Validity of Confessions and Marriages in the SSPX

I still can see him. Who could ever forget him? Taking a pinch of fragrant snuff with the superb refinement of an English lord, the Rev. Dr. Thomas Glover, dressed in his immaculate cassock, towered above a class of young students of Theology at the International Seminary of Saint Pius X, in Econe, Switzerland.

Invariably hieratic and inscrutable during the somnolent early afternoon hours, the seminarians' faces reflected for once an unusual variety of sentiments, going intermittently from pious timidity to utter panic. It was their first encounter with the Codex Juris Canonici, the imposing volume which collects the two-thousand four hundred and fourteen Canons which regulate the discipline of the Catholic Church, all of it written in Latin.

It was in Latin as well that Doctor Glover was about to deliver his first lecture in Canon Law, at the beginning of the academic year. Well aware of the prevalent emotions of the audience, predominantly distressed, his first comforting words were: "Nolite timere! Codex vere est amicus vester!" "Do not be afraid! The Code is truly your friend."

I fondly recall this anecdote of my Seminary years, because the words of Doctor Glover have proven to be perfectly true. The study and the knowledge of Canon Law have permitted me never to find myself in a vulnerable position, when the moment has come to explain and to justify in the juridical domain the position and the actions of the Society of Saint Pius X. The law of Holy Mother Church is indeed our friend and guide in the present crisis.

This study on the validity of the confessions heard by our priests and of the matrimonies which they bless regularly in our chapels throughout the world has been prompted by the recent attacks of a group founded by a few priests who abandoned Archbishop Lefebvre after the Episcopal Consecrations of June 30, 1988. It appears that, in their understandable eagerness to please the Modernist hierarchy upon which they fully depend, the members of this faction not only declare invalid the absolutions given by our priests, and null and void the marriages we witness, but they have encouraged and attempted to "remarry" the couples who have already contracted matrimony in our chapels. I would not be surprised if soon we hear about instances in which our former faithful are being allowed sacrilegiously to proceed to a new marriage with a different party, on the false grounds that their previous wedding ceremony in our chapel was an invalid one. I believe that the peace of mind of the faithful and the sanctity of the Sacrament of marriage require an immediate reply.

I do not intend to write a treatise on the power of jurisdiction in the Church; there are many erudite ones already available in the ecclesiastical libraries. The simple goal of my work is to demonstrate, with canonical arguments, the validity of the confessions and marriages in our chapels of the Priestly Society of Saint Pius X. May the Speculum Justitiae, the Mother of God, Mother of the Church and our Mother, help me to serve such purpose with the following pages which I dedicate to her Immaculate and Sorrowful Heart 1. SOME CONSIDERATIONS ON THE POWER OF JURISDICTION

It is often heard that the priests of the Society of Saint Pius X do not have jurisdiction, and that the bishops consecrated by Archbishop Marcel Lefebvre and Bishop Antonio de Castro Mayer do not claim any jurisdiction either. In a way, this is true.

And yet, we know that the power of jurisdiction over the penitent is required for the validity of absolutions (Canon 872) , and that the ordinary canonical form of marriage requires the presence of an authorized priest (Canon 1094). Furthermore, without a canonical mission - which is an act of jurisdiction -a priest is not allowed to preach (Canon 1328). Authorization or delegation is as well required for performing a baptism in the usual way (Canon 739), and also to take Holy Communion to the sick in a solemn manner (Canon 848), to keep the Blessed Sacrament reserved in chapels of convents, schools and churches which are not parishes or attached to exempt religious houses (Canon 1265), to perform funeral rites (Canon 1230), to build a church (Canon 1162), and faculties are required by a cleric in order to be a legitimate minister of the Sacramentals (Canon 1146). The Code maintains that a Bishop can confirm licitly only his subjects (Canon 783), upon whom he has ordinary jurisdiction.

Nevertheless, our Bishops confirm worldwide, our priests perform all the sacred actions mentioned above, and traditional Catholics build churches and chapels where the Eucharistic Lord dwells permanently in His tabernacle. All this, needless to say, without the delegation of the diocesan prelate and often very much against his will.

So, let us face the problem: if the priests of the Society of Saint Pius X do not have jurisdiction, it appears that the confessions they hear and the marriages they bless are invalid. If they have no faculties, all the priestly work they perform every day is illegitimate and therefore evil. If this is so, it would be a sin to receive their services, maybe even to ask for them. If such is the case, the Society is deceiving the good traditional Catholic faithful!

As the Spartans replied to the invading army before the decisive battle, when the herald described the terrible retribution which would be inflicted upon their homeland IF they lost, our answer is also a laconic: "IF."

All the conditional aforementioned propositions are wrongly founded, and it will be the purpose of this study to prove it. Let us see in the following pages how indeed the legislation of the Church is on our side, how it helps us to perform our priestly ministry in these extraordinary times, how indeed Codex vere est amicus noster!

We are not interested here in studying the foundation and existence of jurisdiction, only its notion, so that we may understand what are we talking about. The former is the field of Juridical Philosophy, and there are very good studies on the subject; I recommend Ottaviani (Institutiones Iuris Publici Ecclesiastici, vol. I, 109ss.), the very concise article of Dom Baucher in the Dictionnaire de Théologie Catholique (Jurisdiction, volume VIII, columns 1976ss.) as well as various dissertations in Taparelli (Saggio Teoretico di Dritto Naturale) .

Let me nevertheless point out some concepts which I consider of the utmost importance:

A juridically perfect society is the one which pursues an end which is complete and perfect in its own order, a society which possesses the necessary means to attain such perfect end, and which in its own order is self sufficient and independent, a fully autonomous society (Ottaviani, Institutiones Iuris Publici Ecclesiastici, # 25).

The juridical status of a society, perfect or imperfect, depends on its purpose. Because of her supernatural purpose, the Church has the authority to rule her members for the attainment of their eternal salvation. This power of divine institution (Canon 196) is what we call ecclesiastical jurisdiction.

The Catholic Church is a perfect society, with a perfect end and full rights to obtain it: the end is the salvation of the souls and the means are the ones which her Divine Founder entrusted her, the doctrine to be taught, the Sacraments to sanctify, and the hierarchical structure to govern. These means correspond with the three munera or "functions" given by Our Lord to the Church: munus docendi, munus sanctificandi, munus regendi. By being faithful to these duties and using the means given by Our Lord, she leads the souls of the faithful to their eternal destiny in Heaven.

Following such great principles Cappello explains Canon 196, which concerns the power of jurisdiction in the Church. Jurisdictio ecclesiastica generatim sumpta, est potestas publica regendi subditos in ordine ad vitam aeternam. (Cappello, Summa Iuris Canonici, #242). When we speak about "jurisdiction" we are actually referring to the power of ecclesiastical jurisdiction or government. The New Code prefers to call it potestas regiminis (New Code Canon 129), even though it still accepts the old terminology potestas jurisdictionis (ibidem).

Let us retain this principle during our reading of the present study: the power of jurisdiction in the Church is exercised in order to foster the eternal salvation of the souls. This is an essential concept. The Church has jurisdiction in order to save souls, and whatever law frustrates such purpose is to be considered as not binding, because the Church cannot contradict her very purpose. The law of the Church must always be interpreted with the sublime axiom in mind: Prima lex salus animarum, "The first law is the salvation of the souls."

To be precise, instead of "jurisdiction" we should speak about the POWER OF JURISDICTION. Agostino Pugliese, S.D.B., in his article Jurisdiction, published by Palazzini in his excellent Dizionario di Teologia Morale, specifies clearly: The power of jurisdiction in the Church includes legislative, executive and judicial authority. Thus, while the power of orders stems from the sacrament of holy orders and is immediately directed to the sanctification of her members, the power of jurisdiction or government springs from the very nature of the Church as a supreme and perfect society that needs to be guided and governed in order fully to attain her spiritual end. Ordinarily, ecclesiastical jurisdiction can only be exercised by clerics (Canon 118).

Jurisdiction does not come from the reception of holy orders. The Pope receives it directly from Christ once he has been legitimately elected and has freely accepted the election. All the other degrees of jurisdiction are normally received by a canonical mission (Canon 109).

This canonical mission or official appointment is either ORDINARY or DELEGATED. Ordinary jurisdiction is automatically attached to an office by the law; it is the case of a diocesan Bishop, or of those prelates which in law are equal to him. Delegated jurisdiction is that which is committed to a person, and this can be done by an administrative act of the legitimate Superior or by the law itself. (See Canons 197ss.). Jurisdiction is also delegated in extraordinary cases by the law itself, which supplies for the lack of jurisdiction in a subject: we call it JURISDICTION SUPPLIED BY THE CHURCH. We will see it in detail afterwards.

