Delegated and Ordinary Jurisdiction in the Old Code of Canon Law
In 1918, in the book “A Commentary and Summary of the New Code of Canon Law”, the author, Rev. Stanislaus Woywod wrote (references were to the old Code of Canon Law, no the 1983 Code of Canon Law):
- In the Catholic Church there is, by Divine institution, the power of jurisdiction or government. (1)
- By ordinary jurisdiction is meant the one that goes by right with the appointment to an office. Delegated jurisdiction is such that may be committed to a cleric by his superior. (Canon 197.)
- In law the term Ordinary, besides having reference to the Roman Pontiff, refers to the bishop, abbot or prelate nullius and their vicars general, administrator, vicar and prefect apostolic, in their respective territories, and, in case of vacancy in these offices, to those who by law or legitimate custom succeed them in office. (2)
- He who has ordinary jurisdiction can delegate it to another, either totally or in part, unless the law expressly restricts the power of delegation. (3)
- The ordinary power of jurisdiction and the jurisdiction delegated for the universality of cases is to be interpreted liberally; all other jurisdiction strictly. (4)
- The power of jurisdiction can be exercised directly over subjects only. (5)
- An act of jurisdiction in the external forum, whether ordinary or delegated, holds also for the internal forum. (6)
- The delegate who acts beyond his mandate, either as to the matters or the persons over which he received power, acts invalidly. The delegate, however, is not to be considered to have exceeded the limits of his delegation if only the manner in which he transacted the affair is contrary to the wishes of the one who delegated him, unless the way how to proceed was prescribed as a condition of the delegation. (Canon 203.)
- If a person applies to a higher superior, passing the inferior, the so-called voluntary jurisdiction of the inferior, i. e. such as is exercised outside judicial proceedings, is not thereby suspended, whether he has ordinary or delegated power. (7)
- If several individuals have received delegated power concerning the same affair and doubt arises whether the delegation was given in solidum, or collegialiter, it is to be considered given in solidum in matters that do not require judicial proceedings, as collegialiter in matters of judicial proceedings. (8)
- If several persons have been delegated for the same affair but at different times, the one first delegated in order of time must attend to the affair unless the later delegation explicitly revoked the former. (Canon 206.)
- The delegated jurisdiction ceases in the following ways: when the mandate has been complied with; when the time has expired or the number of cases is exhausted; when the motive for which delegation was given has ceased; by recall of the delegation made known to the one delegated by the superior; by renunciation of the delegate and acceptance of the same by the superior; but delegated jurisdiction does not cease by the passing out of office of the one delegating, except in the case mentioned in Canon 61. Cf. No. 46. (9)
- As stated in Canon 183, 2, the ordinary jurisdiction does not cease on account of the death, etc., of the one conceding the office. When the office is lost, the ordinary jurisdiction attached to it is likewise lost. The ordinary jurisdiction is suspended in the case of legitimate appeal, unless the appeal is only in devolutivo. (Canon 208.) Exceptions to this Canon are found in Canons 2264 and 2284.
- The Church supplies jurisdiction both for the external and the internal forum in common error, and in a positive and probable doubt of fact as well as of law. (Canon 209.) (10)
- The power of orders which has been attached to an office by the legitimate ecclesiastical superior or been committed to a person by him, cannot be delegated to others, unless the law or the indult explicitly allows delegation. (Canon 210.)
- This is twofold, that of the external forum and that of conscience or the internal forum, which latter is subdivided into sacramental and extra-sacramental jurisdiction. (Canon 196.)
- In exempt clerical Religious Orders the major superiors come also under the name of Ordinaries. By the term ordinarius loci or locorum are meant all person enumerated in this Canon except religious superiors. (Canon 198.)
- Jurisdiction delegated by the Holy See can be subdelegated, either for one act or also habitually, unless the person was delegated for reason of personal aptitude (industria personae}, or subdelegation was forbidden. Jurisdiction delegated for a universality of cases by an Ordinary inferior to the Roman Pontiff can be subdelegated in individual cases. In all other delegations the delegated jurisdiction cannot be subdelegated except the power to
subdelegate has been expressly granted. Acts that do not import jurisdiction can be subdelegated by delegated judges even though subdelegation was not expressly conceded.
No subdelegated jurisdiction can be further subdelegated, unless this power has been explicitly granted. (Canon 199.)
- To whom, however, jurisdiction has been delegated, to him it is understood all such power has been given as is necessary to make his jurisdiction effective. He who claims to possess delegated jurisdiction has the burden of proving his delegation. (Canon 200.)
- The judicial power, both ordinary and delegated, cannot be exercised for one’s own comfort nor outside the proper territory. For exceptions Canons 401, 1; 881, 2; and 1637 are to be considered. The non-judicial or so-called voluntary jurisdiction can be exercised even in one’s own favor, and made use of even outside one’s territory, and in favor of a subject who is outside the territory, unless the nature of the case or the positive rules of law forbid such use of jurisdiction. According to this rule a bishop can give various faculties to one of his priests even though the bishop is outside his diocese, and he can give them to his priests even though they be absent from the diocese. Faculties, unless restricted by law, or
by the one conceding them, can be used also outside the diocese of the bishop who granted them. The faculties granted to their priests by bishops in virtue of the five or ten years’ faculties they formerly received from the Holy See were, as a rule, granted to priests only as long as they worked in the diocese. Whether certain absolutions from censures and other faculties could be exercised by the priests also while they were for a time outside their own diocese depended on the wording of the faculties. Many of the papal faculties were granted even to the bishops with the restriction that they could not make use of them outside the limits of their diocese. (Canon 201.) Cf. No. 900 on the revocation of these faculties.
- The act of one having jurisdiction for the internal forum only does not hold in the external
forum. Jurisdiction given for the internal forum can be exercised also out of confession, unless the faculty is restricted to the sacramental forum. If the wording of the faculty does not mention the forum, it is considered as given for both the internal and external forum, unless the nature of the faculty indicates the contrary. (Canon 202.)
- He shall, however, not interfere when the matter has been brought to the higher superior except for grave and urgent reasons, in which case he shall immediately notify the superior.
- If several persons are delegated in solidum, he who first makes use of the power in the case excludes the others so that they no longer have power, unless the first is afterwards impeded, or does not wish to continue to act in the affair. If several persons are delegated collegialiter, all must act together in the case in order that their action may be valid, unless in the faculty other provisions are made. (Canon 205.)
- Jurisdiction granted for the internal forum is still validly exercised if through inadvertence the priest has not noticed that the time for his faculties has expired or that he had used up the number of cases for which he had faculties. When several persons are delegated collegialiter, all lose their jurisdiction by the fact that one is absent, dies, refuses to act, etc., unless the contrary is stated in the document of delegation. (Canon 207.)
- The former teaching of authors concerning supplied jurisdiction, especially as to the titulus coloratus, etc., must be corrected to agree with this Canon.
- Code of Canon Law
- Tribunals of the Roman Curia
- Canon Law
- Civil Jurisdiction
- Exclusive Jurisdiction
- Advisory Jurisdiction
- Ordinary Jurisdiction
- Forum Non Conveniens