http://www.cmri.org/consecration-bishops-interregna2007.html

The Consecration of Bishops During Interregna
by Bishop Mark A. Pivarunas, CMRI

The purpose of this article is to present objective evidence to demonstrate the legitimacy of the consecration of traditional Catholic bishops during this time of an extended interregnum (vacancy of the Holy See) which has occurred since the spiritual devastation caused by the Second Vatican Council. The evidence presented will show the historical precedent for such episcopal consecrations, the distinction between divine law and ecclesiastical law in this realm, and the historical precedent of supplied jurisdiction granted to such bishops.
I. Historical Precedent

During the interregnum from the death of Pope Clement IV on November 29, 1268, to the election of Blessed Gregory X on September 1, 1271, twenty-one vacancies occurred in various dioceses. During this time bishops were consecrated without papal mandate to fill these vacancies because of the spiritual necessity of the faithful and the impossibility of having recourse to the Holy See.

According to the docuмent “Hierarchia Catholica Medii Aevi” by Fr. Conrad Eubel, O.F.M., S.T.D., printed in 1913, the following bishops were elected and consecrated during the period of the above-mentioned vacancy.

Diocese of Avranches, France
Radulfus de Thieville
Consecrated November 1269

Diocese of Aleria, Corsica
Nicolaus Forteguerra
Consecrated in 1270

Diocese of Antivari, Greece
Caspar Adam O.P.
Consecrated in 1270

Diocese of Auxerre, France,
Erardus de Lesinnes
Consecrated in January 1271

Diocese of Chalons sur Saorie, France
Potius de Sissey
Consecrated in 1269

Diocese of Cagli, Italy,
Jacobus
Consecrated September 8, 1270

Diocese of Le Mans, France,
Geoffridus d'Ass
Consecrated in 1270

Diocese of Cefalu, Sicily
Petrus Taurs (Pepers)
Consecrated in 1269

Diocese of Cervia, Italy
Theodoricus Borgognoni, O.P.
Consecrated in 1270

Diocese of Civita Castellana, Italy
Johannes Magnesi O.P.
Consecrated in 1270

Diocese of Evreux, France
Philippus de Chaourse
Consecrated in February 1270
   

Diocese of Forlimpopoli, Italy
Ravaldinus
Consecrated in 1270

Diocese of Lismore-Waterford, Ireland
Johannes de Rupe (Roche)
Consecrated in 1270

Diocese of Lucca, Italy
Paganellus
Consecrated in 1269

Diocese of St. Jean de Maurienne, France
Petrus de Gualis
Consecrated in 1270

Diocese of Meaux, France
Johannes de Garlande
Consecrated in 1269

Diocese of Metz, Germany
Laurientius von Leisteberg
Consecrated in 1269

Diocese of Sion, Switzerland
Raudulfus de Valpelline
Consecrated in June, 1271

Diocese of Tolouse, France
Bertandus de Lisle Jourdain
Consecrated October 20, 1270

Diocese of Troyes, France
Johannes de Nanteuil
Consecrated June of 1269

Diocese of Abril, Spain
Petrus Urg
Consecrated November 3, 1269

Commentary: Some misinformed Catholics have claimed “no pope, no bishops” and have thus rejected those traditional Catholic bishops who have been consecrated during the present crisis in the Church which has followed the Second Vatican Council. During the interregnum between Pope Clement IV and Blessed Gregory X which lasted under three years, bishops were consecrated without a papal mandate. Therefore, a fortiori (from the stronger argument) during this extended interregnum of today, the longest in the history of the Church, bishops can be consecrated for the spiritual needs of the faithful and for the common good of the Catholic Church.
II. Distinction between Divine Law and Ecclesiastical Law

In the American Catholic Quarterly Review, January 1896, on Episcopal Elections, an important distinction is made between divine law and ecclesiastical law in regard to the election and consecration of bishops:

“In the Catholic Church there are several points of discipline which are fixed and unalterable, because they are of divine right, and of Christ's own institution. There are others, which vary according to the times, because the Divine Author of the Church left it to herself to take into account the ever changing vicissitudes of human society, the progress of civilization, and the needs and requirements of succeeding ages. To a hierarchy strongly organized and deeply imbued with His spirit and His teaching, He entrusted the delicate task of adapting the Church's discipline to the wants of the moment.