My intention is to develop #4 with the help of Canon Law itself, the jurisprudence of the Holy See, and the commentaries of the many authors who have treated the subject, in order to prove beyond doubt that the confessions and matrimonies in our chapels are perfectly valid and legitimate. The development of the application of New Code Canons 844 and 1117 is presented here only as a convincing argument ad hominem.

I will quote consistently in my study the Canon Law of Saint Pius X, promulgated by Benedict XV in 1917, which has been the wise canonical legislation of the Latin Church until 1983. It was then replaced by a New Code, "in order that the Church may progress in conformity with the spirit of the Second Vatican Council" (Apostolic Constitution Sacrae Disciplinae Leges, January 25, 1983). The Society of Saint Pius X disagrees profoundly with the letter and the spirit of this New Code which enshrines the conciliar views on the Church and the world.

Nevertheless, it is interesting to note that the new legislation is almost identical to the precedent one concerning the subjects which we are treating here; a quick view at the Canons quoted in this article shows it clearly. In fact, the evolution of canonical doctrine tends ostensibly to develop in favor of a wider application of favors and freedom, everything being to our advantage. Having in mind that our case will be judged by our adversaries according to the New Code, I will often make reference to the correspondent canons, indicating it with the words New Code.

It could also happen that someone attempts to say that the past canonical doctrine is out of date, or that it has been suppressed by the New Code, and consequently the commentaries and opinions which I am quoting and using in this study are no longer valid. I want therefore to recall that "Canones huius Codicis, quatenus ius vetus referunt, aestimandi sunt ratione etiam canonicae traditionis habita" (New Code Canon 6, 2), which means that even though the New Code wants to substitute completely the one of 1917, the norms that reproduce concepts and practices of the old legislation must be understood and studied in the light of canonical tradition. Identical approach is to be found also in the 1917 Code, Canon 6, concerning the ancient legislation of the past centuries. It makes perfect sense, because without such a policy no jurisprudence nor coherent canonical study would be possible.

The Church is a mother, a mother legislating for the good of her children. Again, the first law is the salvation of souls; the Church governs the souls in order to lead them to Heaven. Certain juridical or administrative acts in the Church require the power of jurisdiction; although an unauthorized agent might observe every formality required by the law, his act will be invalid. A series of invalid acts, placed by an unauthorized agent, maliciously or in good faith, especially when such acts are distributed throughout a long period of time, will work havoc in any society, the Church not exempted.

It is a function, then, of good government to provide against this peril, not in the sense that invalid acts must be rendered valid, which will be tantamount to the legislator contradicting himself, but in the sense that the legislator PROVIDES FOR THOSE CASES IN WHICH A GENERAL DANGER TO THE SOULS IS VERIFIED. The Church provides by SUPPLYING jurisdiction to an agent who lacks it, and she does it for both the internal and the external forum.

This suppliance is to be conceived as a delegation by the law, delegatio a iure. The active subject of this extraordinary delegation is the common law, in the sense that is disposed in the legislation. The power is given not habitually but in actu: the agent does not possess the power before he uses it, nor does he retain it afterwards: he possesses it by delegation of the law ONLY AS LONG AS IT IS NECESSARY FOR THE VALID EXERCISE OF THE ACT.

The Church supplies only those things which pertain to the state and condition of persons, but not the formalities required by the law for the validity of acts. Also, the Church can supply only the power which is entrusted to her, not what is required by divine or natural law (example: a layman cannot receive supplied jurisdiction to hear confessions; he is not a priest).

Many of the canonical rules of the Church have their origin in Roman Law, and the suppliance of jurisdiction in case of common error is one of them.

There was a well-educated slave named Barbarius who escaped from his master and arrived in Rome. Roman Law declared null and void the acts of slaves, and they were unable to exercise any public charges. But clever Barbarius managed successfully to hide his origins and presented himself as a citizen, and he did it so well that the discriminating Roman people elevated him to the important dignity of Praetor, in which capacity Barbarius handed down many judicial sentences for years. Years of invalid acts, because he remained an unauthorized agent, a slave! Only after his death the truth about his lowly origin was known. What was to be done?

Pomponius and Ulpianus, both great jurists, explained that in order to avoid the great public disorders to follow from the invalidity of such actions, the Roman people ratified them as though they were valid from the beginning. This solution was a more human method of acting, and after all, Rome could have given jurisdiction to a slave, had she so wished! Hoc enim humanius erat. And therefore the people of Rome prevented the consequences of such actions. The solution was extended to a multiplicity of similar legal matters, and soon a new axiom of law became generally accepted: Error communis facit ius. We read this interesting story in the Digestum, l. I, tit. xiv, c.3.

COMMON ERROR is not common ignorance; the terms are not convertible, and therefore the fact that a community ignores that the priest lacks jurisdiction is not a sufficient reason for the Church to supply jurisdiction. An ERROR is required on the part of a community, whose members (or a number of them) actually believe that a priest has jurisdiction, even though in fact he does not have it. This is what we call ERROR OF FACT. However, it is a common sentence among canonists nowadays that it is sufficient to have an ERROR OF LAW, also called VIRTUAL ERROR, in order to fulfill the conditions required for the suppliance of jurisdiction. The New Code ratifies explicitly this doctrine in Canon 144, 1. Error of law consists in a FACT whose nature is sufficient to induce the error in a community, even though nobody in the community is mistaken about the lack of jurisdiction in the agent. It is not an actual error, but a fiction of law: an interpretative error, a fact that of its nature WOULD lead many in actual error. This means practically that if a priest without jurisdiction to hear confessions sits in a confessional or puts on a purple stole indicating that he is ready to hear confessions, the Church will supply his lack of jurisdiction for every absolution he will give. Surprising as it may appear, this is sound canonical doctrine. The different authors will shed light in the question, and will provide us as well with the elements required to prove our case.

Coronata, Compendium Iuris Canonici, 1950, Vol. 1, #558: Sufficit ut causa posita sit ex qua multi et fere omnes in errorem inducantur, vel saltem ex communiter contingentibus induci possint, licet forte de facto pauci prorsus vel etiam unica persona erraverit.

Cappello, De Poenitentia, 1944, #340ss. declares as certain the opinion which requires for common error factum externum et publicum ex quo fideles necessario in errorem inducantur. And in the same article, # 342, he gives as an example of such sufficient fact the one of a priest without licenses entering the confessional signifying that he is ready to hear confessions. In this circumstance, Cappello says, sive ille sacerdos plures aut paucos audiat poenitentes, sive forte nullum, habetur iam antecedenter communis error ortus ex praefatis adiunctis.

Regatillo and Zalba, Theologia Moralis Summa, 1954, De Matrimonio, 928: Error communis de iure est qui fundatur in facto de se publico quod ex natura sua inducit quemlibet ad putandum talem sacerdotem habere iurisdictionem, cum ea careat; seu qui fundatur in facto per se apto ad inducendum omnes in errore de existentia iurisdictionis. Ut si sacerdos publice sedeat in confessionali, quasi spectans poenitentes. Hodie SENTENTIA GENERALIS EST ECCLESIAM SUPPLERE IURISDICTIONEM AD CONFESSIONES NON SOLUM IN ERRORE COMMUNI DE FACTO, SED ETIAM DE IURE.

Van Kol, Theologia Moralis, 1968, vol. II, #316: Communior sententia hodie admittit Ecclesiam etiam supplere in errore de iure tantum communi: i.e. si habetur factum seu fundamentum publicum, quod natura sua aptum est ad communitatem in errorem inducendam... Idcirco error communis certe habetur... si sacerdos, iurisdictione carens, in sede confessionali sedet exspectans fideles ad sese accedentes.

Bucceroni, Casus Conscientiae, 6 edit. 129, 5. Well before the Old Code of 1917, this known author considers sufficient a virtual common error in order to obtain the suppliance of jurisdiction.

The same Coronata, op. cit., Vol. 3, #259: Plures tamen auctores, praesertim e modernioribus, docent sufficere ut fundamentum erroris habeatur seu ut habeatur factum aliquod ex quo facile notabilis pars communitatis coniicere possit sacerdotem illum ad quem accedet populus ad suam confessionem faciendam iurisdictione gaudere, quamvis de facto nemo adhuc accesserit et forte pauci omnino accesuri sint. Tale factum esset e.g. si sacerdos missionarius aut concionator in sede confessionali ad poenitentes exspectandos sedeat.

