Chapter I: Notions Concerning Clerics, Concerning Hierarchy, Concerning Incardination

I. Who are Clerics?. "Those who have been assigned to the divine ministries by at least first tonsure are called clerics" (c. 108, §1).

The Greek word ho kleros designates a lot, that which falls to someone, an inheritance. Wherefore 1 Pet. 5, 3, med' hos katakyrieuontes ton kleron, bears this verbal translation: "nor as dominating your portions," which portions were a certain part of the Church. Thence perhaps, and because of the Vulgate version, "nor as dominating in the clerics," already from the first century the word clerics began to name those who were peculiarly devoted to the Church or to divine worship. Sometimes, as in the Council of Laodicea of the middle of the fourth century, can. 30, they distinguish hieratikous, or those occupied in sacred things (bishops, presbyters, and deacons), and klerikous, inferior clerics. Likewise in the so-called Apostolic Canons there is found katalogos hieratikos and katalogos ton klerikon. Thus the less ancient distinction of major and minor orders is prepared.

But the explanation of St. Jerome prevailed ¹, by which they are called clerics either because they are of the lot of the Lord, or because the Lord is the lot, that is, the portion of clerics, rather than the explanation of St. Augustine: "because Matthias was chosen by lot" ².

¹ Ep. 52, to Nepotianus, P. L. 22, 531.

² Enarr. in Ps. 67, 10, P. L. 36, 824.

— Since they are of unequal grade, there is in the Church a Hierarchy. Hierarchy, etymologically and in the abstract, is the same as sacred power. In the concrete it means a series of persons who participate sacred power in some grade.

2. The hierarchy is twofold: of order and of jurisdiction; each has some grades of divine institution, others of ecclesiastical institution.

"By divine institution, the sacred hierarchy, by reason of order, consists of bishops, presbyters, and ministers; by reason of jurisdiction, of the supreme pontificate and the subordinate episcopate; but from the institution of the Church other grades also have acceded" (c. 108, §3).

In the divinely constituted hierarchy of Order, under the name of ministers there come at least deacons; whether also subdeacons and clerics of minor orders, some affirm, others deny, according to their opinions concerning the sacrament of order.

You will observe that, in the hierarchy of jurisdiction, only the Supreme Pontiff and bishops are placed in grades of divine institution; but the Church, from the supreme authority of the Pontiff, has added others: abbots and prelates nullius, Superiors of exempt clerical religions. Pastors are not named, because only jurisdiction of the external forum, which the pastor lacks, gives a place in the hierarchy of jurisdiction.

— Some orders are major or sacred: such, in the Latin Church, are the presbyterate, together with the episcopate, the diaconate, and the subdiaconate; others are minor: the acolythate, exorcistate, lectorate, and ostiariate (c. 949).

The subdiaconate, with which already in the fifth and sixth centuries in the Western Church the law of celibacy began to be joined, was gradually numbered among the sacred and major orders; this discipline was firm at the close of the twelfth century and the beginning of the thirteenth, from which time subdeacons could be enrolled among bishops. Cf. Peter Cantor, De verbo mirifico, c. 57, about the year 1197, and c. 9, X, I, 14, and 7, X, I, 18; Wernz, Ius Decretalium, II, 20, note 54.

1. Jurisdiction, or the public power of ruling subjects, is one kind ordinary, which by the law itself is annexed to an office; another, delegated, which is committed to a person. Ordinary jurisdiction again can be either proper or vicarious (c. 197): the former is possessed by one's own title and in one's own name; the latter is had by him who supplies the place of another, whether absent, impeded, or also detained by too many affairs. Think of a bishop and vicar general, the Supreme Pontiff and an Apostolic Vicar. Concerning the notion, cf. Wernz, l. c., n. 3.

Ordinary jurisdiction can of itself be delegated to another; delegated jurisdiction cannot, unless this be expressly conceded. Nevertheless there can be subdelegated, unless something else is established, power delegated by the Holy See and power delegated for a universality of causes or business (c. 199). A universality of one genus, as for example of marriages, suffices.

"No subdelegated power can be subdelegated again, unless this has been expressly conceded" (c. 199, §5). This concession must be made by the delegating one, or by the one having ordinary power.

2. Jurisdiction is also divided into jurisdiction of the external forum and jurisdiction of the internal forum. The former is the power of the proper forum of a perfect society, by which subjects are efficaciously directed toward the common end of the society by laws, or precepts, judgments, and sanctions; the latter, which is not had except in the Church, reaches to the very forum of God, not indeed for making laws, but, principally, for loosing obligations which, by reason of divine law, on account of their own acts, whether good, as vows, or evil, as sins, are contracted by the faithful. I say principally for loosing, because, in that forum, the obligations themselves, of returning to the confessor, of doing penance, are imposed from the intention of loosing the bonds of sin or of penalties. The former jurisdiction is immediately for the common good; the latter, immediately for the good of a private person. This latter is instrumental; it becomes known to us not at all from the nature of society, but from Scripture and the usage of the Church. This more explicit notion of the internal forum, which we borrow from C. Billot, De Ecclesia Christi, thesis XI, manifests to us why that power is of a public character, as reaching to the Forum of God; in what way it is in the Church; and by what acts it is contained, so that we can easily discern acts of each forum.

