Do Sedevacantist and
Clergy Receive Supplied Jurisdiction for Confessions?
John Salza Responds to Fr. Tranquillo, SSPX
Part II of a Two-Part Series
John F. Salza, Esq.
In the first installment, we examined recent statements made by Fr. Mauro Tranquillo, SSPX in an interview given for the Society of St. Pius X’s Crisis in the Church series (Episode 34), in which Fr. Tranquillo claimed that Sedevacantist priests receive supplied jurisdiction for confessions even for those not in danger of death, on the ground that we are in a “state of necessity.” We demonstrated that Fr. Tranquillo makes an erroneous extrapolation of the suppletory principle by extending its application from extreme cases of danger of death to cases where there is no danger of death, which has no basis in canon law or the canonical tradition of the Church.
We further showed that common error, which is another condition that triggers supplied jurisdiction, also does not apply to Sedevacantist and other independent clergy, because a Catholic community would not believe that such clergy have ordinary jurisdiction or were sent by the local bishop. In this second installment, we shall further look at common error, and the other condition that triggers supplied jurisdiction, positive and probable doubt, and explain why this condition also does not apply to Sedevacantist and other clergy without a canonical mission.
Common Error and Colored Title
Prior to the codification of the 1917 Code of Canon Law, the Church’s canonists commonly taught that an additional condition was required before jurisdiction would be supplied on the ground of common error. That condition was a “colored title” (titulus coloratus). A colored title is a title of authority that a superior (e.g., a bishop) attempted to legally confer upon a subject (e.g., priest) but that was invalid due to some technicality. Miaskiewicz explains color of title as follows: “Technically it denoted a title which was actually, though for some reason invalidly, conferred by a legitimate superior competent to confer it.” He also writes: “Thus, it may be concluded that there was no dispute before the appearance of the Code on the point that common error in regard to someone’s possession of jurisdictional power, before it could come into being, postulated the existence of some sort of a title.”
Now, neither canon 209 (1917 Code) nor canon 144 (1983 Code) specifically mention that a colored title must accompany common error in order for jurisdiction to be supplied. In light of this absence in the 1917 Code, Miaskiewicz concedes that “The Code by its silence settled the controversy in the negative.” However, even though canon law may no longer explicitly require a colored title along with common error, Miaskiewicz explains that many canonists still require at least an apparent title, that is, a title that is believed to have been conferred by legitimate authority (e.g., by the local ordinary):
However, today, as in the days of Billuart, common error is scarcely conceivable without some apparent title. That consideration has prompted certain authors, like Ferreres and Pruemmer, who admit that the Code no longer requires a colored title, simultaneously to maintain that in practice common error cannot be verified unless and until there be present at least some apparent title.
He goes on to explain that some authors still insist on the need for colored title, not merely apparent title:
Certain other authors, like Cocchi, go even further. They claim that, despite the theoretical non-necessity of a colored title, in practice error cannot be common unless a colored title be present. In regard to such claims Wernz-Vidal admit that in the exercise of some jurisdictional power, such as the exercise of ordinary power in the external forum, it may be difficult for common error to be verified without the presence of a colored title.
Of course, whether or not a colored or other kind of title must accompany common error for the Church to supply jurisdiction outside of danger of death is not relevant to Sedevacantist and other independent priests who have no canonical mission (i.e., they have not been sent by the local bishop). First, because common error does not apply to their sects, as already demonstrated in Part I of this series; and second, because their priests do not even claim to have any kind of title to a legitimately established office. To the contrary, Sedevacantist clergy publicly proclaim they are operating without any kind of title from the “Conciliar Church,” otherwise known as the Roman Catholic Church.