Vermeersch and Creusen, Epitome Iuris Canonici, 1937, 1, #322: Errorem interpretativum seu de iure exsistentem sufficere censemus. Nam, posito publice facto quod prudentes quoque in errorem inducit, hic publicus, non privatus, erit, atque Ecclesia, quae ob bonum commune iurisdictionem supplet, non censenda est permittere ut multi, immo pauci fructu validi exercitii iurisdictionis careant, quia plerique non simul, sed alii post alios in errorem inciderunt. * L'ami du Clergé, 1925, p.106, and 1948, p. 252, admits that it is sufficient to have a case of virtual common error, meaning by this one cause de nature à fonder l'erreur d'un grand nombre.

The New Code expressly recognizes in its Canon 144, #1, that the error de iure is sufficient for the suppliance.

Aertnys and Damen, Theologia Moralis, 1950, II, #359, repeat the same doctrine by defining common error as follows: si factum publicum aliquod positum fuerit quod per se natum est multos in errorem ducere.

Pugliese, in Palazzini's Dictionary of Moral Theology, 1962, article Jurisdiction, Supplied: the Church supplies jurisdiction in a case of common error. The error may be due to a false conviction concerning the possession of the required jurisdiction. It is necessary, however, that this conviction arise from a positive fact which would cause the faithful reasonably to assume that the priest had the required jurisdiction. A case in point might be . . . that of the priest who, acting as if he had jurisdiction, occupies the confessional or imparts absolution, when in fact he has no jurisdiction . . . (Common error) is called error of law when it stems or may stem from a fact which of itself is such as to lead many people into error even though in fact no one errs. Today it is generally held (and such an interpretation may be called certain) that the error of law is sufficient to require that jurisdiction be supplied.

Lombardía, Código de Derecho Canónico, 1983, in his commentary to New Code Canon 144: Common error of law is the one which refers in some way to the interpretation of the juridical norms which regulate the exercise of the power of jurisdiction. In order to obtain the suppliance of power, it is necessary that the error has its foundation on a public fact, firm and solid, capable of producing such error, and that the application of the suppliance may have an incidence in the general interest and benefit. This has a particular application to the usual faculties for hearing confessions, to assist to marriages and to the cases contemplated in Canon 883 concerning the minister of confirmation.

Vidal, Jus Canonicum, II, 1923, p.369 affirms that there is common error in the sense of the Canon when there is a public fact which in itself suffices to provoke an error.

For some time there was a doubt concerning the application of the suppliance of jurisdiction in case of common error to the assistance to marriages by a putative pastor or similar cases in which the priest did not have delegation. This was solved by a decree of the Code Commission, 26 March, 1952, which appeared in the Acta Apostolicae Sedis 44-497 and which I transcribe in the English translation given by Bouscaren, The Canon Law Digest, vol.3, p. 76:

The Code Commission was asked: Whether the prescription of Canon 209 is to be applied in the case of a priest who, lacking delegation, assists at a marriage.

With the New Code of 1983, all controversy in this subject must definitely cease. Indeed, it is explicit in Canon 144, #2, that the norm concerning the suppliance of jurisdiction in case of common error must also be applied to the assistance to a marriage.

In the same New Code we read elsewhere a direct reference to the same exceptional case:

It remains for us to explain in which circumstances can we apply the doctrine of common error to the celebration of a marriage. It is very simple: it is sufficient to have a situation in which a priest without the required faculties REGULARLY assists to marriages in the same place, so that a public fact is repeatedly presented which by its nature may induce the faithful to believe that the priest has the faculties to assist to marriages. Remember that this is pertinent and applicable EVEN THOUGH the faithful know that the priest has no faculties: as we saw it so clearly explained in Palazzini's work, error of law stems or may stem from a fact which of itself is such as to lead many people into error even though in fact no one errs.

A quick overview of matrimonial jurisprudence reveals that a parochus putativus validly assists to marriages despite his lack of faculties.

And in #24 he explains the case of a priest who presented himself as the pastor of the immigrants from Belgium:

It is interesting to note the insistence of the canonists in repeating that a colored title is no longer required. The colored title was some act or situation which ordinarily is sufficient to confer jurisdiction, but which in the particular case was rendered invalid for some secret impediment. In a word, it was an empty title, a fictional foundation upon which the suppliance could take form. This is no longer required, and we will see its importance when he make the application to our case, a little further.

Van Kol, a post-Vatican II theologian, treats the application of common error to marriage as follows (op. cit. #656):

What this Spanish quotation affirms is that the post-conciliar legislation wishes to reduce as much as possible the cases of invalidity because of defect of canonical form, and that the present approach is to make the suppliance act in as many cases as possible. Furthermore, it cannot be sustained nowadays that common error is united to the notion of common interest, but that the application of suppliance can be made in the case of the private interest of only one matrimony. The introduction of this important innovation in canonical doctrine reinforces our case still more.

The question is not the validity of such suppliance of jurisdiction; this has been treated extensively already. What we want to know is IF IT IS LICIT to use such jurisdiction supplied pro casu, if a priest without jurisdiction can voluntarily put an act which provokes common error, in order to validate his action, whether it may be hearing confessions or assisting at matrimonies.

There is indeed a very solemn interdiction for a priest to hear confessions without the required faculties (see Canon 2366). But all the authors teach that a GRAVE REASON justifies and legitimates the use of such supplied jurisdiction.

It is therefore licit for a priest without faculties to create a situation of common error in order to provide the faithful with the Sacraments that they may not receive otherwise.

In the Society of Saint Pius X chapels, schools, Mass centers, summer camps, and extraordinary gatherings of faithful in the occasion of pilgrimages, ordination ceremonies, and similar cases, it is sufficient for a priest to sit in the confessional, to put on a violet stole or to give some external public sign which the faithful recognize as an indication that he is ready to hear confessions for a group of people, for common error at least de iure to exist. In many established chapels the common error will be de facto.

The priest in such conditions will VALIDLY absolve the faithful in virtue of Canon 209, New Code Canon 144.

He will also LICITLY use this power because of the need of the souls who, without his action, would be obliged to remain for some time without confession, or else to go to a Modernist priest who may very well put their faith in danger.

In our established chapels and Mass centers, where the faithful usually receive the Sacraments and where matrimonies are habitually blessed, there is an undeniable situation of common error at least de iure. Our priests act as putative pastors and the faithful go to them in order to ask their assistance to marriages. The Church supplies jurisdiction in every case because there are many external and public facts (the actual existence of the "parish," the frequent weddings celebrated in it, the common acceptance of the fact that marriages are blessed in our chapels) and also because there is a common interest to serve and a common danger to prevent.

The modern interpretation of the Navarra professors, who declare that private interest suffices nowadays for the application of suppliance on the grounds of common error, allows us to extend common error to the sporadic celebration of one marriage, which is the prevalent case of most of our Mass centers.

It is pertinent to remember at this point that a colored title is no longer required to profit from this exceptional suppliance of jurisdiction. We are not to discuss whether our chapels are parishes or not, nor whether we have any juridical basis in acting as parish priests, etc. The mere FACT that we administer habitually the Sacraments to some community of faithful is sufficient to apply the doctrine of common error.

Our priests act therefore VALIDLY when they bless the marriages of traditional Catholic faithful, on the grounds of common error, in which the Church supplies the required jurisdiction. They also act LICITLY because of the same reason indicated before: there is a GRAVE cause motivated by the present crisis of faith.

Perhaps all these arguments do not fully convince the adversary of our thesis. The Church in her motherly wisdom has given us the answer in Canon 209 (New Code Canon 144).

Do you still doubt that our reasoning is correct? As long as the doubt is a positive and a probable one, the Church will supply jurisdiction for both the internal and the external forum. Which is the easy subject of our next article.

3.1. The Canons on Common Error and Positive Probable Doubt:

In errore communi aut in dubio positivo et probabili sive iuris sive facti, iurisdictionem supplet Ecclesia pro foro tum externo tum interno. (Canon 209)

In common error or in positive probable doubt whether of fact or law, the Church supplies jurisdiction both for the external and the internal forum. (Canon 209)

#1. In errore communi de facto aut de iure, itemque in dubio positivo et probabili sive iuris sive facti, supplet Ecclesia, pro foro tam externo quam interno, potestatem regiminis exsecutivam.