The power of the internal forum is both of the sacramental forum, whose use therefore supposes at least sacramental accusation, and of the extra-sacramental forum, which also outside the tribunal of Penance has valid and licit use. Cf. cc. 196, 202.

Acts of jurisdiction of the external forum have force also for the internal forum, but not conversely (c. 202).

Yet he who in the internal forum has been absolved from a censure can also, scandal having been removed, conduct himself in acts of the external forum as absolved; with the right of the Superior reserved of urging the censure in the external forum, unless the concession of absolution is proved or at least legitimately presumed in this external forum (c. 2251).

What likewise a dispensation effects in the internal forum is explained in its own place.

3. Finally, judicial power cannot of itself be exercised for one's own advantage or outside the territory; but voluntary or non-judicial jurisdiction can, such as jurisdiction of dispensing (c. 201).

II. Who is a Prelate, an Ordinary?. Ordinary jurisdiction in the external forum gives the true quality of Prelate to a cleric, whether secular or religious; although the title of Prelate is also conferred by the Holy See by reason of honor (c. 110).

Yet not every Prelate is an Ordinary. For by this name there come, "besides the Roman Pontiff, each for his own territory, the residential bishop, abbot or prelate nullius and their vicar general, administrator, Apostolic vicar and prefect, and likewise those who, when the aforesaid are lacking, in the interim succeed in governance by prescription of law or by approved Constitutions; but for their own subjects, major Superiors in exempt clerical religions" (c. 198, §1).

The same, except religious Superiors as such, are also called Ordinaries of the place or of places (c. 198, §2).

III. Incardination. Vagrant clerics are in no way admitted. Every cleric must be ascribed either to some diocese or to some religion (c. 111).

Wherefore in canons 648 and 669, §2, provision is made that a cleric dismissed from religion, if he is constituted in minor orders, is by that very fact reduced to the lay state.

Formerly, ascription was made to individual churches, and clerics who were ascribed to no church were distinguished from clerics who, ascribed to the order or catalogue of some church, were nourished by its revenues; these clerics were called canons. Cf. Wernz, Ius Decretalium, II, 767, note 4.

Ascription to a diocese, or incardination, is made by reception of first tonsure; once this has been received, by formal excardination and incardination (cc. 111-117).

Ascription to a religion is made by profession; and indeed fully by perpetual profession, which effects excardination (cc. 115, 585).

By reception of first tonsure a cleric is incardinated in that diocese for whose service he was promoted. But it is not on that account lawful for a bishop, by conferring first tonsure, to enroll any secular at all in his own diocese. For from c. 956 it is necessary that a secular have domicile together with origin, or at least domicile. The notion of domicile was given in I, 235. But someone has origin where, when he was born, the father or, if he was illegitimate, the mother possessed domicile or, domicile being lacking, quasi-domicile. Moreover, for a bishop legitimately to confer tonsure, as proper bishop, upon a secular who in his diocese has only domicile, it is necessary that the one to be promoted confirm by oath his intention of remaining perpetually in the diocese (c. 956).

Furthermore, letters of excardination and incardination must be perpetual and absolute, not conditioned.

Yet any bishop can receive, not purely and simply but for experiment for a three-year period, a dismissed religious who has lost his diocese (c. 641).

I. Clerics are all who have received first tonsure. On account of their unequal grade they compose the Hierarchy, which, taken concretely, means the series of persons who participate sacred power in some grade, while abstractly it signifies sacred power itself.

II. A twofold hierarchy is distinguished: of order and of jurisdiction. Orders are some major and sacred, others minor; jurisdiction, public power of ruling, is distinguished as ordinary, which, whether proper or vicarious, is annexed by the law itself to an office, and delegated, which is committed to a person.

Ordinary jurisdiction can of itself be delegated; delegated jurisdiction cannot of itself be subdelegated, unless it is for a universality of causes, or proceeds from the Holy See. Subdelegated jurisdiction, without the express concession of the one having ordinary power, cannot be subdelegated again.

Jurisdiction is also distinguished as of the external forum, immediately for the good of the Church; and of the internal forum, to be exercised immediately for the good of a private person, either in the sacrament of penance alone, sacramental jurisdiction, or also outside it.

Acts of the external forum have force also for the internal forum, but not conversely, with those things being preserved which are to be said concerning absolution from censures and various dispensations.

A Prelate is one who has ordinary jurisdiction in the external forum; an Ordinary, one who, in his own name or by vicarious reason, has episcopal or quasi-episcopal power: thus an Apostolic Prefect, a vicar general, and a major Superior of an exempt clerical religion. This latter, however, contrary to the others, is not an Ordinary of a place.

III. Every cleric must be ascribed to a diocese or to a religion. To a diocese, by first tonsure legitimately conferred; once this has been received, by letters of excardination and incardination, which must be perpetual and cannot be given conditionally. Yet a bishop can try for three years a religious who has lost his diocese through perpetual profession. Ascription to a religion is made by religious profession; and fully, by perpetual profession.