Editor’s note: in light of the recent news that the Holy Father, after deposing Bishop Strickland, now allegedly intends to move against Cardinal Burke (again), we present this study in conjunction with Fr. Murray’s recent analysis of the Strickland case.
Father Charles Murray has excellently analyzed the canonical side of Bp. Strickland’s removal. He has demonstrated that the guarantee of due process has been violated. Canon 196 and other related canons were masterfully explained. I myself published a different article that I wrote before having read Father Murray’s analysis. I saw the issue from a different angle. But I find that now it is expedient to combine the two perspectives.
The first point that I think must be highlighted is that canon 196, concerned with “privation from office,” is within a chapter of the Code referred to “Provision of ecclesiastical offices” in general. In addition to canon 196, one can read in the same chapter canons 192 and 193 concerning “removal” from office. According to canon 193, “A person cannot be removed from an office conferred for an indefinite period of time except for grave causes and according to the manner of proceeding defined by law.” When applying these canons to a bishop of a particular Church one must have in mind the particularities of the office.
A bishop of a particular church, according to the very Code of Canon Law, “by divine institution succeed to the place of the Apostles through the Holy Spirit who has been given to them” (canon 375 n. 1). Moreover, bishops receive the function of sanctifying, teaching and governing “through episcopal consecration itself” (Canon 375, n. 2). This means that, although according to current canon (human) law, the bishops of the Latin Church are appointed by the pope, their authority derives from divine institution and is received directly from God, not from the pope.
This fact is clear in the Gospel and in the documents of the Second Vatican Council, as we will briefly examine. But an important point that Father Murray has pointed out but not explored in depth is that “this new Code could be understood as a great effort to translate […] the conciliar ecclesiology into canonical language” (John Paul II, Apostolic Constitution Sacrae Disciplinae Leges). This obviously means that the Code must be understood and explained in the light of the documents of the Second Vatican Council.
Moreover, the Code must reflect “the distant patrimony of law contained in the books of the Old and New Testament from which is derived, as from its first source, the whole juridical-legislative tradition of the Church” (ibid.):
Christ the Lord, indeed, did not in the least wish to destroy the very rich heritage of the Law and of the Prophets which was gradually formed from the history and experience of the People of God in the Old Testament, but He brought it to completion (cf. Mt. 5:17), in such wise that in a new and higher way it became part of the heritage of the New Testament. Therefore, although St. Paul, in expounding the Paschal Mystery, teaches that justification is not obtained by the works of the Law, but by means of faith (cf. Rom. 3:28; Gal. 2:16), he does not thereby exclude the binding force of the Decalogue (cf. Rom. 13:28; Gal. 5:13-25; 6:2), nor does he deny the importance of discipline in the Church of God (cf. 1 Cor. chapters 5, 6).
For this reason,
besides containing the fundamental elements of the hierarchical and organic structure of the Church as willed by her divine Founder, or as based upon apostolic, or in any case most ancient, tradition, and besides the fundamental principles which govern the exercise of the threefold office entrusted to the Church itself, the Code must also lay down certain rules and norms of behavior.
Thus, we must examine what Revelation tells us concerning the authority of the bishops, and what the Second Vatican Council has taught us concerning the content of Revelation on this very point, in order to judge the removal of a bishop.
The Gospel teaches us that Christ gave to all the Apostles the right to judge: “whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven” (Matt. 18:18). Simon received this power first and above all, but as Scripture shows, the other Apostles received it as well. Moreover, when the dispute at Antioch took place, in the Council of Jerusalem, Peter and James spoke almost as equals because, although Peter has power over the whole Church, James was then the bishop in Jerusalem (see Acts 15:6-21). Again, in Corinth the jurisdiction of Peter and Paul seems to have overlapped, perhaps because Corinth was a Roman colony (1 Cor. 1:12).
The Apostolic Canons contain a similar teaching: the local bishop has his own authority distinct from that of the Metropolitan, although in important matters he needs the approval of the Metropolitan.