#2. Eadem norma applicatur facultatibus de quibus in cann. 883, 966, et 1111, #1. (New Code Canon 144)

#1. In common error about fact or about law, and also in positive ad probable doubt about law or about fact, the Church supplies executive power of governance both for the external and for the internal forum.

#2. This same norm applies to the faculties mentioned in cann. 883, 966 and 1111,1. (New Code Canon 144)

Who is exempt from doubts? Especially when navigating in the not-always-clear waters of Canon Law, some anxiety or scruple may appear. As an example, the case of common error before the New Code: in common error of law, does the Church supply jurisdiction? Some authors answered in the affirmative —we quoted many of them already —and some were opposed to it. There was indeed a DOUBT whether the law of suppliance applied or not in that case. The solution was to be found in Canon 209: as long as the doubt is positive and probable, Ecclesia supplet, and so, if the minister acted in the hypothesis that the error of law sufficed, the Church supplied jurisdiction, even though it may have happened that in fact such error was not sufficient.

DOUBT is that state of mind in which the intellect suspends judgment between two or more opposed propositions; the intellect cannot assent to one or the other without the fear of erring. If the mind assents to one of these propositions with prudent fear that the contrary might be true, such a state is called OPINION. This, too, in a broad sense may be regarded as doubt. A consultation of any moral treatise De Conscientia will confirm it.

A doubt is POSITIVE if there are serious motives of an objective foundation for assenting to two or more of the opposed propositions; it is NEGATIVE if the entire reason for doubt consists in the absence of motives capable of provoking prudent assent. Positive doubt is always PROBABLE doubt, since the motives on either side are serious ones.

DOUBT OF LAW is verified when there is a doubt concerning the existence or the extent of the law. DOUBT OF FACT is present when it is question whether or not a particular fact or circumstance is verified.

By virtue of Canon 209, New Code Canon 144, the Church supplies jurisdiction of either the internal or the external forum in positive and probable doubt either of law or of fact.

Let us see some authors in order to complete and understand better this consoling doctrine, which resolves so many difficulties.

Regatillo and Zalba, op. cit., # 403: Si est dubium positivum et probabile seu fundatum, iuris vel facti, supplet (Ecclesia), etsi sit privatum, i. e. unius vel alterius, non publicum; nam canon non distinguit. Sed ut suppleat, dubium iuris debet esse obiectivum, i. e. fundatum in ipsa lege, quae clara non sit aut diversimode a doctoribus intelligatur.

Van Kol, op. cit., # 316: In errore communi sacerdos semper valide absolvit omnes ad sese accedentes, etiam paucos illos qui defectum iurisdictionis forte noscant. Attamen illicite agit sacerdos qui absqui gravi ratione errorem communem provocat.

Woywood-Smith, A Practical Commentary on the Code of Canon Law, 1962, # 162: Generally speaking, a negative doubt means that one has no reason to serve as a basis for deciding a question, and it is about equal to ignorance on that question. A positive doubt means that one has a good reason for deciding a question one way, but that there is also a reason in favor of a contrary decision of the question. For example, the reasons for and against the existence of jurisdiction in a certain case create a positive doubt; and if the reasons on both sides are of such weight so as to create a bona fide doubt, the Church supplies the jurisdiction, even though actually the person did not possess it.

Is it LICIT? When? The authors are clear, even the strictest ones: NO REASON OR A VERY LIGHT ONE is required to use supplied jurisdiction on the grounds of Canon 209.

Yes, it does. Canon 209 does not make any restriction in the suppliance of jurisdiction, and even though the assistance to marriages is not strictly speaking an act of jurisdiction but a simple administrative act, we have already seen when treating common error that it must be considered under the circumstances contemplated by Canon 209.

The New Code is explicit, Canon 144, #2, applying the same norm to the faculties required in order to assist to marriages.

It cannot be more clear: when the minister has an objective doubt, founded on the law itself or on the authoritative interpretation of the law, concerning the existence of his jurisdiction, the Church supplies the jurisdiction, even though the minister may have no jurisdiction at all.

Let us see some of the many practical applications which illustrate this doctrine:

A priest of the Society of Saint Pius X doubts about the existence of common error for confessions or for marriages in his chapel. He realizes that there are many canonical reasons and arguments for it, but he still doubts because the Bishop or the chancellor of the diocese say that such absolutions and marriages are invalid. The Church supplies jurisdiction because his doubt of law is positive and probable.

The same priest is taking care of a sick person and, even though there are many indications that the patient is getting worse, he doubts whether there is or is not a danger of death. Can he administer the Sacrament of Confirmation validly using the faculties of New Code Canon 883, 3? Yes, he can, because in a positive and probable doubt of fact the Church will certainly supply the jurisdiction which he may not have if the patient is actually not in danger of death.

The same scrupulous priest wonders if the extraordinary form of marriage contemplated in Canon 1098, New Code Canon 1116, is to be applied to the case of a couple who considers that they have no moral access to the Modernist parish priest. After hearing their reasons, he realizes that they have serious motives in arguing a grave spiritual danger and therefore impossibility of moral access to a Modernist parish priest. He can be at peace because, in the worst case, his doubt of fact and of law puts him in a state in which the Church will supply for the jurisdiction required to validly assist to such marriage.

Our Hamletic priest is now trying to justify this particular absolution on the grounds of Canon 2261, New Code Canon 1135, which recognizes to any faithful the right to ask a Sacrament or Sacramental from an excommunicated priest, a fortiori from a priest of our Society. Did he really ASK? I think he DID. Does the interpretation of this Canon apply to our case? It should, it seems it does, but maybe someone else will not agree... He agonizes! Well, since his doubt is an objective one, founded upon the law and upon the commentators, on facts and not on mere conjectures, he can be sure at least that the Church supplies in virtue of Canon 209.

We can and we should have recourse to the suppliance in case of positive and probable error in order to answer those adversaries who oppose our canonical reasoning. Let us tell them that because our case is supported on solid canonical grounds, on the old and the new legislation, on the practice of the Church, on the sentences of the Roman jurisprudence, on the doctrine of renowned authors, even on favorable opinions of Cardinals, Bishops and diocesan chanceries throughout the world, we can definitely affirm that in such doubt Ecclesia supplet iurisdictionem. The Vatican itself takes our arguments so seriously that in the Protocol of May 5, 1988, the Holy See called for a sanatio in radice AD CAUTELAM of the marriages celebrated by our priests without the required delegation. So for the Vatican there is a chance that such marriages are valid. Again, this doubt is positive and probable, and once more the Church supplies jurisdiction.

4.1.2. The Canons on Danger of Death in Regards to Marriage:

In periculo mortis omnes sacerdotes, licet ad confessiones non approbati, valide et licite absolvunt quoslibet poenitentes a quibusvis peccatis aut censuris, quantumvis reservatis et notoriis, etiamsi praesens sit sacerdos approbatus... (Canon 882)

In danger of death, all priests, although not approved for confessions, can validly and licitly absolve any penitent from any sins and censures, though reserved and notorious, even if an approved priest is present. (Canon 882)

Quilibet sacerdos, licet ad confessiones excipiendas facultate careat, quoslibet poenitentes in periculo mortis versantes valide et licite absolvit a quibusvis censuris et peccatis, etiamsi praesens sit sacerdos approbatus. (New Code Canon 976)

Even though he lacks the faculty to hear confessions, any priest validly and licitly absolves from any kind of censures and sins any penitent who is in danger of death, even if an approved priest is present. (New Code Canon 976)

4.1.3. The Canons on Danger of Death in Regards to Confirmation:

* Ipso iure facultate confirmationem ministrandi gaudent:

#3. quoad eos qui in periculo mortis versantur, parochus, immo quilibet presbyter. (New Code Canon 883)

The follwoing have the faculty of administering confirmation by the law itself:

#3. with regard to those in danger of death, the pastor or indeed any priest. (New Code Canon 883)

Is it necessary to explain what is DANGER OF DEATH? Yes, because there may be some misunderstandings in the matter.

The Church in her legislation is always faithful to the axiom Sacramenta propter homines, and she extremes her zeal so that nobody dies without confession, for lack of faculties in a priest. This is why her legislation disposes that when one of the faithful is in danger of death, ALL PRIESTS (including excommunicated, suspended, interdicted, non approved, irregulars, heretics, schismatics, reduced to the lay state, even degraded from their priestly office) can absolve VALIDLY and almost always LICITLY from any sin and censure, even though an approved confessor may also be present.

