been held that no matter how great the necessity (and valid Extreme Unction can be crucial to salvation when a dying sinner falls unconscious with attrition but without manifesting the desire to confess) a simple priest cannot validly confect the Oil unless he has received the exceptional power from the Holy See: a very useful piece of jurisdiction is thus not supplied.
The 1917 Code of Canon Law supplies jurisdiction for the absolution of those in danger of death, for marriages when the parish priest and bishop are unavailable, and in cases of common error and doubt of law. It also in certain cases (for instance maritime voyages) supplies an extension of jurisdictional powers already possessed).
The source often appealed to for supplied jurisdiction in our days is Canon 209 which relates to common error and to doubt of law or fact.
The common error must be about the existence of a particular office or about the validity of the possession of jurisdiction by some particular person or persons. It does not cover the case of one who is erroneously believed to be a bishop when he is only a priest!
The doubt of law or fact must be “positive and probable” – which “postulates more than subjective certitude. It demands in addition some objective evidence to support and to justify the subjective belief in the existence of the jurisdictional power about which there is question.”
Supplied jurisdiction always functions “per modum actus”, i.e. it validates one-by-one the individual jurisdictional acts of a person who does not really possess the office or other status needed for these acts to be valid. It does this when the person is widely, though wrongly, believed to hold the office, or when it is doubtful whether he holds it or not, but it does not give him the office — it validates the jurisdictional acts, not the status of the person positing them. In other words jurisdiction is supplied precisely because the person apparently exercising it has no legitimate status to do so. If the office itself were supplied, the individual acts would have no need of supplied jurisdiction for they would already be valid. Hence to state that a non-pope’s jurisdictional acts are validated by supplied jurisdiction is intelligible and to what extent it may apply to publicly heretical claimants is a question worthy of serious debate. But to say that an otherwise ineligible person has actually acquired the papal office by virtue of supplied jurisdiction is hardly even an intelligible statement. If a car won’t start you might get it going by using jump-leads (my analogy for supplied jurisdiction), but you will achieve nothing by attaching the jump-leads to the mechanic, except to let everyone know that you think he is incompetent.
In any event the statement that supplied jurisdiction applies to acts of “executive power” appears in the 1983 Code, but was doubtful under pre-Vatican II law. An attempt to establish the papal status of the post-conciliar heretical “popes” by appealing to laws they have themselves passed clearly involves a logical vicious circle. It is not possible to lift oneself off the ground by tugging on one’s own shoelaces.
Layfolk sometimes raise the idea that Our Lord supplies jurisdiction directly in our days, bypassing the need for Church authority. Concerning this idea, Pope Benedict XIV (1675-1758) quotes Cajetan: “Human actions are of two kinds, one of which relates to public duties, and especially ecclesiastical duties, such as preaching, celebrating Mass, pronouncing judicial decisions and the like; with respect to these, the question is settled in Canon Law (Cap. cum ex injuncto, cit. de haereticis) where it is said that “no credit is to be publicly given to him who says he has invisibly received a mission from God unless he confirms it by a miracle or a special testimony of Holy Scripture.” (Pope Benedict XIV, Beatification and Canonization, “On Heroic Virtue”, Chapter viii)
It is not the intention of this article to examine in detail which acts of the SSPX and of other traditional clergy are valid or lawful. Its scope has been to show that the principle “the Church supplies” has been invoked far too casually and without sufficient study and in some cases quite wrongly. A part at least of SSPX ministry, jurisprudence and theology is in fact built upon sand.
Still less is it our intention to apportion blame for this situation, or to encourage any feather-preening on the part of those who have not been guilty of these errors in particular. But it is surely not unreasonable to ask for the situation to be rectified. We are no longer in the chaos of the sudden and unforeseen ecclesiastical shipwreck of the 1960s and 70s. Any serious apostolate in our days must be based on a sound theological evaluation of the nature of the crisis and must not pretend that when Church authorities are not authorising priests to function they can nonetheless automatically function in all respects exactly as if they had received every authorisation available before the Council.
The Single Exception
The SSPX has claimed, on frequently insufficient grounds, almost every species of authority and jurisdiction that exist in the Church…except one. When it comes to forming the judgment that the Vatican II “popes” are not in fact legitimate occupants of the Holy See, the SSPX suddenly displays an unaccustomed tenderness of conscience, bordering surely upon scruples: they fear that they have no authority or jurisdiction to reach such a judgment. Is this not what is meant by straining at a gnat while swallowing a camel?
It is imperative that Bishop Tissier return to his theology books. If he studies Bellarmine, Billot, Wernz, the Dictionnaire de Théologie Catholique and the other well-known sources on the question of the heretical pope, he will see that no special power whatever is needed to detect fact. If he then studies in any theological textbook the extent of the infallibility of the Ordinary and Universal Magisterium, and the divine protection of the Church’s universal laws and liturgy, he will be re-assured in the conviction that it is theologically impossible for Benedict XVI to be Pope. He will realise that the present crisis of the Church cannot end until there is a true successor of Saint Peter, from whom undoubted jurisdiction can be transmitted to those whom he shall judge suitable to exercise it.
© John S. Daly
This article originally appeared in The Four Marks.