“No more striking example of what we assert can be found than in the history of the episcopacy. A sacred order, ranking higher than the priesthood, with powers of jurisdiction and with authority partially sovereign — although controlled by a central administration, which, in view of the general good determines the extent of its action — the episcopacy instituted by Jesus Christ, and ever remaining the same, has, however, been conferred in various ways in different ages of the Church. The reason of this changing discipline is to bring it more in touch with the spirit of the times and the needs of the faithful.”

In The Church of the Incarnate Word, written by Monsignor Charles Journet, Professor of the Major Seminary of Fribourg, in 1952, this distinction between divine and ecclesiastical laws is reiterated:

“The power of naming or instituting bishops belongs to the Roman Pontiff (Codex Juris Canonici, 329,2, and 332,1). But, remarks Cajetan in his De Romani Pontificis Institutione (cap. xiii, ad 6), we have to distinguish between the power of the Sovereign Pontiff (auctoritas) and the exercise of this power (executio), which has varied in mode down the centuries. Thus the ancient ecclesiastical discipline left to the Patriarchs of Alexandria or of Antioch the right to elect the bishops of their provinces. The elections of bishops effected during a vacancy of the Holy See and regarded as valid, are thus to be explained.”

“'No one,' says St. Leo the Great, 'can be held to be a bishop who has not been elected by the clergy nor asked for by the people' (Ibid., col. 2259). The Bishop of Rome did not directly intervene in the election; he was content to see it carried out properly.”

Commentary: The concept of invoking epikeia (a benign interpretation of law according to the mind of the legislator and not according to the strict letter of the law) enters into our consideration of the ecclesiastical law on the exercise of the papal power (executio) which has varied in mode throughout the centuries. The well-known axiom salus animarum, suprema lex -the salvation of souls is the supreme law, reminds us of the words of Pope Pius XII: “Canon law likewise is directed to the salvation of souls; the purpose of its regulations and laws is that men may live and die in the holiness given them by the grace of God” (address to clerics in Rome, 1939). The papal mandate was not always and everywhere required; in view of the long vacancy of the Apostolic See, the use of epikeia
III. Supplying of Jurisdiction to Bishops During the Great Western Schism

From 1378 until 1417 the Catholic Church suffered what is known as the Great Western Schism, during which there were two and later three claimants to the Papacy — one in Rome, one in Avignon, and one in Pisa. Even saints and theologians were divided on this issue of the identity of the true pope. Although the word “schism” is employed here, it's not quite accurate in the sense that there was no denial of papal authority; the doubt was only as to who the legitimate pope was.

In his De Ecclesia Christi (1946), the Jesuit theologian Fr. Timothy Zapelena, S.J., in the chapter on the Supreme Pontiff and Jurisdiction raised hypothetical objections to his thesis and answered each objection. One objection he proposed and answered was the supposed lack of jurisdiction in the Church during the Great Western Schism:

“But upon granting our thesis, there follow serious problems for the time of the Western Schism. Certainly a doubtful pope is no pope. However during the whole time of the schism the true pope was doubtful. Therefore, there was none; hence, he could not confer jurisdiction upon the bishops. It would follow, therefore, that bishops confirmed by a doubtful pope lacked true jurisdiction: the same may be said about priests who received jurisdiction (in the internal forum) from these bishops. But nevertheless the bishops gathered in the Council of Constance supposed that they had the power to convoke a council and repair the schism. Therefore:

“Response:
a) It will be permissible in the first place to turn back the argument upon the adversaries. The aforesaid difficulty presses them all in the same way as it does us: for all admit the bishops, to exercise actual jurisdiction, need either pontifical election or recognition. If a doubtful pope cannot confer jurisdiction neither can he truly confirm a bishop who is chosen or consecrated.