According to this ancient and important norm, which we can already see explicitly in the Council of Trent, sess. 14 ch. 7 (Denz.-Sch.1688), it is sufficient that a cleric has validly received the sacred order of priesthood for him to obtain in this particular case full powers of jurisdiction, delegated by the Roman Pontiff through the law; and the concomitance of the two elements ORDER + JURISDICTION makes a minister capable of absolving.

On the subject's part it is required to be in DANGER OF DEATH. Danger of death is not here to be understood as "danger of spiritual death," as some erroneously affirm. The law refers to a danger of physical death, the separation of body and soul. The reference to "spiritual death by sin" is in this matter totally gratuitous and misleading. "Danger of death" does not mean either that the person should be in his agony, which is no longer called periculum mortis but articulum mortis. It is enough for him to be in a true danger, in which one can reasonably assume that death may follow soon, or even that he may lose permanently the use of his reason, becoming incapacitated to make his confession.

The cause of this danger of death can be INTRINSICAL (illness, old age, etc.) and also EXTRINSIC (war, grave surgery, imminent disaster, etc.). In case of doubt concerning the estimation of the motive, the priest can nevertheless validly absolve on the grounds of supplied jurisdiction in case of positive and probable doubt, as we already saw in the precedent article commenting Canon 209.

Please note that the danger of death has canonical consequences not only for confessions. The New Code allows ANY PRIEST to administer the Sacrament of Confirmation to any faithful in DANGER of death (see above, New Code Canon 883), and both legislations permit the extraordinary form of marriage in case of danger of death of at least one of the parties (see Canon 1098, New Code Canon 1116). We will study the special conditions for this particular case in the next article.

We find both confirmation and clarification of this doctrine in the texts of canonists and in the decrees of the Sacred Penitentiary:

Gomez, De Censuris in Genere, 1955, Cann. 2241-2251: Periculum mortis significat illud discrimen vitae in quo quis constitui potest, ita tamen ut superesse vel occumbere, est vere graviterque probabile. Adest proinde PRUDENS TIMOR de morte imminenti, quin requiratur ut sit certa quia tunc persona dicitur versari in articulo mortis. Huiusmodi autem periculum provenire potest ex causa intrinseca, v.g. ex morbo, vulnere inflicto, vel ex causa extrinseca, v.g. ex bello, terremotu, incendio, navigatione periculosa, operatione chirurgica, etc.

Van Kol, op. cit., #663: Periculum mortis habetur in omnibus casibus, in quibus rationabiliter timetur alterutrum saltem nupturientem moriturum esse vel sensibus destitutum iri, antequam testis qualificatus adesse vel adiri poterit. In hisce circumstantiis matrimonium valide coram solis duobus testibus celebratur, etiamsi iudicium de periculo mortis forte erroneum sit. Non refert quaenam sit causa timoris: morbus, incisio chirurgica, exsecutio poenae capitis, pugna, incursio aeria, inundatio, tempestas, etc.

Regatillo and Zalba, op. cit., #930: Periculum ex quavis causa, ut morbo, proelio, sufficit ut alterutri immineat. Moraliter aestimandum; error in aestimatione periculi valori nuptiarum non officit, nisi fuerit omnino imprudenter iudicatum aut prorsus fucatum. NULLA CAUSA requiritur ad matrimonium sic contrahendum, sicut requiritur as impedimentorum dispensationem (c.1043).

Sacred Penitentiary, 18 March 1912 and 29 May 1915, Acta Apostolicae Sedis 7-282, in Bouscaren 1, p. 411: Every soldier who is in a state of warlike assembly, or "mobilization" as it is called, can ipso facto be considered as in danger of death, so that he can be absolved by any priest he meets.

Our priests will find many opportunities in the performance of their apostolate to confess people in danger of death (especially the old and the sick). In cases of baptism of emergency because of danger of death for the child, they will do well in using the extraordinary faculty allowing a simple priest to administer Confirmation, which after all is a necessary Sacrament necessitate praecepti.

5.1. The Canons on the Extraordinary Form for Marriage:

Si haberi vel adiri nequeat sine gravi incommodo parochus vel Ordinarius vel sacerdos delegatus qui matrimonio assistant ad normam canonum 1095, 1096:

1º In mortis periculo validum et licitum est matrimonium contractum coram solis testibus; et etiam extra mortis periculum, dummodo prudenter praevideatur eam rerum conditionem esse per mensem duraturam;

2º In utroque casu, si praesto sit alius sacerdos qui adesse possit, vocari et, una cum testibus, matrimonio assistere debet, salva coniugii validitate coram solis testibus.(Canon 1098)

If the pastor or the local Ordinary or a priest delegated by either, who should according to Canons 1095, 1096 assist at the marriage, cannot be had, or the parties cannot go to him without great inconvenience:

#1. In danger of death, marriage will be validly and licitly contracted in the presence of only two witnesses.

#2. ...if there is at hand another priest who can be present, he should be called and he should assist at the marriage together with the witnesses. (Canon 1098)

#1. Si haberi vel adiri nequeat sine gravi incommodo assistens ad normam iuris competens, qui intendunt verum matrimonium inire, illud valide ac licite coram solis testibus contrahere possunt:

1º in mortis periculo;

2º extra mortis periculum, dummodo prudenter praevideatur earum rerum condicionem esse per mensem duraturam.

#2. In utroque casu, si praesto sit alius sacerdos vel diaconus qui adesse possit, vocari et, una cum testibus, matrimonii celebrationi adesse debet, salva coniugii validitate coram solis testibus. (New Code Canon 1116)

#1. If the presence of or access to a person who is competent to assist at marriage in accord with the norm of law is impossible without serious inconvenience, persons intending to enter a true marriage can validly and licitly contract it before witnesses alone:

1. In danger of death;

#2. ...if another priest or deacon who can be present is readily available, he must be called upon and must be present at the celebration of the marriage, along with the witnesses. (New Code Canon 1116)

The Church has determined in Canon 1094 (New Code Canon 1108) that the ordinary form for a valid marriage requires the presence of the pastor, or the local Ordinary or a delegated priest, and of at least two witnesses. However, both Codes contemplate exceptions from the ordinary canonical form, in which it is possible for the parties to contract valid and licit marriage before two witnesses, and without the presence of the authorized priest. Canon 1098 (New Code Canon 1116) considers two exceptional cases, of which the second interests us particularly.

It must be understood that this difficulty of securing the presence of the priest at the marriage need not be a general or common difficulty, but may be a particular and individual difficulty of the particular priest and couple.

The commonest situation is the one in which the priest is not physically reachable: there is no priest in the region, as it still happens in the immense territories of mission areas; or there is a religious persecution which makes it dangerous for his life to leave his refuge. The authors and the decisions of the Roman Rota clearly state that not only a physical impossibility, but also a MORAL INCONVENIENCE of a spiritual nature for the parties to have recourse to an authorized priest is sufficient to invoke the exception from ordinary canonical form, as long as the other conditions are also existing (danger of death, or physical/moral absence estimated for a month). For us, this is a capital argument.

When these two conditions concur, the parties do not need to observe the canonical form, even outside the danger of death. Two ordinary witnesses suffice. And, when in extraordinary circumstances even the two witnesses demanded by Canon 1098 cannot be present, and there is no one who can dispense from the forma, the parties may in a case of very grave necessity proceed without the two witnesses. Such is the liberality of the Church, always zealous of the spiritual good of her children, making readily available to them the Sacrament of marriage in exceptional situations.

The first condition has been already briefly explained; the texts in 5.3. will be more explicit and satisfying. But note that the marriage will be null if the belief that the priest cannot be reached is erroneous; so, if the FACT of the physical or moral impossibility was nonexistent, though the parties honestly and inculpably believed that it existed, there is no valid marriage.

The second condition simply requires a prudent and objective estimation, by inquiry or from notoriety of the fact, that the authorized priest will be neither available nor accessible physically or morally without grave inconvenience for at least one month.

It is immaterial if the authorized priest happens to be available within the month, or if the Ordinary shows unexpectedly for a visit. The marriage once celebrated under these conditions remains valid.

A hypothetical case, no doubt, but nonetheless revealing clearly the mind of the Church.

The Code adds for the LICEITY of the marriage the same condition mentioned above: if a priest without faculties can be called, he must be called and must assist at the marriage.

The precept obliges the priest and the parties, but its fulfillment only affects the liceity of the marriage, never the validity of its celebration before only two ordinary witnesses.

