A Refutation of the SSPX’s Appeal to Canonical Equity John Salza Replies to Fr. Peter Scott

 
A Refutation of the SSPX’s
Appeal to Canonical Equity 


John Salza Replies to Fr. Peter Scott

 

John F. Salza, Esq.
March A.D. 2022

 

          To justify their ability to operate without a canonical mission, and also to allegedly receive supplied jurisdiction, the clergy of the SSPX appeal to a principle called “canonical equity,” which is addressed in canon 19 of the 1983 Code of Canon Law. In the SSPX article “Supplied Jurisdiction and Traditional Priests,” Fr. Peter Scott states the question as follows: 

Fr. Scott:  Many have asked how traditional priests can continue to administer the sacraments, and especially hear confessions, when they have had their sacramental faculties removed by the local ordinary.

 

The following considerations will help you to understand not only the injustice of this, but also how these priests are clearly entitled to use supplied jurisdiction. It is obvious that the present crisis in the Church is not foreseen in Canon Law. 

He then goes on to say: 

Fr. Scott:  Consequently we must base our activity on the juridical analogy taken from the general norms of the Codes (Canon 20 in the Old Code and Canon 19 in the New Code)...[1] 

Thus, let’s take a look at canon 19. It provides: 

If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in light of laws issued in similar matters, general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons. 

         Canonical equity allows a person who is responsible for applying the positive (human) law of the Church (e.g., bishop, parish priest), to interpret the law as permitting something which is lacking or not expressly provided for in the law (which canonists call a “lacuna legis” or “hole in the law”). The interpretation is based on an “analogy of law” (“analogia legis”) drawn from similar situations which are addressed in the law (either in other laws, or principles of law, ecclesiastical decisions and learned opinions). The purpose of canonical equity is to promote the common good and the salvation of souls in cases not foreseen in the Church’s canon law. 

For example, while canon law requires a gravely ill person to have attained the age of reason to receive Extreme Unction (canon 1004, §1), it is silent about gravely ill people who have not attained the use of reason due to a mental disability. By analogy of law, a priest may conclude that such a disabled person may receive the sacrament if they have sufficient use of reason to be comforted by the sacrament.[2]  Thus, the case of a disabled person with sufficient use of reason is in parallel with canon 1004, §1 which requires the use of reason. This is an example of applying canonical equity based on an analogy of law.[3]   

Now, the SSPX claims that because “the present crisis in the Church is not foreseen in Canon Law,”[4] and this crisis has resulted in the Modernist authorities in the Church depriving the SSPX of a canonical mission,[5] they are able to appeal to “canonical equity” to justify the exercise of their ministry, even without a canonical mission. As we will see below, to establish the requisite “analogy of law,” the Society attempts to draw from a variety of rules and principles in canon law, such as common error (c. 144), positive and probable doubt (c.144), scope of the ordinary faculty for confessions (c. 967), absolutions in danger of death (c. 976), sacramental sharing (c. 1335), and the salus animrum (cf. c. 1752). 

The purpose of this article is to address the SSPX’s appeal to canonical equity to justify their ministry and show why it is entirely erroneous. We will do so by examining Fr. Peter Scott’s article mentioned above.         

“Canonical Equity” Cannot Be Used
to Circumvent Divine Law

           Before addressing Fr. Scott’s article, we note a most critical point that the SSPX has missed in their appeal to canonical equity, which proves canonical equity does not apply to them: the requirement that bishops (and the priests who serve under them) have canonical mission in the Church is a matter of divine law, not canon law. While canon law regulates mission, the necessity for a cleric to be “sent” by legitimate authority is part of the divine positive law of Christ, revealed in both Scripture and Tradition. Christ conferred the divine mission upon the Apostles by sending them into the world (Mt. 28:19), and commanded them to confer mission upon others, and so on, until the end of the world. 

As Pope Pius XII teaches: “For in virtue of the juridical mission by which our Divine Redeemer sent His Apostles into the world, as He had been sent by the Father, it is He who through the Church baptizes, teaches, rules, looses, binds, offers sacrifices.”[6] Because the requirement for a cleric to have “juridical mission” in the Church is a matter of divine positive law, the SSPX cannot appeal to canonical equity based on a lacuna in canon law to skirt the requirement of having legitimate mission. Human law can never be used to circumvent divine law. 

Pope Pius XII underscored the divinely revealed foundation of the Church’s juridical mission, by harshly condemning those validly consecrated bishops who exercise the power of Holy Orders without being sent by legitimate authority, likening them, in the words of Our Lord, to “thieves and robbers”: “sheepfold, but climbs up another way, is a thief and a robber.’”[7]

 This is why the Council of Trent anathematizes anyone who would call such bishops lawful ministers, since they engage in unlawful (or, as Pius XII said, “criminal and sacrilegious”) activity: “If anyone saith that bishops…who have neither been rightly ordained, nor sent by ecclesiastical and canonical power, but come from elsewhere, are lawful ministers of the word and of the sacraments; let him be anathema.”[8] To hold such bishops as lawful ministers is anathema because the necessity of mission (being sent by lawful authority) is a requirement of divine law and a matter of faith.