§2: The Law Presumes
Knowledge of Notorious Facts
As we have demonstrated, for supplied jurisdiction to apply to Sedevacantist priests on the ground of common error, the majority of the Catholic community (e.g., the territorial parish in which the Sedevacantist chapel is geographically located) in which the Sedevacantist priests illicitly function would have to conclude that these priests were given faculties by the local diocesan bishop (and, most likely, that these priests also had some kind of legitimate title). That, of course, is impossible, but not only for the reasons already explained. It is also impossible because the law itself makes it so. Why? Canonist John Huels explains:
Again, the faculty is supplied only for a priest in good standing. If the priest no longer has his faculty due to an act of the external forum (the imposition or declaration of a censure, the revocation of the faculty, the loss of the clerical state), or if the priest is not in full communion with the Church, the faculty is not supplied. The law presumes knowledge of such external forum facts, even if they are not really known. Such a priest may validly celebrate the sacrament of penance only for someone in danger of death (c. 976)
In asserting that the law presumes knowledge of a loss or absence of faculties due to an act in the external forum, Mr. Huels is relying upon canon 15, §2 of the 1983 Code which provides:
Ignorance or error about a law, a penalty, a fact concerning oneself, or a notorious fact concerning another is not presumed; it is presumed about a fact concerning another which is not notorious until the contrary is proven.
In other words, when the absence of faculties for a cleric is due to his notoriously irregular or non-canonical status (“not in full communion with the Church”; “not in good standing”) or a canonical penalty (e.g., a censure) – which is necessarily the status of Sedevacantist priests – the cleric’s non-canonical status is presumed to be known in the external forum as a matter of law. And because this knowledge of the cleric’s status is presumed, it is impossible that there could be common error about his possession of habitual jurisdiction which would trigger supplied jurisdiction. That is why such priests can only absolve in danger of death.
Moreover, even though the law presumes knowledge of notorious facts and external canonical penalties, those of the Sedevacantist sects actually know in fact that their priests lack faculties. This knowledge not only eliminates the possibility of common error in Sedevacantist communities but, as we have seen, is a disposition in the penitent that serves as an obstacle to the valid reception of absolution when the suppletory principle would otherwise apply.
We thus see another reason why common error does not operate to supply jurisdiction to Sedevacantist and other clergy who have not been sent by the Church. Those priests who hear confessions without faculties not only gravely harm the souls of their penitent victims by giving them invalid absolutions, but they also incur the latae sententiae penalty of suspension whenever they hear confessions (although Sedevacantist priests are already excommunicated from the Church and ipso facto infamous for belonging to a non-Catholic sect).
As Cardinal Billot wrote about those clergy who celebrate the sacraments without a canonical mission:
Hence, if perchance true sacraments be found in the sects, they are not in them except as goods belonging to another, which cannot profit to the salvation of anyone who receives them in full awareness of the facts as long as the error of separation or schism remains uncorrected. Moreover, the sects as such are called the synagogue of Satan, whose heads are antichrists, as is stated in 1 John ii;18 et seq. so it is impossible that they should legitimately hold goods entrusted by Christ to the Church.
Positive and Probable Doubt of Fact or Law
The other ground on which the Church supplies jurisdiction is the situation in which there is a positive and probable doubt about a fact or a law. Sedevacantist clergy also falsely claim supplied jurisdiction for themselves based on this canonical ground. The purpose behind this ground is completely different from that of common error. One might say that with respect to common error, the purpose is to primarily protect the common good of the community, whereas for positive and probable doubt of fact or law, the purpose is to primarily protect the priest (but in view of protecting the common good as well). Thus, this ground is generally understood to apply to those cases in which the priest has a real and objective doubt about whether he has faculties, or whether the faculties he possesses would apply to a particular case, based upon his interpretation of the facts or law.
Miaskiewicz explains: “In the case of probable and positive doubt it is not clear that the priest lacks jurisdictional competency in the matter in question. When positive and probable arguments are present to indicate the possession of the required jurisdiction, the Church supplies because she wishes to render the minister of the jurisdictional power secure and free from undue worry and anxiety.” He also says: “From the very nature and circumstances of doubts, from the very fact that they can arise in the most private conditions, as, e. g., in the confessional, it becomes quite clear that, though this part of the canon is in no way intended to harm the common good, still it was formulated especially in favor of the priest, to make more remote the possibility of anxieties and scruples, and to afford him an authorized reflex principle by which practical certitude can be attained when he is confronted with doubts arising from the theoretical interpretation or the practical application of a law.”