5.3. Some Texts

Merkelbach, Summa Theologiae Moralis, 1949, III, #849: Ad validitatem forma extraordinaria... sufficit: 1) QUODCUMQUE INCOMMODUM GRAVE, SPIRITUALE VEL TEMPORALE, sive partes directe afficiat, sive sacerdotem . . . 2) sufficit et requiritur IMPOSSIBILITAS PERSONALIS, non requiritur communis seu localis, nec sufficit communis si desit personalis... 3) non requiritur specialis causa: quodcumque motivum ineundi matrimonium sufficit.

Idem, #927, 6: Non sufficit ergo quaelibet subiectiva persuasio, sed IMPOSSIBILITAS requiritur, seu GRAVIS DIFFICULTAS SALTEM MORALIS, innixa fundamento reapse exsistente.

Regatillo and Zalba, op. cit. III, #930: Absentia parochi vel ordinarii vel delegati, seu impossibilitas eum habendi vel adeundi, non requiritur iam physica; SUFFICIT MORALIS, quae adest quando parochus vel Ordinarius, licet materialiter praesens, ob grave incommodum matrimonio assistere nequit requirens et excipiens consensum.

Idem, ib.: Vocandus est etiam censuratus ante sententiam condemnatoriam vel declaratoriam; post sententiam videtur posse vocari, quia nec sacramentum conficit nec sacramentale, si solum consensum requirat.

Wernz and Vidal, Ius Canonicum, V, #544: Relativa impossibilitas datur cum ad hoc ut habeatur vel adeatur sacerdos competens aut ut obtineatur sacerdoti incompetenti necessaria delegatio sit subeundum GRAVE DAMNUM PHYSICUM VEL MORALE.

Van Kol, op. cit., II, #662: Adire vel arcessere testem qualificatum impossibile esse potest, non solum physice, SED ETIAM MORALITER OB GRAVE SC. INCOMMODUM.

Idem, ib., #665: Sacerdos iste, qui ex supposito facultate assistendi caret, non prohibetur quominus contrahentium consensum requirat iisque benedictionem nuptialem impertiat, sed neque ad haec tenetur vi huius canonis.

Coronata, op. cit. III, 1048: Relative adire nequit si absolute quidem possint sacerdotem adire, at id non posssint sine gravi incommodo sive personali, sive sacerdotis competentis, sive tertiae personae, sive boni publici. Non est necesse ut incommodum grave sit omnibus commune; sufficit incommodum personale quod vel unam contrahentium partem afficiat.

Lazzarato, op. cit, #926, 5: Impossibilitas parochum habendi vel adeundi est absoluta, si tempus desit omnino aut medium nequaquam suppetat, ut vel nupturientes ad ipsum se conferre vel cum eo convenire possint vel ut ab eodem per epistolam delegatio obtineatur; est RELATIVA, SI NOTABILE DAMNUM physicum vel MORALE . . . PARTIBUS proveniret.

Idem, ib., 6: Unde sponsi non tenentur magnas sustinere expensas, vel iter valde durum et molestum suscipere, aut PERICULO ALICUIUS GRAVIS DAMNI se exponere, ut testem habeant qualificatum, quamvis forte culpabiliter neglexerint, immo fraudulenter, occasionem, eum commode habendi.

Code Commission, 25 July 1931, as in Bouscaren, op. cit., I, p. 542: The Code Commission was asked: Whether the "physical absence of the pastor or Ordinary" includes also a case where the pastor or Ordinary, although materially present in the place, is unable by reason of grave inconvenience to assist at the marriage asking and receiving the consent of the contracting parties. REPLY: In the affirmative.

The most important elucidation to make concerning the application of Canon 1094 (New Code Canon 1108) is the one which regards the grave inconvenience on the part of the couple to be married to approach an authorized priest.

It is beyond doubt that traditional Catholic faithful cannot approach a Modernist parish priest who will submit them to a deformed teaching concerning the doctrine of the ends of marriage, or the duty of procreation, or conjugal morals. The New Code (and with it the New Catechism of the Catholic Church) reverts the ends of marriage, and presents them as equal and independent: The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring (New Code Canon 1055,1).

The traditional doctrine expressed in Canon 1013 established an order and subordination among the ends of marriage, as the consultation of any pre-Vatican II moral manual will confirm: The primary purpose of marriage is the procreation and education of children. The secondary purpose is to furnish mutual aid and a remedy for concupiscence. A radical difference indeed!

Such distortion constitutes a very serious danger for the faithful, who can be led to wrong opinions such as the primacy of the common good of the spouses over the duty of procreation and education of the children. It is the open door to justify modern prevalent errors concerning divorce, contraception, sexual behavior, etc.

The faithful who have recourse to a Modernist priest put their very faith in danger of compromising with the post-Conciliar Liberal doctrines such as ecumenism and religious liberty, not to mention the myriad of horrors that have issued from the Vatican II revolution and which have affected the catholic beliefs and practice. They are perpetrated in virtually every "modern" parish in the world.

The parties have also the unalienable right to celebrate their union with the Mass for the Spouses according to the traditional Mass, in virtue of Saint Pius V's Bull, Quo Primum Tempore, and not with the New Mass of Paul VI, which "represents, both as a whole and in its details, a striking departure from the Catholic theology of the Mass as it was formulated in Session 22 of the Council of Trent" (Cardinals Ottaviani and Bacci, Short Critical Study of the New Order of the Mass). Time to quote New Code Canon 214:

We cannot forget to add the danger of scandal. Even though a particular couple may be and remain strong in the faith despite the recourse to the local Modernist priest, their implicit acceptance of a Modernist liturgy or of the deformed Modernist teachings may cause other couples to follow their example and expose their not-so-strong faith to a serious danger. This grave inconvenience for a third party is also a reason to claim exception from the ordinary canonical form.

The present crisis of faith in the Catholic Church puts our faithful in the precise condition required by Canon 1098 (New Code Canon 1108): they cannot have recourse to any authorized priest without putting their soul in grave danger of compromising, diminishing or even losing their faith.

Therefore, IN DANGER OF DEATH they can exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid. Furthermore, OUTSIDE THE DANGER OF DEATH, since it is a prudent estimation that the present crisis and the danger for the faith will continue to make it morally impossible for the parties to have access to an authorized priest for more than one month, they may exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid.

For the liceity of the ceremony, our priests if available must be called and must assist, performing the usual ceremonies.

If a doubt remains, since the doubt is founded on solid canonical and theological grounds, it is a positive and probable one, and in the occurrence the Church supplies the necessary jurisdiction according to Canon 209 (New Code Canon 144).

6.1. The Canons on Sacraments and Sacramentals Administered by an Excommunicated Priest:

#2. Fideles, salvo praescripto #3, possunt ex qualibet iusta causa ab excommunicato Sacramenta et Sacramentalia petere, maxime si alii ministri desint, et tunc excommunicatus requisitus potest eadem ministrare neque ulla tenetur obligatione causam a requirente percontandi.

#2. Without prejudice to the rule of #3 of this Canon, the faithful may for any just reason ask the Sacraments and Sacramentals from an excommunicated person especially if there is no other minister available, and the excommunicated person at their request may minister to them without any obligation to inquire into the reason for the request.

#3. Sed ab excommunicatis vitandis necnon ab aliis excommunicatis, postquam intercessit sententia condemnatoria aut declaratoria, fideles in solo mortis periculo possunt petere tum absolutionem sacramentalem ad normam can. 882, 2252, tum etiam, si alii desint ministri, cetera Sacramenta et Sacramentalia. (Canon 2261)

#3. From a minister who is an excommunicatus vitandus, or who has been excommunicated by a declaratory or condemnatory sentence, the faithful may ask for sacramental absolution in accordance with Canons 882 and 2252 only in danger of death, but, in the absence of other ministers, they can also ask for the other Sacraments and Sacramentals. (Canon 2261)

Si censura vetet celebrare sacramenta vel sacramentalia vel ponere actum regiminis, vetitum suspenditur, quoties id necessarium sit ad consulendum fidelibus in mortis periculo constitutis; quod si censura latae sententiae non sit declarata, vetitum praeterea suspenditur, quoties fidelis petit sacramentum vel sacramentale vel actum regiminis; id autem petere ex qualibet iusta causa licet. (New Code Canon 1335)

If a censure prohibits the celebration of the Sacraments or Sacramentals or the placing of an act of jurisdiction, the prohibition is suspended whenever it is necessary to take care of the faithful who are in danger of death; and if an automatic censure is not a declared one, the prohibition is also suspended whenever a member of the faithful requests a Sacrament, a Sacramental or an act of jurisdiction; this request can be made for any just cause whatsoever. (New Code Canon 1335)

This Canon constitutes the most formidable argument against our adversaries. It manifests in a splendid manner the motherly concern of the Holy Church, always providing for the spiritual welfare of her children.