 This is also why the Church requires those clerics who seek to minister to the faithful but do not have a canonical mission, to prove they have an extraordinary mission, meaning they were sent directly by Christ (and not Church authorities) through a supernatural intervention. But for the cleric to prove he has an extraordinary mission, the Church has always required him to have miracles, which serves as a divine testimony to what comes from divine law – his mission. As Pope Innocent III taught: “…it does not suffice for anyone to assert so boldly that he is sent by God, since any heretic may profess this: but it is necessary that he proves that invisible mission by the working of miracles or by special testimony of the Scriptures.”[9] Pope Benedict XIV also wrote: “‘no credit is to be publicly given to him who says he has invisibly received a mission from God unless he confirms it by a miracle or a special testimony of Holy Scripture.’”[10] 

 As applied here, the SSPX cannot appeal to canonical equity to justify their ministry because the requirement for bishops (and the priests who serve them) to have “juridical mission” is a matter of divine law, not canon law. Canonical equity (canon 19), on the other hand, provides a remedy when the Church’s canon law is lacking to provide a solution for a particular case. While the Church’s canon law may lack provisions for certain unforeseeable cases, divine law foresees all things. Thus, the presence or absence of something in canon law can never be used to circumvent the divine law - which is precisely what the SSPX attempts to do when appealing to canonical equity to justify its existence outside the Catholic Church and ministry without mission. 

 Because the SSPX’s appeal to canonical equity to justify its illicit ministry is completely fallacious, we could stop here. But it is also important to note that only those who are tasked with the responsibility to interpret the Church’s law would rightfully use canonical equity. This means those who have an office or other official position in the Church, such as “judges and administrators (bishops, vicars general, religious superiors, parish priests, et. al.).”[11] In other words, only those who are part of the Roman Catholic Church and responsible for interpreting and applying her laws to real situations could appeal to canonical equity as they seek to equitably enforce the Church’s law.

 However, as Cardinal Burke recently stated, “they [the SSPX] are not part of the one Roman Catholic Church throughout the world.”[12] Because the SSPX is not currently part of the Catholic Church, their clergy hold no title (nor even “color of title”) that would give them any authority to render legal judgments that would affect members of the Catholic Church. Hence, the clergy of the SSPX, not being a part of the Catholic Church, have no standing to appeal to canonical equity, because they are not legitimate interpreters of the Church’s law. 

Note also that while canon law is meant for the generality of cases, canonical equity applies to particular cases. Yet, the SSPX’s appeal to canonical equity is not particularized to individual cases (which would still be erroneous), but rather generalized and applied en masse to Catholics at large. Hence, the Society turns the principle of canonical equity on its head. This is yet another reason why the Society’s appeal to canonical equity is totally fallacious. 

Finally, recall that, in order to apply canonical equity, the interpreter must not only evaluate laws issued in “similar matters” and “general principles of law,” but also “the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons” (canon 19). It should be no surprise that the various analogies of law that the Society has manufactured to justify its ministry without canonical mission are not supported in any of the decisions of the Church’s jurisprudence or practice of the Roman Rota (if it were, the SSPX would put the cases on full display).[13] This is because the Church’s human positive law, whether codified in canon law or in her common law of administrative decisions and opinions, can never be used to overrule the divine law, which requires clerics to have canonical mission in order to lawfully exercise the priesthood of Jesus Christ.  

The SSPX Uses Faulty “Analogies of Law”
in its Appeal to Canonical Equity 

          Even though canonical equity does not apply to the SSPX, nor support its claim that they can operate without a juridical mission, let’s also examine (and refute) the “analogies of law” the Society has attempted to make in its fallacious appeal to canonical equity, which demonstrates that its entire position is built on sand. In Fr. Scott’s article, he explains that, in accordance with canon 19 (canon 20 of the old code): 

Fr. Scott:  …if there is no express law concerning a special situation, the rule must be taken from:

 

1) laws promulgated for similar circumstances. The similar circumstances are those in which the Church supplies jurisdiction on account of the grave danger to souls.

         Now, before addressing these “laws promulgated for similar circumstances” (which the SSPX means similar to “the crisis in the Church”), notice that Fr. Scott admits he will be appealing to canons which determine when the Church supplies jurisdiction, but not canonical mission, to clergy in certain cases. Yet most of the SSPX’s ministry (e.g., baptizing, offering Mass, giving Holy Communion) does not require jurisdiction (the power of governance), but only canonical mission (for bishops) and incardination (for priests). In fact, because Pope Francis has delegated faculties to the SSPX clergy for confessions and, with the approval of the local ordinary, marriages (two sacraments that require jurisdiction), the Society’s appeal to canons relating to supplied jurisdiction are misplaced. Supplied jurisdiction is not required for baptizing, saying Mass, giving Holy Communion, etc.; rather, mission is required. 

Hence, Fr. Scott admits he will be appealing to canons addressing supplied jurisdiction, even though canonical mission (and not jurisdiction) is what is required to make the SSPX ministry lawful.  Of course, Fr. Scott is not able to appeal to canons which provide mission in “similar circumstances,” and that is because the Church’s canon law does not supply mission. Rather, as shown above, mission is provided by the legitimate authorities of the Church as a matter of divine law (which, again, makes the SSPX’s appeal to canon law futile to justify their ministry).  

