Do Sedevacantist and
other “Independent”
Clergy Receive Supplied Jurisdiction for Confessions?
John Salza Responds to Fr. Tranquillo, SSPX
Part II of a Two-Part
Series
John F. Salza, Esq.
August 2021
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.”[32] 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.”[33]
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.”[34] 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:[35]
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.[36]
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.
Canon 15,
§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)[37]
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).[38]
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.[39]
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.”[40] 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.”[41]
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).[42]
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.[43]
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.”
Conclusion
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.
_______________________________
[32]
Ibid., p. 109.
[33]
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.
[34]
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.
[35] 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.
[36] Ibid
(emphases added).
[37]
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).
[38] 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, ยบ2 (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.
[40]
Miaskiewicz, p. 225 (emphasis added).
[41]
Ibid., p. 178 (emphasis added).
[42] 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).
[43]
“Validity
of SSPX’s Confessions and Marriages,” by Fr. Ramon Angles, Part III. www.sspx.org/en/validity-sspxs-confessions-marriages.