The sense is obvious and it does not require long explanations: for any just cause whatsoever, the faithful may ask from a censured priest all the Sacraments and Sacramentals, and even an act of jurisdiction. The priest will act validly and almost always licitly.

This concession to the faithful is a consequence of the general canonical principle established in Canon 682: Laici ius habent recipiendi a clero, ad normam ecclesiasticae disciplinae, spiritualia bona et potissimum adiumenta ad salutem necessaria (similar declaration in New Code Canon 213).

The spiritual goods spoken of here are the ordinary suffrages, Sacramentals, indulgences, ecclesiastical burial, etc., while the necessary means of salvation referred to are the Sacraments, especially those necessary for salvation necessitate medii vel praecepti.

This right is conferred partly by the divine law in reference to the necessary means of salvation, especially the Sacraments; and partly by ecclesiastical law, as regards the Sacramentals, Sacraments not necessary by divine precept, etc.

Again and again throughout this study we find the practical application of the axiom Salus animarum est suprema lex. Translated to a concrete juridical reality by Canon 2261, this means that by their Baptism the faithful have the right to receive all services required for the good of their souls; and that the priests have the duty to administer them.

The minister has the obligation to put himself into the state of grace if he is not already in it, according to the rules of the moralists.

The exceptions are established not in favor of the excommunicated but in favor of the faithful, and therefore the act will be licit only when it answers a legitimate request; the excommunicated cannot take the initiative.

If the minister is an excommunicated tolerated, he can administer every time he is asked reasonably. The mere fact that the faithful ask for the Sacrament in good faith is sufficient cause to justify the request. To eliminate doubts and anxieties, the legislator expresses that the minister excommunicated does not have to investigate whether or not the faithful ask with a sufficient cause. Many authors believe that the request can be implicit.

Roberti, De Delictis et Poenis, 1944, #330: Confectio et ministratio sacramentorum et sacramentalium per excommunicatos generatim est valida. Sacramenta enim cum sint a Christo instituta, nequeunt poenis ecclesiasticis mutari. Sacramentalia dependent ab Ecclesia, sed Codex eadem non declarat invalida (c. 2261,1). Nihilominus confectio et ministratio sive sacramentirum sive sacramentalium prohibentur generatim excommunicatis, sed fideles possunt intra certos limites ea ab iisdem petere, quo in casu excommunicati generatim licite ministrant... Requisitio fidelium potest esse etiam implicita, e.g., si sacerdotem expectent ad audiendas confessiones, ad celebrandam Missam, ad impertiendam benedictionem, etc.

Prummer, Manuale Iuris Canonici, 1933, #571: Fideles enim possunt ex qualibet iusta causa ab excommunicato sacramenta et sacramentalia petere, maxime si alii ministri desunt, et tunc excommunicatus requisitus potest eadem administrare neque tenetur percontari causam a requirente. Excipiuntur tamen excommunicati vitandi et alii excommunicati post sententiam condemnatoriam aut declaratoriam. Ab his enim fideles in solo mortis periculo possunt petere tam absolutionem sacramentalem, quam etiam, si alius deest minister, cetera sacramenta.

We present this Canon simply as an argument ad hominem, being well aware of the state of mind of our opponents, and forcing them to take the logical conclusions of their positions concerning the legal status of the Society of Saint Pius X.

For us there is no doubt that the Priestly Society of Saint Pius X, erected canonically as a Pia Unio by the Bishop of Lausanne, Geneva and Fribourg, November 1, 1970, and praised by an official letter of the Cardinal Prefect of the Sacred Congregation for the Clergy, February 18, 1971 was illegally suppressed by the same Bishop. It is a fact that the action of Paul VI in order to validate such suppression did not constitute a confirmation in forma specifica, and that therefore the suppression remains invalid in law. The refusal of the Supreme Apostolic Signature to judge our case constitutes still now a scandal and an injustice of immense proportions.

We believe that the permissions to incardinate different religious in the Society given directly from Rome in the first years of the Society, well before it developed at an international level, authorizes our institute to continue to incardinate its members, and that our ordinations are perfectly legal.

However, for the sake of argumentation, let us accept for a moment the opinion of our opponents, and let us apply to our case the doctrine of Canon 2261 (New Code Canon 1335).

If the priests of the Society of Saint Pius X are under any canonical censure, be it an excommunication or a suspension, since the censure has not been declared, the faithful have the right to ask from them any Sacrament, Sacramental or act of jurisdiction, for any just cause whatsoever including the simple good of their soul. The priests will act both validly and licitly, without having any need to scrutinize the reasons of the faithful.

Please note the extremely important addition of the New Code: ACTUM REGIMINIS, AN ACT OF THE POWER OF GOVERNANCE (same as power of jurisdiction, see the terminology in New Code Canon 129). This includes any legislative, executive and judiciary act which may be necessary for the good of the faithful's soul.

Founded on the PRINCIPLES upon which this extraordinary concession is granted for the good of the faithful, the Society of Saint Pius X has created, for the present situation of emergency in the Church, a Canonical Commission which thoroughly investigates and answers the legitimate requests of traditional Catholic faithful in matters concerning vows, marriage cases, etc.

Against all law and right, the faithful are denied the essential right of having access to the pure sources of salvation by a Modernist clergy, which tyrannically imposes on them a New Mass, New Sacraments and Sacramentals, a New Catechism and a New Bible, a new conception of the Church and the world. They come to us asking for a service which we cannot refuse. We answer their just call, making ours the last words of the New Code, Canon 1752: "having before our eyes the salvation of the souls, which is always the supreme law of the Church."

7. NEW LEGISLATION CONCERNING THE RECEPTION OF CERTAIN SACRAMENTS FROM NON-CATHOLIC MINISTERS

The Second Vatican Council, in its Decree on Ecumenism, "De Oecumenismo, Unitatis Redintegratio," 21 November, 1964, presented the guidelines for the so-called ecumenical movement within the Catholic Church.

Its immediate practical application was substantiated in the Directory, Ad Totam Ecclesiam, issued by the Secretariat for Christian Unity on 14 May, 1967, signed by Cardinal Bea, President, and Bishop Willebrands, Secretary. In it we find section 2, "Sharing in Liturgical Worship with Other Separated Brethren," with the ancestor of New Code Canon 844.

There was no surprise when, in 1983, we saw this ecumenical policy included in the New Code, codifying under specious pretexts the communicatio in sacris which the Church had always abhorred. How far we were already from the sane doctrine of the Old Code!:

It is clear: a Catholic may receive from a non-Catholic minister the Sacraments of Penance, Holy Communion and Extreme Unction, under the following conditions:

We already studied what Canon Law means by physical or moral impossibility to approach a priest when we considered the exemption from the ordinary canonical form for marriage. This does not present any problem: a persecution, a very long distance, onerous expenses, a scandal to avoid, a grave inconvenience, a spiritual harm to follow, all these are justifiable circumstances and valid arguments.

I confess that for a long time I wondered about the meaning of the fourth condition. What does it exactly mean "in quorum Ecclesia valida existunt praedicta Sacramenta?" There is no doubt that, for example, an Old Catholic who has been validly ordained and fulfils the required conditions of matter, form and intention, can celebrate a valid although illicit Mass. Any validly ordained priest can administer a valid Extreme Unction, and any validly ordained Bishop can validly confirm and ordain.

Nonetheless, the reference to the Sacrament of Penance as being valid in a non-Catholic church did puzzle me. It was only by rereading the directory Ad Totam Ecclesiam that I finally understood the precise meaning. For the Vatican innovators, this means that the non-Catholic priest who is validly ordained administers validly the Sacrament of Penance in his church.

There is no other way to explain the restriction of #55 in the aforementioned directory:

This ecumenical measure has become an acceptable practice in the post-Conciliar Church. So, in practice, one of the faithful who judges impossible to be able to approach morally a Catholic priest, and who sees in it a true spiritual advantage, can ask from a non-Catholic priest who is validly ordained to hear his confession. The absolution will be valid according to New Code Canon 844.