Fr. Scott continues: 

Fr. Scott:  They are the cases of:

 

common error concerning a priest’s jurisdiction: Old Code [i.e., the 1917 Code of Canon Law, forthwith "OC"] Canon 209 (New Code [i.e., the 1983 Code of Canon Law, forthwith "NC"] 144). 

The SSPX’s appeal to “common error” under canon 144 to justify its ministry is erroneous not only because canon 144 concerns supplied jurisdiction and not mission, but also because “common error” would not apply to SSPX clergy, as I demonstrate in my rebuttal article to Fr. Tranquillo’s Crisis series podcast.[14] The Church supplies jurisdiction on the basis of common error only when the Catholic community would conclude that the priest in question has habitual jurisdiction authorized by the local ordinary,[15] which SSPX clergy do not have, as their adherents well know.   

Fr. Miaskiewicz, who wrote a book on supplied jurisdiction, explains that “the error must be concerning the habitual power of jurisdiction of someone.”[16] He also explains: “That common peril does not exist except when the people of a community fall into error about some qualification or power which a priest is believed habitually to possess and which he might use to their common detriment.”[17] Miaskiewicz further says: “However, it must be kept in mind that the law of canon 209 supplies only that jurisdictional power which the holder of the office would legitimately exercise, e. g., as canonical pastor or local ordinary.[18] As we can see, the error[19] that the community must make is that their priest has habitual,[20] not supplied, jurisdiction, and such habitual jurisdiction would obviously only be enjoyed by a legitimate pastor (that is, an incardinated priest) or the local bishop (with a canonical mission).[21]   

In addition, the SSPX misapplies common error to their communities. The SSPX chapel is not the community whose “common error” triggers supplied jurisdiction. Rather, it is the community that is subject to clergy with ordinary jurisdiction (the specific diocese or territorial parish in which the SSPX clergy operate).  In other words, it is the local Catholic community who would have to make the erroneous judgment that the SSPX priest who has set up shop in its diocese possesses ordinary jurisdiction. This makes sense, because the Church’s provisions for supplied jurisdiction on the ground of common error are designed to protect and promote the common good of the Church, which would not be served by supplying jurisdiction to clerics with no legitimate mission, whose chapels are set up without the permission of, and even in opposition to, the local bishop.[22]   

Thus, the SSPX’s appeal to common error to justify its ministry is a faulty analogy of law. Common error which protects the common good of the Catholic community, who is served by priests with ordinary faculties, is not analogous to protecting an SSPX (non-Catholic) community, who has recourse to priests with faculties but chooses to be served by priests who have no canonical mission, on the pretext of a crisis in the Church. 

Fr. Scott:    positive and probable doubt: OC 209 (NC 144). This can be concerning jurisdiction or common error or danger of death. 

       Again, the SSPX’s appeal to the “positive and probable doubt” prong of canon 144 to justify its ministry is erroneous, not only because canon 144 concerns supplied jurisdiction and not mission, but also because “positive and probable doubt” would not apply to SSPX clergy, as I demonstrated in my article refuting Fr. Tranquillo. The Church supplies jurisdiction on the basis of probable and positive doubt only when a priest has a real and objective doubt about whether he has the faculty (ordinary or delegated) from the local bishop or other legitimate authority, which is not applicable to SSPX clergy.

To state the obvious, an SSPX priest will not have any doubt, much less positive and probable doubt, about whether he, legally or factually, has jurisdiction from the bishop of the diocese in which he illicitly functions. Remember, the doubt has to be whether the priest has ordinary faculties. Of course, all SSPX clergy priests are absolutely certain that they have no jurisdiction from the local bishop, and they openly admit it. They have no doubt of fact regarding whether the local bishop has granted them jurisdiction, and they have no doubt of law regarding whether a priest who operates without the bishop’s permission has jurisdiction from that bishop. 

Thus, the SSPX’s appeal to positive and probable doubt to justify their ministry is a faulty analogy of law. Positive and probable doubt, which protects the common good of the Catholic community as well as the priests with ordinary faculties who serve them, is not analogous to protecting a non-Catholic community who has recourse to priests with faculties but chooses to be served by priests who have no canonical mission, on the pretext of a crisis in the Church. 

Fr. Scott:     non-cognizance to the fact that jurisdiction has expired: OC 207. 

As with cases of common error and positive and probable doubt, “non-cognizance to the fact that jurisdiction has expired” likewise refers to the ordinary jurisdiction that clergy receive from the local bishop or other legitimate authority (this is how such jurisdiction can “expire”). This provision also does not apply to SSPX clergy. 

Thus, the SSPX’s appeal to non-cognizance of expired jurisdiction to justify their ministry is a faulty analogy of law. Non-cognizance of expired jurisdiction, which protects the common good of the Catholic community who is served by priests with ordinary faculties, is not analogous to protecting a non-Catholic community who has recourse to priests with faculties but chooses to be served by priests who have no canonical mission, on the pretext of a crisis in the Church. Note also that Fr. Scott appeals to canon 207 of the old code which has been abrogated (this situation would be covered by positive and probable doubt under canon 144 of the new code). 

