FOREWORD    

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

1.1. The Problem

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!

1.2. What is Jurisdiction?

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:

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).

Cappello continues:

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."

1.3. The Nature and the Sources of Jurisdiction

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.

The sources of the power of jurisdiction are therefore multiple:

1. Christ himself, for the Pope, who in His name governs the Church as its visible head on earth (see Canons 109 and 218).

2. The appointment to an office to which jurisdiction is automatically attached, as it is the case of a diocesan Bishop (Canons 197 and 198).

3. The legitimate delegation of jurisdiction from a Superior, for instance when the Ordinary gives faculties to a priest so that he may hear confessions in the diocese (Canon 874, #1).

4. Canon Law itself, when contemplating extraordinary cases in Canons 209, 882, 1098 and 2261; without forgetting the exceptional situations indicated in New Code Canons 844 and 1117.

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.

1.4. Elements Of Solution: The Canons In Question

  1.4.1. New Code or Old Code?

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.

1.5. What is Supplied Jurisdiction?

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).

2. SUPPLIED JURISDICTION IN CASE OF COMMON ERROR

2.1. A Little History

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.

2.3. Notions

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.

2.4. Common Error is Also Applicable to Marriages

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.

REPLY: In the affirmative.  Given at Rome, from Vatican City, 26 March, 1952.

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.

2.5. Is it Permitted to Exercise Jurisdiction Supplied by Common Error?

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.

Once again, the first law must be the salvation of the souls.

2.6. Application to Our Case

  2.6.1. Regarding Confessions

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.

  2.6.2. Regarding Marriages

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.

  2.6.3. Is There Any Doubt?

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.

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