He may also attend Mass, receive Holy Communion and also fulfill the Sunday obligation. The directory is explicit in #47, alluding to a Catholic who attends Sunday Mass "apud Fratres orientales seiunctos," in the Divine Liturgy of our separated brethren of the Oriental churches!

We will proceed once more accepting ad hominem an absurd opinion, namely the one of those who consider the members of the Society of Saint Pius X outside the Church, schismatic and even "founders of a new church," as a certain American Bishop brusquely certifies in grotesque personal letters written to concerned faithful and clergy.

IF the Society of Saint Pius X is a non-Catholic church, and its priests are validly ordained (point that nobody in his right mind discusses), New Code Canon 844, # 4 authorizes any of the faithful to ask from them the Sacraments of Penance and Extreme Unction, and also to attend their Masses, fulfilling as well the Sunday obligation.

The condition to take advantage of such permission is that there must be a true spiritual benefit for the person and that he avoids all danger for his faith. Any reasonable fear of spiritual harm arising from an approach to a Modernist priest in good standing will suffice to legitimate the recourse to the "Lefebvrites."

We are decidedly approaching the kingdom of lunacy. Unfortunately, such a miserable argument is the one which may convince and pacify our antagonists.

8. NEW LEGISLATION EXEMPTING FROM THE CANONICAL FORM FOR THOSE CATHOLICS WHO HAVE LEFT THE CHURCH BY A FORMAL ACT

In the Old Code, and after the modification of its Canon 1099 by the Motu Proprio Ne Temere, August 1, 1948, the obligation to observe the canonical form of marriage was determined both by the baptism received into the Catholic Church and by the fact of a conversion to Catholicism. Some other modifications took place concerning mixed marriages, essentially exempting from the obligation to keep the canonical form in cases of marriages celebrated between Catholics and baptized Oriental non-Catholic, as long as the wedding was blessed by a sacred minister.

An innovation is included by New Code Canon 1117: exemption from the canonical form for those who, having been baptized within the Catholic Church or converted to Catholicism, subsequently abandon the Church ACTU FORMALI, BY A FORMAL ACT.

Since 1983 there has been an extensive exegesis of the term actu formali. It will be enough for our purpose to quote the professors of Navarra, op. cit. pp. 680ss.:

The authors indicate that to abandon the Church actu formali it is required to have an EXTERNAL ACT of a juridical value, denoting clearly and unequivocally the formal renunciation of the Catholic faith. An example would be the ascription into a non-Catholic sect.

Accordingly, when the two contractants have abandoned the Church by a formal act, the New Code exempts them from the ordinary canonical form for marriage. This means practically that a simple exchange of vows in the presence of two witnesses is sufficient for a valid marriage to be contracted.

Obviously we will never justify the validity and liceity of the marriages in our chapels upon such an argument, because it would suppose that we are outside the Catholic Church, whom we serve in this her post-conciliar Calvary.

Still, ad hominem once more, and reducing ad absurdum the reasoning of the official authorities of the Church, it will help us to make a conjectural application of this Canon.

If the Society of Saint Pius X is a schismatic group, the only possible grounds for the adhesion to schism is the acceptance and defense of the Episcopal Consecrations of June 30, 1988 performed by Archbishop Marcel Lefebvre and Bishop Antonio de Castro Mayer in order to continue the "operation rescue" of the Catholic priesthood in the present situation of emergency caused by the post-Vatican II spiritual devastation.

We could easily enter into a clear demonstration that the "excommunications" were invalid, and also that the "schism" did never take place. We could even quote the decision of the Sacred Congregation for the Doctrine of Faith declaring invalid the excommunications fulminated by the Bishop of Hawaii on a group of traditional Catholics who attend a Society chapel. According to Cardinal Ratzinger, Prefect of the said Roman Congregation, there were no grounds for a declaration of the Society group as being schismatic.

But what we actually want to use as a hypothetical argument is exactly the opposite: let us accept for a moment the argument of those who call us schismatic. If the faithful of the Society of Saint Pius X, by their adhesion to the Episcopal Consecrations of 1988, are to be considered as being schismatic, Canon 1117 exempts them from the canonical form of marriage. Hence their weddings in our chapels are perfectly valid, and since both parties are baptized, the contract is a sacramental one.

This is the singular way in which the arguments of our antagonists turn against them.

The term epikeia does not appear in the Code. Nevertheless, it is a capital concept which deserves to be mentioned here, even though my study is not directly concerned with it.

We have proven beyond doubt (and, in case of doubt, back to Canon 209!) that the extraordinary situation in which we traditional priests exercise our ministry finds a friend in the Code of Canon Law. The Church has provided us with a legislation for exceptional cases, which justifies juridically our actions.

However, it may happen and it has already happened that in some situations we must act directly against the letter of the law. The Episcopal Consecrations of 1988, without Apostolic Mandate and against the explicit interdiction of Pope John Paul II, are the best example of such extraordinary instances. It is by the exercise of epikeia that we act according to the spirit of the law, in those special cases in which to follow strictly the law would have results contrary to the spirit of the law and the original intention of the legislator.

Epikeia is simply defined as the prudential and subjective judgment which estimates that the law does not apply in a particular case because of exceptional circumstances.

The intention of the legislator is reasonable and human, and certain situations may appear in which it would be unreasonable and inhuman to apply strictly the law, against the general intention of the legislator who has not precisely foreseen such particular case.

We have encountered in these pages some striking cases in which the rigid application of the general law would result in grave spiritual damage, or it would impede the exercise of a better action, even a surerogatory one.

Saint Thomas Aquinas (Summa Theologica, Ia IIae, q. XCVI, art. 6), following Aristotle, considers epikeia as a correction of the law, when the law is defective because of its universal character. The use of epikeia requires the existence of a superior right. A positive law loses its coercive power when its fulfilment is in conflict with the common good, or with natural or divine law. Epikeia's use is limited to those cases in which there is a danger for the common good, or the natural or divine law are violated.

This is another momentous and extremely delicate question, and I just want to outline it.

The power of jurisdiction is either ordinary or delegated. Ordinary power is either personal or vicarious. Ordinary vicarious power is the one exercised ON BEHALF of another person who has ordinary personal jurisdiction. Ordinary vicarious jurisdiction is exercised by a Vicar General on behalf of his Ordinary, by the Roman Tribunals and Congregations on behalf of the Pope.

If the Pope dies, the Sacred Apostolic Penitentiary continues to exercise vicarious papal ordinary jurisdiction for all questions concerning the internal forum. Meanwhile, the other offices of the Roman Curia are paralyzed until a new Pope is elected. But, as it happened in the past, if the conclave takes a long time to decide and it appears that the vacancy will continue for some time, all the essential mechanisms of the Roman Curia will slowly start moving, although restricting to emergencies the use of their ordinary vicarious jurisdiction.

The reason for this extraordinary exercise of power is THE COMMON GOOD OF THE CATHOLIC FAITHFUL.

Another scenario in which the exercise of the Supreme Pontiff's ordinary vicarious jurisdiction is to be contemplated would be the one in which the Pope is unable to fulfill his office. There are many hypothetical cases: a long illness incapacitating the Pope, a coma, imprisonment, persecution, etc.

Still another situation: if the Pope cannot be attained at all, the highest ecclesiastical authority available would legitimately exercise ordinary vicarious papal jurisdiction for the good of the faithful, as long as the situation lasts. In this hypothesis, which in Communist Russia was a tragic reality for decades, a bishop (and even a priest, if he is the only cleric available) would use these extraordinary powers, without having received a mandate but with the interpretative consent of the Pope.

In the present crisis of the Church, when we see the Pope himself, with his decisive support of the "spirit of the Council," contributing to confuse and mislead the faithful, couldn't we consider that we find ourselves in a situation deserving at least the study of this question? I simply place a premise and leave the rest to better and more daring minds. Forse altro cantera con miglior plettro . . .

Our intention has been to prove juridically the validity of confessions and marriages in the chapels of the Society of Saint Pius X, in order to give peace of mind to our faithful, and also to answer logically the illogical pretenses of our antagonists.

We have presented superabundant canonical evidence to back our claim, and we wish to summarize it as follows:

In the absurdity that the Society of Saint Pius X would be a schismatic group, our confessions would be valid on the grounds of the new canonical doctrine of SACRAMENTAL HOSPITALITY, and our marriages would be valid as well since the New Code EXEMPTS FROM CANONICAL FORM THOSE WHO HAVE LEFT THE CHURCH.

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