     Fr. Scott:      danger of death: OC 882 and 2252 (NC 976 and 1357). Those who cannot find a suitable confessor for a long period of time and who are consequently in danger of spiritual death must be assimilated to those in danger of death, according to the principle of Canonical Equity (see below). 

The Society’s attempt to analogize “spiritual death” (at the hand of the Church’s Modernists) with physical death (periculum mortis) is completely flawed and has no precedent in the canonical tradition. Recall the example of a priest who concludes that a mentally handicapped person, who was gravely ill and hadn’t attained the use of reason as normal adults do, but had sufficient use of reason to be comforted by Extreme Unction, could be anointed, because the case was analogous to what the Church requires for a non-handicapped person (the “use of reason” under canon 1004).

              The priest applies canonical equity by: (1) knowing that canon 1004 requires “use of reason” for Extreme Unction; (2) recognizing the lacuna legis which does not address Extreme Unction for the mentally disabled; (3) makes an analogy of law by applying the “use of reason” language of canon 1004 to the mentally disabled person who has the “use of reason” sufficient enough to be comforted by the sacrament; and, (4) equitably applies the principle of canon 1004 to his particular case, to promote the common good and the salvation of souls. The case of the non-handicapped person who has “use of reason” is in parallel with the case of the handicapped person who has “use of reason” to be comforted by the sacrament. They both face the same issue of whether they have the use of reason to benefit from the sacrament. The strict parallelity of the cases is required in order to make an analogy of law.

               The Society’s attempt to analogize a subjective claim of “spiritual death” of Catholics, to canon 976 which allows priests without faculties to absolve someone “in danger of [physical] death,” in order to allow priests without canonical mission to do essentially everything that priests with mission do, has no parallelity and is entirely without merit. Needless to say, a person in an objective state of danger of physical death is not in parallel with a person who, by a subjective assessment by a third party, is in danger of spiritual death (which is an internal matter that the Church does not judge). The person who is in danger of physical death may not have recourse to a priest with faculties, while the person in danger of “spiritual death” would have such recourse.

             Unlike the cases of Extreme Unction, these persons do not face the same problem. This forced analogy illogically extends the suppletory principle of canon 976 (which validates even an excommunicated priest’s absolution of someone in danger of physical death) to cases where there is no danger of death - and to support not just absolutions, but the entire priestly ministry of teaching, sanctifying and governing without canonical mission. The attempted analogy is absurd on its face.

            Of course, the extreme pastoral case of periculum mortis (where the dying person may not have recourse to a priest with faculties to hear his confession, which is the very reason for canon 976) is not analogous to cases where a person is not in danger of death and thus has recourse to priests with the proper faculties. In fact, canon 976 underscores the importance of faculties in all but the most extreme cases, where there is a risk of physical death, when the soul will separate from the body. Such cases are absolutely not in parallel with cases where one risks “spiritual death,” since all grave sin leads to spiritual death. Instead, analogous cases relating to “danger of death” would be those addressing whether a particular condition (e.g., going to war; undergoing serious surgery) would qualify as “danger of death.”

         If a subjective assessment of spiritual death (which would require reading one’s soul) were grounds for granting canonical mission or even supplied jurisdiction to priests without the proper faculties, it would render the Church’s law on mission and jurisdiction completely meaningless. As Fr. Miaskiewicz rhetorically asks: “Would not such a practice nullify whatever jurisdictional laws and sanctions the Church has so carefully worked out?”[23]

       Moreover, the premise that “non-SSPX” faithful are in danger of spiritual death (whose souls are “read” by clerics who are not part of the Catholic Church) because they are in union with their bishops and don’t go to SSPX chapels, is essentially a denial of the Church’s attribute of indefectibility (not to mention a schismatic mentality), which guarantees that the Church’s “juridical mission” will never be so corrupted that it “will have need of extraordinary legates…to preserve His Church from corruptions.”[24]

       All this might be why Fr. Ramon Angles of the SSPX, in his canonical study of the validity of the Society’s confessions and marriages, rejected the attempt to interpret “danger of death” in canon 976 as analogous to spiritual death. In the words of Fr. Angles: 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.”[25] Evidently, the SSPX is either confused about or not united in support of this erroneous analogia legis.

       Thus, the SSPX’s appeal to the extreme cases of periculum mortis to justify its illicit ministry is another faulty analogy of law. 

Fr. Scott:  2) the general principles of canon law, which inspire the particular laws. The two principal ones are:

 

·        the salvation of souls is the highest law (NC 1752).

·        the Sacraments are on account of men. 

Indeed, the highest law is the salvation of souls and the sacraments are on account of men, but the Church regulates how the clergy are to go about their mission to save souls and administer the sacraments to men, in order to protect the common good of those in communion with Christ and His Church. The Church does not allow clerics without canonical mission to usurp the authority of those with canonical mission on the grounds of “the salvation of souls,” because such activities would not protect the common good of Catholics (outside of danger of physical death). 