As stated above, the doubt may be either about the law or about a fact. Doubt is a state in which the mind is not able to make a decision between two contradictory conclusions based on the evidence at hand. The doubt is positive when there are probable reasons for one or both decisions (as opposed to negative doubt, when there is insufficient information to support either decision). The doubt is probable when it rests upon serious and objective motives (as opposed to purely subjective ones). A doubt of law exists when there is uncertainty about its existence, meaning, force, extension or cessation (for example, a priest who is asked to hear the confession of a woman religious has a doubt about whether he needs jurisdiction from the bishop of the place the confession would be heard or from any bishop). A doubt of fact exists when there is uncertainty about whether a situation contains all that is necessary for the law to be applied to it (for example, a priest who has a doubt about when his faculties in a certain diocese will expire).
Now, while much has been written in theological commentaries about positive and probable doubt of fact or law as a basis for supplied jurisdiction, there is no need to do that here, because the provision is prima facie inapplicable to Sedevacantist clergy. To state the obvious, a Sedevacantist priest will not have any doubt, much less positive and probable doubt, about whether he, legally or factually, has ordinary faculties from the bishop of the diocese in which he illicitly functions. Remember, the doubt has to be whether the Sedevacantist priest has jurisdiction. Of course, all Sedevacantist 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.
One Last Ditch Effort – Canon 1335
There is one final canon to which Sedevacantists and others appeal to claim supplied jurisdiction for themselves. That is canon 1335. One traditional priest wrote:
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.
Does canon 1335 really allow a priest without faculties to hear confessions validly and licitly, so long as the faithful asks for the sacraments for any just cause (and not just danger of death)? On its face, of course, the notion seems absurd, for if supplied jurisdiction could be triggered “for any just cause whatsoever,” ordinary jurisdiction would be practically meaningless and, as Miaskiewicz remarked, all the jurisdictional laws and sanctions that the Church has carefully worked out would be nullified. Let’s see what the canon actually says.
Canon 1335 provides:
If a censure prohibits the celebration of sacraments or sacramentals or the placing of an act of governance, the prohibition is suspended whenever it is necessary to care for the faithful in danger of death. If a latae sententiae censure has not been declared, the prohibition is also suspended whenever a member of the faithful requests a sacrament or sacramental or an act of governance; a person is permitted to request this for any just cause.
What to make of this canon? The critical point is that the 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 (and note that some Sedevacantist clergy have been subject to such declared censures, which Fr. Tranquillo did not mention). 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 had a canonical mission and 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 faculties to hear confessions before he was censured, canon 1335 does not provide him with mission (for liceity) or jurisdiction (for validity) to hear confessions, unless it is while administering to someone in danger of death. Notwithstanding the claims of some traditional priests, because Sedevacantist and certain other independent clergy do not have ordinary faculties to hear confessions, canon 1335, which merely operates to temporarily suspend censures for a given act, in no way provides what is necessary for these priests “to act validly and almost always licitly.”
We no doubt find ourselves in one of the most difficult times in Church history. The Church is suffering her Mystical Passion like Christ did on Good Friday, and has become disfigured and in many aspects unrecognizable, like the suffering Christ. Men of good faith are looking for answers and solutions to the crisis. But Holy Mother Church knows how to care for her children. The current crisis does not require us to reinvent the canonical tradition or reinterpret the laws of the Church in novel ways, not heretofore seen. Rather, authority and jurisdiction become even more important in times of crisis, as in warfare (and we are in a spiritual war first and foremost). God is permitting this crisis to test the faith of the faithful. Those will pass the test who remain at the foot of the Cross, like Our Lady, and not flee the Cross like almost all the rest. We are to remain within the legal structure of the Church, and not seek solutions or spiritual consolations outside of her. We must fight the fight from within.
The reality is that, during this crisis, many clergy among the traditionalist movement, even with the best of intentions, have been misleading their flock with erroneous arguments on matters of jurisdiction for many, many years. And, in doing so, they have been giving their penitents invalid absolutions and witnessing invalid marriages (and incurring canonical penalties) the entire time. Some have even appealed to “danger of death” cases to justify engaging in other acts of governance such as annulling marriages, dispensing sacred vows and lifting excommunications and other censures. This perversion of the Church’s teaching on supplied jurisdiction has not only been an attack on the unity of the Church, but has been detrimental to the common good and even more so to the salvation of countless souls. We pray that those who have been misled are able to get to legitimate confessors with actual faculties, so they can be forgiven of their sin and restored to grace.
 Ibid., p. 109.
