The commission to another of jurisdiction, which is to be exercised in the name of the person delegating
Delegation (Lat. delegare), the commission to another of jurisdiction, which is to be exercised in the name of the person delegating. Jurisdiction is defined as the power of anyone who has public authority and preeminence over others for their rule and government.
I. In ancient Roman law, delegation was the substitution of one debtor for another; the second debtor making payment in the name of the first. In modern civil law, the term delegations is used for committees of representatives or judges, who in the name of the parliament of the judiciary consider and determine the special matters confided to them. In canon law, delegation is the spiritual jurisdiction or power which a person exercises in virtue of a commission from one having ordinary jurisdiction (see Ecclesiastical Jurisdiction), with the understanding that such delegate must act in the name of the one delegating. The canons distinguish between delegation ab homine, and delegation a jure. The former is that which comes from a person in the strict sense of the word; while the latter may have its source in a juridical or moral person. Thus, it is through delegation a jure, that is in virtue of jurisdiction granted by the Council of Trent, that bishops have certain powers in regard to exempted regulars. Whenever the common law designates a person as having powers which belong to another by ordinary right, the one upon whom they are conferred is said to be a delegate a jure. If bishops exercise such powers “as delegates of the Apostolic See“, an appeal against their actions would have to be made to the pope, for it is really his jurisdiction they are employing; while if the common law refers to them as acting “also as delegates of the Holy See“, an appeal could be taken to the metropolitan, as in such a case the bishop acts in virtue of both ordinary and delegated jurisdiction. Historically, the origin of canonical delegation is to be sought most probably in the fifth (in the Latin version, the seventh) canon of the Council of Sardica (A.D. 347), which speaks of judges delegated for Roman appeals. From the fifth century onwards, instances of appointment of delegates by the popes are distinctly recorded, and such delegation became more frequent as time went on, particularly since the pontificate of Gregory I (590-604).
II. Anyone having ordinary jurisdiction may delegate another, unless such power be expressly withheld from him. It is necessary to mention this restriction, for although parish priests have ordinary jurisdiction for the tribunal of penance, yet they cannot strictly delegate another for that task, because the hearing of confessions belongs to the external forum and all confessions need episcopal approbation. The person delegated by the lawful superior must be a cleric well versed in the matter for which he receives delegation, and he must not be excommunicate. While the age of twenty years is prescribed by law for the delegate, it is also provided that the age of eighteen will suffice, if those concerned are satisfied. Several delegates may be appointed for the same matter. In this case each may receive such a commission that if he undertake the matter alone the other delegates may no longer interfere, unless the first be hindered from determining it (delegatus in solidum); or the power in a cause may be delegated to several persons so that they must act together to make the effect of their delegation valid (delegatus simpliciter). If the delegate be commissioned by the pope, he should ordinarily be an ecclesiastical dignitary or a cathedral canon, and the case should be heard in a city or place of some religious or civic distinction. It is evident, however, that the sovereign pontiff may, if he choose, derogate from these laws in all their aspects. General defects disqualifying a person to receive delegation are infamy, deafness, insanity, dumbness, slavery, and the like. It was stated that the person delegated should be a cleric; for neither bishops nor those inferior to them can delegate a layman for spiritual matters or for criminal causes of ecclesiastics. It is disputed whether a delegation made by them to lay judges to determine even civil causes of clerics would be valid. The pope, however, may delegate laymen for such cases when there is question of an individual instance. Reiffenstuel says that to commit in general all causes of ecclesiastics to laymen, would be to do away with the forensic privilege of clerics (privilegium f ori) and therefore is outside the sphere of papal prerogatives, as the exemption of clerics is probably of Divine right, The granting of a delegation may be verbal, except in cases where the law expressly prescribes that it be in writing. The delegation must also be the free act of the superior, for delegated faculties obtained absolutely against the will of the donor would be invalid. If, however, they be extorted by fear, they will not be void, for then they would not be absolutely against the will of the superior.
Delegated powers are necessary, either for the liceity or validity of an act performed by the delegate. If there be question only of the liceity of an act, permission reasonably presumed is sufficient. This would be the case, for example, in the administration of the sacraments, except penance and possibly matrimony. If, however, it be a question of the validity of an act, the delegation must be express, or at least rest upon a presumption of outward signs indicating actual consent. Such, for example, would be the delegation requisite for valid absolution in the tribunal of penance. In general, a delegate may not proceed to the exercise of his power until it be formally notified to him, for, according to an axiom of law, jurisdiction is aquired only by one knowing and accepting. In certain cases, this knowledge and acceptance may be only implicitly implied, but it is then considered sufficient. The fact of delegation must be proved to those concerned in the matter at stake, either by showing them the written instrument or exhibiting unexceptionable testimony that the power has been received. The delegate must also carefully observe the form of procedure specified by the superior who has empowered him to act. In case of grievance, an appeal may be made against the delegate to the tribunal of the person who delegated him. This fact shows that the power of the vicar-general of a diocese is not delegated power, for there is no appeal from his tribunal to that of the bishop, because their tribunal is declared to be one and the same. The power of a vicar-general is most correctly characterized as quasi-ordinary, for on the one hand, he holds an office to which certain faculties are annexed, and on the other, he exercises his powers in the name of another. Some canonists, however, maintain that a vicar-general has delegated, and others that he has ordinary jurisdiction. Finally, no inferior ordinaries can delegate their entire authority to others in perpetuity without the license of the Roman pontiff, because such delegation would be equivalent to abdication, which is not permissible without the consent of the supreme authority. What has been said in this respect of inferior ordinaries, holds good also for those delegated to certain classes of cases in general (ad universitatem causarum). As the powers delegated by the Holy See are generally for very important matters, the Council of Trent (Sess. XXV, c. 10, de ref.) made an effort to provide by law for a certain number of qualified persons whom the pope could appoint as his delegates. The council ordered that several such ecclesiastics should be elected in provincial synods and that their names should be forwarded to Rome by the bishops. The decree, however, was seldom acted on and gradually became entirely obsolete.
Delegated jurisdiction can sometimes be sub-delegated to others. If the delegate was appointed by the pope, even for a particular case, he has the power of subdelegation. The latter is prohibited only when the matter has been committed to his personal care in an especial manner, or when it is of unusual importance or of a merely executive nature. Hence, when a confessor has received by Apostolic privilege the faculty of absolving all the faithful from certain sins and censures, or of dispensing in certain irregularities and vows, he can not subdelegate this ministry. In like manner, one who has been charged with the execution of matrimonial dispensations may not sub-delegate the ministry itself, yet he may employ others to assist him in Matters connected with his delegated jurisdiction, provided their work be only supplementary, not principal. If the delegate was appointed by an ordinary other than the pope, he can not sub-delegate, unless he has been commissioned ad universitatem causarum, or when the person delegating has given him the special authority to subdelegate. Thesubdelegate cannot make a new delegation, but he can call in the assistance of others for the details of his work. When a delegate has confided all his authority in a particular matter to a subdelegate an appeal from the decision of the latter does not lie to the delegate, but to the superior who had originally commissioned the delegate.
Delegation ceases if the work assigned to the delegate has been completed; if the delegate abdicates his power or declares the rescript of his appointment invalid; if the term fixed for the conduct of the matter has expired, unless in a contentious case both parties have agreed to a prorogation; if the delegation be revoked; if the delegate die, unless he was one of a number of delegates simpliciter and their commission had provided for its continuance in such an emergency; if the person delegating die, and the case had not yet begun; if the person die on whose account the delegation was constituted, unless some matter concerning the Church or a prelacy be at stake.
WILLIAM H. W. FANNING