Protecting and promoting the common good means protecting those communities who are in lawful communion with the Catholic Church (starting with their local bishops) and thus already enjoy the benefits of clerics with habitual jurisdiction in the first place. If the Church were to supply jurisdiction (outside cases of danger of death) to SSPX and other acephalous priests who operate outside the Church, this would actually harm the common good, by serving those who are laboring against the Church and her authority. Such would constitute a grievous attack on the unity of the Church, and therefore would serve to harm to the common good of Catholics. 

The SSPX argues that because the highest law of the Church is the salvation of souls, their ministries are necessarily protecting and promoting the common good. This argument is erroneous indeed. Because they work in opposition to the legitimate authorities of the Church (as Fr. Jonathan Loop recently admitted in Episode 44 of their Crisis series), they are elevating what they believe to be a “particular good” (serving those who come to their chapels) at the expense of the common good of true Catholics who are in union with the Church and their respective bishops.

Thus, far from achieving the common good of the salvation of souls, they are actually harming souls. The Society’s imparting of invalid absolutions and witnessing invalid marriages for countless thousands of people over the past 40 years, due to their erroneous belief that they enjoyed supplied jurisdiction, is one striking example of such harm. Moreover, the 1917 Code, which the SSPX relies upon as a guiding authority, strictly forbids a priest without jurisdiction from presuming to hear a confession, and punishes such “usurpation of jurisdiction” with an ipso facto suspension a divinis (c. 2366).[26] 

     Fr. Scott:      3) recourse equity. This is recourse to the mind of the legislator (when there is nothing explicit in writing), who never wants his legislation to be too onerous (burdensome), but always wants it to be interpreted in a just and favorable manner. 

       As we’ve already explained, the necessity of mission in the Church is a matter of divine law, not canon law (which only regulates mission). Hence, an appeal to “recourse equity” (based on the mind of the legislator of the Church’s canon law) on the ground that “there is nothing explicit in writing” in the “legislation” does not apply to mission. Neither the absence nor presence of something “explicit” in positive human law can circumvent the divine law, for the divine law foresees all things. Moreover, the legislator of the 1983 Code of Canon Law was Pope John Paul II, who did reveal his “mind” on the state of the SSPX, which he declared was a schismatic movement with no right to minister in the Church. Thus, the SSPX’s appeal to recourse equity to justify its ministry is another faulty analogy of law. 

Fr. Scott:  That it is indeed the mind of the Church to be generous in the granting of jurisdiction and not overstrict or onerous is also apparent from the following two canons: 

       Before we get to the two canons Fr. Scott is referring to, we must point out that his statement that the Church is “generous in the granting of jurisdiction” is false. The common opinion among traditional canonists is just the opposite, namely, that the Church’s granting of supplied jurisdiction is highly stringent and restrictive.[27] Miaskewicz notes that “the common opinion of the authors favors the necessity of the presence of a grave cause for the licit use of jurisdiction secured in virtue of common error.”[28] 

Miaskewicz also notes that even the more liberal canonists like Cappello (whom the SSPX cites in its “Canonical Study” on marriages and confessions) “still regarded this opinion [necessity of grave cause] as the more common and the more acceptable.”[29] It is simply fantasy to assert that the Church is “generous” and “not overstrict or onerous” in supplying jurisdiction to priests who have no mission in the Church (as even the more liberal canonists like Cappello would admit). 

Finally, as already mentioned, the SSPX’s appeals to supplied jurisdiction for all the acts they perform which do not require jurisdiction, but only mission, are completely misplaced and thus erroneous. 

Now, Fr. Scott cites the follow two canons as additional sources for his analogy of law: 

Fr. Scott:  OC 2261 §2 (NC 1335). The Church suspends its prohibition for an excommunicated or suspended priest celebrating the sacraments or posing acts requiring jurisdiction, provided it be in favor of the faithful who request it for any reasonable cause at all, and especially if there is no other minister. 

As I explained in my article refuting Fr. Tranquillo, canon 1335 in no way supports the SSPX’s argument that it can operate without mission, by any stretch of the imagination. Fr. Scott and the SSPX have failed to understand that this canon is not suppletory, that is, it does not provide to the priest what is lacking in order to administer a sacrament licitly and validly.  It doesn’t supply the faculties needed to licitly offer Mass, baptize, or preach, nor does it supply the jurisdiction needed to validly absolve.  Rather, the canon operates to remove that which currently prevents a sacrament from being licit or valid (i.e., a censure), which places the cleric in the state he was before incurring it.  If a latae sententiae censure has been declared, canon 1335 removes the censure only when administering to someone in danger of death. If the censure has not been declared, it is removed when the faithful ask for a sacrament, a sacramental, or act of governance for any just cause. 

What this means is that canon 1335 functions to put the cleric back to his pre-censured state. If, for example, the cleric with mission had faculties to hear confessions before he was censured, canon 1335 momentarily suspends the censure so that the priest can exercise his faculty upon a faithful’s just request, as he would have before, without scruple. However, if the cleric did not have the requisite faculties for a specific act (by virtue of canonical mission, incardination, or delegation), canon 1335 does not provide him with mission (for liceity) or jurisdiction (for validity) for the act, unless it is while administering to someone in danger of death. Outside of cases of danger of death, his acts would continue to be illicit. 