According to both Scripture and Tradition, then, and according to the Second Vatican Council, the bishop has a native jurisdiction that cannot be taken away by the Pope, except in a case where the bishop has committed a grave crime and must be punished by the universal visible head of the Church, as Father Murray indicates. The difference with other ecclesiastical offices is that by the very nature of the bishop’s office he cannot be removed unjustly because he is free to use his native jurisdictional power to oppose an arbitrary and openly tyrannical act of the pope. No other ecclesiastical office enjoys this native power of divine institution besides the pope. In that way it would be better to see the pope as a special case of what is true of all bishops than to see the pope as radically other than they, and thus, to empty bishops of their Christ-conferred apostolic authority, which the canons of the Church acknowledge and must respect by natural and divine law.
The Second Vatican Council sheds further light over this issue in its Apostolic Constitution Lumen Gentium:
Bishops, as vicars and ambassadors of Christ, govern the particular churches entrusted to them by their counsel, exhortations, example, and even by their authority and sacred power, which indeed they use only for the edification of their flock in truth and holiness, remembering that he who is greater should become as the lesser and he who is the chief become as the servant. This power, which they personally exercise in Christ’s name, is proper, ordinary and immediate, although its exercise is ultimately regulated by the supreme authority of the Church, and can be circumscribed by certain limits, for the advantage of the Church or of the faithful. In virtue of this power, bishops have the sacred right and the duty before the Lord to make laws for their subjects, to pass judgment on them and to moderate everything pertaining to the ordering of worship and the apostolate.
The pastoral office or the habitual and daily care of their sheep is entrusted to them completely; nor are they to be regarded as vicars of the Roman Pontiffs, for they exercise an authority that is proper to them, and are quite correctly called “prelates,” heads of the people whom they govern. Their power, therefore, is not destroyed by the supreme and universal power, but on the contrary it is affirmed, strengthened and vindicated by it, since the Holy Spirit unfailingly preserves the form of government established by Christ the Lord in His Church (27).
This long citation is necessary in order to make it clear that, whatever else may be the case, the Code of Canon Law may not be interpreted in a way that changes the divine constitution of the Church. A fortiori, the pope, even if in some sense he is above canon law as the one who promulgates it, has no right to act against the principles of natural and divine law that the Code embodies and particularizes. When he acts against the provisions set forth in the Code, he demonstrates his unwillingness to be bound by the deeper and immutable law that canon law exists to serve. He demonstrates, in short, contempt for rights and duties, which is the definition of an unjust ruler or, in the ancient title, a tyrant.
For all these reasons, the universal power of jurisdiction possessed by the pope cannot annul and destroy the native power of the local bishop, as would be the case if the pope could whimsically remove any bishop without due process, stated grave cause, and the opportunity for defense, as Francis has now done with many successors of the Apostles. It is tragic that these men have not exercised their God-given rights and duties by resisting the false and injurious exercise of the primacy of Peter.
The time has come when bishops have to withstand the current arbitrary use of power by the Roman See, because this resistance is required by the need to preserve divine Revelation, as the case of Bp. Strickland has made exceedingly clear. This means that no bishop should comply with a “dismissal” that is not the result of a canonical procedure in which a grave crime committed by the bishop himself (not any of his inferiors) has been fully proved. And “grave crime” is not a concept that Francis can manipulate ad libitum: it must be connected with the fundamental tenets of the revealed divine Laws (of the Old and New Testaments) and/or with the keeping of divine Revelation and the office of sanctification.
Jesus Christ Himself is calling the faithful bishops to be brave and to withstand this most subtle attack against the divine constitution of the Church. What is at stake here is not just the “guarantee of due process.” This attack is directed against the structure that He Himself established. It is an attack that is perhaps fulfilling the ancient prophecy by Leo XIII:
Most cunning enemies have filled with bitterness and drenched with gall the Church, the Spouse of the Lamb without spot, and have lifted impious hands against all that is most sacred in it. Even in the holy place where the See of Blessed Peter and the chair of truth was set up to enlighten the world, they have raised the abominable throne of their impiety…
 The New Raccolta, or Collection of Prayers and Good Works to which the Sovereign Pontiffs Have Attached Holy Indulgences, from the 3rd Italian edition (Philadelphia: Peter F. Cunningham & Son, 1903), 365.