“b) Therefore, let the response be direct: according to those things which we said in thesis 11a, the true pope was the Roman one, that is, Urban VI and his successors. Therefore he was able to give jurisdiction even to the bishops of the other obediences (on account of the common error of the faithful together with the colored title). Even the election of Martin V seems to be explained by the faculty given to the Council by Gregory XII. For the rest, if you figure those three popes to be null, you ought to admit that jurisdiction is supplied (on account of color of title) not indeed by the Church, which lacks the supreme power, but by Christ Himself, who would confer jurisdiction on each of these antipopes, as much as was necessary.”

Commentary: Fr. Zapelena states that jurisdiction was supplied by the true pope to those bishops who mistakenly followed the wrong papal claimant. Furthermore, he also defends his thesis in the hypothetical supposition that if all three papal claimants were doubtful popes and therefore no popes at all, Christ Himself would have conferred jurisdiction as much as was necessary.

Why is this so? The Catholic Church is indefectible and must always remain the institution of salvation as established by Christ. The proof of this thesis can be demonstrated from the historical fact that with the election of Pope Martin V and the end of the schism, the validity and lawfulness Of the Sacraments administered by the bishops and priests of each of the three factions (during this Great Western Schism) were never questioned. The reason for this is that jurisdiction was supplied either by the true pope or in the event there was no pope, by Christ Himself.

If one were to raise the objection that Fr. Zapelena states that jurisdiction is only supplied “on account of the common error of the faithful together with the colored title,” and that there is no “color of title” with the consecration of traditional Catholic bishops today, the answer is found in Practical Commentary on the Code of Canon Law by Rev. Stanislaus Woywod, O.F.M.., LL.B. (November 1957):

“In the old Canon Law the great majority of Canonists and moralists did not admit that common error alone was sufficient to make the exercise of jurisdiction valid; they demanded in addition the 'titulus coloratus,' that is to say, some act on the part of the superior which is ordinarily sufficient to confer jurisdiction, but which, on account of some secret impediment was rendered invalid. THAT 'COLOR OF TITLE' IS NO LONGER REQUIRED, AND IN CASE OF COMMON ERROR, NO MATTER HOW CREATED, THE CHURCH SUPPLIES THE JURISDICTION FOR THE BENEFIT OF THE PEOPLE.”
IV. Conclusion

Some may claim that those who perform or receive episcopal consecrations during the present interregnum have incurred excommunications according to Pope Pius XII in his encyclical Ad Apostolicam Principis of June 29,1958. However, those who claim this fail to understand the very nature of law and the principles of Canon Law.

First of all, according to St. Thomas Aquinas, laws are ordinances of right reason made for the common good promulgated by one who has authority in society. A fundamental principle of law is that

“Law ceases automatically:

“1. if through changed conditions, it has become harmful, impossible or irrational;

“2. if its very purpose has ceased to be verified for the whole community” (Moral Theology, Ff. Henry Davis, 1958).

Pope Pius XII in his encyclical was addressing the situation in China in which the Communist government had established a schismatic Church to rival the Catholic Church. When there is a true Pope, no bishop may be consecrated without papal authorization, much less to establish a “hierarchy” for a schismatic Church.

Secondly, the 1917 Code of Canon Law asserts that penal laws are to be interpreted strictly, i.e., if the facts of the case are not exactly according to the conditions required in the law, the penalty is not incurred (“in poenis, benignior interpretatio”). When we read the exact wording of Pope Pius XII's encyclical, we find the conditions:

“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.”

There is certainly no parallel between the situation in China in the 1950's and that of traditional Catholics today.

In conclusion, the history of the Catholic Church demonstrates clearly that episcopal consecration during an extended interregnum is not only permissible but also necessary for the spiritual welfare of the Catholic faithful and the common good of the Church (to insure valid Holy Orders).