Thus, the SSPX’s appeal to canon 1335 to justify its ministry is a faulty analogy of law. Canon 1335, which protects the common good of the Catholic community, as well as priests who were in good standing (with mission, faculties) prior to incurring a censure, is not analogous to protecting a non-Catholic community who has recourse to priests with faculties but chooses to approach priests who never had a legitimate mission in the first place, on the pretext of a crisis in the Church. 

     Fr. Scott:      OC 878 §2 (NC 970). Ordinaries and superiors are not to restrict jurisdiction. If the priest is suitable and the good of the faithful requires his services this jurisdiction cannot be refused to him. Clearly traditional priests should in justice receive personal jurisdiction and that everywhere (NC 967). 

Fr. Scott’s appeal to these canons is also fallacious. First, while Fr. Scott assumes to explain that “ordinaries and superiors” are not to restrict jurisdiction, he and the SSPX have refused to place themselves under the legitimate “ordinaries and superiors of the Church,” and hence his argument is a non sequitur (in fact, the Church’s offer to the Society for a personal prelature would not have put the Society under the authority of the local ordinaries, but the Pope alone). 

Second, canons 967 and 970 do not stand for the proposition that “ordinaries and superiors are not to restrict jurisdiction” (and the canonical tradition says the opposite). These canons also have nothing to do with supplied jurisdiction. Rather, these canons address the extent to which the ordinary faculty of hearing confessions, which has been provided by the legitimate authority, can be exercised. 

For example, canon 967, §2 says: “Those who possess the faculty of hearing confessions habitually whether by virtue of office or by virtue of the grant of an ordinary of the place of incardination or of the place in which they have a domicile…”; canon 967, §3 says: “Those who are provided with the faculty of hearing confessions by reason of office or grant of a competent superior…”

The SSPX clergy do not possess the faculty to hear confessions either by virtue of an office or grant of the local ordinary (and only recently received the faculty by delegation from Pope Francis). More importantly, these delegated faculties to hear confessions and, with the approval of the local ordinary, witness marriages, do not provide the SSPX with canonical mission required to baptize, preach, say Mass, etc., such that all these other acts remain illicit (unlawful and forbidden by the Church). Again, the SSPX’s repeated appeals to supplied jurisdiction for acts that require mission and not jurisdiction are completely mistaken. 

Thus, the SSPX’s appeal to canons 967 and 970 to justify their ministry is a faulty analogy of law. These canons are intended to protect the common good of the Catholic community who is served by priests with ordinary mission from the Church, and hence are not analogous to protecting a non-Catholic community who has recourse to priests with faculties, but chooses to be served priests who never had a legitimate mission, on the pretext of a crisis in the Church. 

Fr. Scott:  It is clear that, given the present circumstances of crisis in the Church and the principles of Canonical Equity, given the general principles of the law, and the Church’s continuous practice of supplying jurisdiction for the good of the faithful whenever it foresees that this lack of jurisdiction would be to their detriment, traditional priests receive supplied jurisdiction from the law.

It is clear that, from the foregoing analysis, canonical equity does not apply to the SSPX because the principle cannot be used to circumvent the divine law, which requires clerics to have a juridical mission to lawfully minister in the Church. It is also clear that there no laws, principles of law or practices of the Church by way of analogy, which allow priests without mission to lawfully minister in the Church outside of danger of death. In limited circumstances, the Church supplies jurisdiction – but not mission – when “it foresees that this lack of jurisdiction would be to their detriment,” and so an appeal to these provisions, as well as the provisions themselves, are inapplicable to the SSPX.

Fr. Scott: This is with the understanding that personal jurisdiction is unjustly refused to them simply because of their attachment to the Faith and its traditional expression (inseparable from the Faith), and that the faithful cannot be expected to continually search out and judge for themselves which confessors in the Conciliar Church might be acceptable and might give them the spiritual advice they need (given that the vast majority do not). 

“Personal jurisdiction” has not been “unjustly refused” to the Society because of their attachment to the faith. Rather, the SSPX leadership has refused the Church’s offer of a canonical mission to make its ministry lawful because of its own doctrinal errors, beginning with its rejection of the Church’s Profession of Faith. As I explain in my rebuttal article to Fr. McFarland’s podcast,[30] while the Society claims an attachment to the traditional faith, it publicly holds erroneous doctrinal positions on ecclesiology, mission, jurisdiction, Collegiality, sacramental intention, as well as (as seen in Fr. Scott’s comments) a false notion of a “Conciliar Church,” which is independent from the Roman Catholic Church (an error that Archbishop Lefebvre also articulated in his May 24, 1988 letter to Cardinal Ratzinger to justify his illicit consecrations). While the Modernists in the Church have no doubt erred on the Left, the SSPX has certainly erred on the Right, especially with its claim that “traditional priests receive supplied jurisdiction from the law,” which has resulted in decades of invalid confessions and marriages in Society chapels. 

Fr. Scott:  In conclusion, therefore, it is obvious that, besides the case of common error, besides the case of probable and positive danger of death as interpreted in the broad sense of spiritual death, traditional priests receive a iure (from the law itself) a supplied jurisdiction for all cases in which this jurisdiction is required. This is simply the application of Canon 20, notably of Canonical Equity. There are no solid arguments against this and since there is at least a positive and probable doubt in favor of this argument, and we know that in such a case the Church certainly supplies jurisdiction, then traditional priests can and must act accordingly and the faithful can and should approach them for Confession. 