 Ibid., p. 111. To highlight the Church’s emphasis on the necessity of a colored title before the 1917 Code was enacted, we read in a book published in 1908 an example of a priest (Fr. Caius) who received from his bishop jurisdiction to hear confessions in another parish for a single day. Suddenly the parish priest falls ill and asks Fr. Caius to stay another day in the parish to hear confessions, and tells him he will delegate jurisdiction to him for the extra day of confessions. Even though Fr. Caius lawfully and validly heard confessions in the diocesan parish on the first day, the canonist concludes that the absolutions given by Fr. Caius on the second day were at least doubtful, if not invalid, because Fr. Caius did not have a colored title, but only a putative title. The Casuist – A Collection of Cases in Moral and Pastoral Theology, Volume II, New York: Joseph Wagner, 1908, (Ignaz Rieder, D.D., pp. 219-224). This is because, under the pre-1917 Code jurisprudence, a parish priest could not delegate another priest who had approbation and jurisdiction in another diocese, to hear confessions (note that “approbation” was subsumed under jurisdiction in the 1917 Code; see also canon 970 of the 1983 Code). Such delegation had to come from the local bishop (“approbatio per Episcopum loci”). Thus, because of this legal technicality (there was no lawful attempt to delegate jurisdiction to Fr. Caius that would give rise to a colored title), the parish community could not be in “common error.” This demonstrates how restrictive the Church has always viewed supplied jurisdiction. As Miaskiewicz remarks: “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 also 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.
 Miaskiewicz, p. 111. While Miaskiewicz seems to suggest the matter is settled, he also properly notes that if there is a doubt about whether the 1917 Code differs from the ancient law, the ancient law (here, requiring a colored title) must be followed. He says “in accordance with the prescripts of canon 6, nn. 2-4, the old interpretation of this doctrine must be followed unless strong textual or contextual evidence can be adduced to show that the legislator intends to abandon or to alter the pre-Code understanding and application of the suppletory principle” p. 113 and “This canon [canon 6] further states in n. 4, that in the event of a doubt as to whether the canon in the Code differs from the ancient law the old law must be upheld” p. 132.
 A colored title is a title that was attempted to be lawfully conferred by legitimate authority; an apparent title is a title that appears legitimate, but was not conferred, or even attempted to be conferred, by legitimate authority.
 Ibid (emphases added).
 Huels, John M., J.C.D., Empowerment for Ministry: A Complete Manual on Diocesan Faculties for Priests, Deacons and Lay Ministers, New York: Paulist Press, 2003, p. 64 (emphasis added).
 1917 Code, Canon 2314: § 1. All apostates from the Christian faith and each and every heretic or schismatic:..3.° If they give their names to non-Catholic sects or publicly adhere to them, they are by that fact infamous, and with due regard for the prescription of Canon 188, n. 4, clerics, the previous warnings having been useless, are degraded.” Also see 1378, §2, º2 (1983 Code) and 2366 (1917 Code). Miaskiewicz is clear that the text of canon 2366 intends to penalize the usurpation of penitential jurisdiction by “a priest who without possessing penitential jurisdiction presumes to hear sacramental confessions. It does not matter for what reason the confessor lacks the necessary jurisdiction. Perhaps it was never conferred upon him, or perhaps he lost it. Perchance it does not extend to the territory in which he uses it, or to persons over whom he exercises it, as for example, when he hears the confessions of women religious without the required special delegation.” p. 301.
 Miaskiewicz, p. 225 (emphasis added).
 Ibid., p. 178 (emphasis added).
 A doubt of law is intrinsic if the probability is founded solely upon the careful and detailed examination of the problem by one who is a subject matter expert in the legal area in question, which is beyond the competence of the ordinary priest or confessor. A doubt of law is extrinsic when the probability is based on the authority of others who are very learned in the area. An opinion is extrinsically probable because of a public probability when at least five or six approved experts of great name independently support the opinion (as opposed to private probability based on the opinion of a single learned scholar, a scenario which is almost universally opposed by canonists as a legitimate basis for ecclesia supplet).
 “Validity of SSPX’s Confessions and Marriages,” by Fr. Ramon Angles, Part III. www.sspx.org/en/validity-sspxs-confessions-marriages.