What is obvious is that Fr. Scott and the SSPX do not truly understand the canon laws that they marshal in support of their position, nor how they are applied according to the canonical tradition of the Church. Even this closing paragraph of Fr. Scott, directly above, is full of errors, which are: (1) common error does not apply to the SSPX; (2) common error does not supply for mission (only jurisdiction); (3) there is no such thing as “probable and positive danger of death” in canon law; (4) spiritual death is not analogous to physical death according to the Church’s jurisprudence; (5) priests do not “receive [supplied] jurisdiction a iure (from the law itself) but from the Church; (6) the Church does not supply jurisdiction “for all cases in which this jurisdiction is required[31]”; (7) canonical equity does not apply to the SSPX, as this article has demonstrated; (8) the claim that “there are no solid arguments against” the SSPX’s appeal to canonical equity is false and just the opposite is true, as this article has demonstrated; (9) “positive and probable doubt” is a canonical standard (c. 144) relating whether a priest has real and objective doubt about whether he has faculties, and not whether one “favors” a canonical or theological argument; (10) the Church does not supply jurisdiction to “traditional priests” because they are “traditional priests,” as Fr. Scott suggests; and, (11) the “faithful” who attend SSPX chapels are not considered the Catholic community whose common good the Church seeks to protect with supplied jurisdiction. 

To summarize what has been addressed above, the SSPX’s appeal to canonical equity to justify its illicit ministry is without merit for many reasons, including the following: 

·        Juridical mission is part of the divine positive law; canonical equity is of the human law, and cannot be used to circumvent the divine law;

 

·        Canonical equity is applied by legitimate interpreters of the law (those with offices or other official roles in the Church, unlike the clergy of the SSPX);

 

·        Canonical equity applies to particular cases, and cannot be generalized to Catholics en masse;

 

·        The Church’s attribute of indefectibility also guarantees that Catholics have recourse to legitimate pastors;

 

·        Because juridical mission is part of the divine law, there are no laws, principles of law, decisions of the Roman Curia or opinions of doctors which would legitimize a ministry without juridical mission (outside ministering to one in danger of physical death); and,

 

·        Canons concerning supplied jurisdiction (e.g., canons 144, 976), the scope of the ordinary faculty for confessions (canons 967, 970), sacramental sharing (canon 1335) and related canons do not provide valid analogies of law to the case of operating without juridical mission, which is contrary to divine law. 

          We pray that the Society of St. Pius X publicly renounces its doctrinal errors, including its fallacious appeal to “canonical equity,” to justify its illicit ministry. Abandoning its errors will be the first and necessary step for the Society to become part of the Roman Catholic Church, outside of which there is neither salvation nor remission of sins. And, then, God willing, to be granted a canonical mission, so its clergy can carry out the ministry of Christ according to the divine law and precepts that He Himself established.

 

 

 



[2]  John Beal, James Coriden, and Thomas Green, A New Commentary on the Code of Canon Law (New York: Paulist Press, 2000), p. 78.

[3] Another example regards the legal requirement to receive Holy Communion through the mouth. The law is silent about whether a person who could only ingest food and drink from a feeding tube could receive Communion that way. By an analogy of law, a bishop may conclude that the person could receive Communion through the feeding tube because they are receiving the sacrament through the mouth as the law requires. The case of a person who receives Communion through the mouth is in parallel with the case of a person who receives through the mouth via a feeding tube. The bishop could also consult decisions of the Holy See, which have granted indults for receiving Communion through stomach tubes (but not nasal tubes). See Beal, pp. 79-80.

[4] “Supplied Jurisdiction and Traditional Priests,” www.sspx.org.

[5] This argument is disingenuous. The SSPX leadership has refused the Church’s offer of a canonical mission, and their refusal is rooted in their own doctrinal errors on the Church’s ecclesiology (specifically with regard to collegiality, mission and jurisdiction). These errors led Pope Paul VI to legally suppress the Society in 1975, due in part to what he described as Archbishop Lefebvre’s “warped ecclesiology.”

[6] Mystici Corporis Christi, June 29, 1943, No. 54. Notice that Pope Pius XII describes the purpose of the “juridical mission” (Christ’s sending of the Apostles and their successors) to include not only acts which require the power of jurisdiction (or governance) (teaching, ruling, loosing, binding), but also acts which do not require jurisdiction, but only mission (baptizing, offering the Mass). That is because divine mission is the foundation of all priestly ministry, lawfully exercised, in the Church.

[7] Ibid., Nos 41-42 (emphasis added). In addition to “juridical mission,” Pius XII also teaches that the power of jurisdiction, similarly regulated by positive law, is also rooted in divine law: “But the power of jurisdiction, which is conferred upon the Supreme Pontiff directly by divine rights, flows to the Bishops by the same right, but only through the Successor of St. Peter.” Ad Sinarum Gentem, October 7, 1954, No. 12.

[8] Council of Trent, On the Sacrament of Orders, Session 23, Canon VI (July 15, 1563).

[9] Pope Innocent III, Cum ex injuncto, 1199. For more on this topic, see John Salza’s article “Does the SSPX Have an Extraordinary Mission?, November 2021, www.trueorfalsepope.com.

[10] Pope Benedict XIV, Beatifications and Canonizations, “On Heroic Virtue”, Chapter viii; quoted in the Catholic Encyclopedia (1913) Vol. XII, p. 474-475. In the cited quotation, Pope Benedict is paraphrasing the teaching of Cardinal Cajetan.

[11] Beal, p. 79.

[12]www.splendorofthechurch.com/2021/05/10/cardinal-burke-sspx-not-part-of-roman-catholic-church-has-schismatic-position.

[13] A brief survey of the Church’s recent advisory opinions on the SSPX, not surprisingly, reveals adverse judgments, such as Advis. Op. 2012-67, “SSPX person is Catholic in schism, sacraments attempted by SSPX priests needing faculties are null.” Roman Replies and CLSA Advisory Opinions, cited in Beal, p. 80.

 

[14] For more on this topic, see John Salza, “Do Sedevacantist and other Independent Clergy Receive Supplied Jurisdiction?,” www.trueorfalsepope.com.

[15] The Roman Rota has described common error as: “In the practical order, common error exists whenever there is publicly placed a fact from which, if it were known by the community in question (e.g., a parish), all or nearly all would prudently think that power to assist at marriage belongs to a specified priest or deacon who as a matter of fact lacks it.” (Rota, decision, December 11, 1972; reported in Periodica, 63 (1974), pp. 459-462).

[16] Miaskiewicz, “Supplied Jurisdiction According to Canon 209, “p. 168.

[17] Ibid. p. 278 (emphasis added).

[18] Ibid., p. 228 (emphasis added).

[19] Note that there is a distinction between error and ignorance. Error requires the possession of some knowledge of the subject whereas ignorance implies the absence of knowledge. Common error, then, requires that the community form a judgment (here, whether the cleric has ordinary faculties) based on some knowledge. If the community is incapable of making a judgment due to ignorance of the subject matter (which would usually be the case because few Catholics actually know the difference between habitual vs. supplied jurisdiction), there can be no common error (only common ignorance). Further, because canon 15 §2 presumes knowledge of canonical penalties (the SSPX’s suspension a divinis) in the external forum, the law of the Church legally prevents the application of supplied jurisdiction to SSPX clergy.

[20] We note the distinction between ordinary and habitual jurisdiction. Ordinary power is generally habitual, but not all power exercised habitually is ordinary. A parochial vicar may have the habitual faculty to hear confessions, but it is not an ordinary power, rather it is delegated by the ordinary of the diocese.

[21] We note that before Vatican II priests were generally said to have ordinary or habitual jurisdiction. Since Vatican II, the term “ordinary faculties” is more commonly used. In this article, I use “ordinary jurisdiction” and “ordinary faculties” as synonymous terms.

[22] As Miaskiewicz says, “For, in the case of common error the intention of the legislator is to forestall a common loss or a peril to the common good when it is certain that the priest performing some act has not the jurisdictional competency required by the law for validity.” Miaskiewicz, p. 225 (emphasis added); and, “Moreover, it is universally admitted that the Church supplies in common error solely to protect the common good.” Ibid., p. 178 (emphasis added).

[23] Ibid., p. 237.

[24] Christ’s Church, pp. 154-155.

[25]“Validity of SSPX’s Confessions and Marriages,” by Fr. Ramon Angles, Part II, www.sspx.org/en/validity-sspxs-confessions-marriages, Part 2, Sec. 4.2 Notions, (emphasis added).

 

[26] Ibid., p. 301.

[27] While they are too numerous to mention, these canonists would include Aertnys-Damen, Versmeech, Jombard, Caviglioli, Miaskewicz, Kearney and Coronata, among others.

[28] Miaskewicz, p. 293.

[29] Ibid.

[30] See John Salza, “The SSPX Rejects all Church-Approved Traditional Groups,” November 2021, www.trueorfalsepope.com.

[31] Miaskewicz says: “…it does not follow that the Church supplies in all those cases in which she can supply…And it is to be noted that in each and every case wherein the Church makes special provisions, as in the canons just mentioned above, she indicates that she wants it to be understood very clearly that she actually does not intend to supply in any and all cases…” p. 145. He also says: “But while the Church manifests a willingness to aid the priest in such difficulties, there is no justification in canon 209 for condoning excessive latitude and for making too much allowance for the error of the priest, as shall be seen presently” p. 178. He further says: “Though common error in the strict, traditional sense is possible, it is not verified as easily as many authors are wont to think. For the suppletory principle is for emergency situations. Canon 209 is not intended as an ubiquitous law nullifying the force of all invalidating laws” p. 311.

 

2 comments:

Unknown said...

When did Salza and Siscoe start attacking the SSPX? Didn't the SSPX publish their book? Bishop Fellay wrote the foreword right? What happened?

Anonymous said...

If you can find the time, it would be great if you could review the following book for us: 'True Obedience in the Church: A Guide for Discernment in Challenging Times'(by Dr Kwasniewski). Thanks