Do Sedevacantist Clergy Receive Supplied Jurisdiction? Part I

 

Do Sedevacantist and other “Independent”
Clergy Receive Supplied Jurisdiction for Confessions?
John Salza Responds to Fr. Tranquillo, SSPX

 

Part I of a Two-Part Series

John F. Salza, Esq.
August 2021

 

        A few weeks ago, in Episode 34 of the Society of St. Pius X’s Crisis in the Church series, Fr. Mauro Tranquillo of the SSPX was interviewed on the subject of Sedevacantism. In the interview, Fr. Tranquillo attempted to highlight a contradiction in the Sedevacantist position. After correctly explaining that all ordinary jurisdiction (i.e., power of governance) in the Church comes through the Pope, Fr. Tranquillo made some troubling statements. He began by positing that there must be bishops with ordinary jurisdiction in order for the Church to supply jurisdiction (to clerics without the ordinary power). He then argued that if there has been no Pope for six decades (as the Sedevacantists maintain), then the Sedevacantist clergy would not enjoy supplied jurisdiction, since there would no longer be any living bishops who receive their ordinary authority from a Pope, from whom supplied jurisdiction is derived as its source. Consequently, says Fr. Tranquillo, the Sedevacantists have no explanation for how they can receive supplied jurisdiction if they deny that we’ve had a Pope for the past six decades. Fr. Tranquillo was careful to ensure the host that Sedevacantist clergy do indeed receive supplied jurisdiction from Pope Francis, even though they don’t realize it. 

            Here are a couple direct quotations from Fr. Tranquillo’s one-hour interview:

 

Tranquillo: “They [Sedevacantists] cannot explain where this jurisdiction is from for them. Of course, we say that obviously if they are priests, they [Sedevacantists] can confess in the case of necessity which is everywhere now, because it is general today, and they [Sedevacantists] can confess, receiving jurisdiction from Pope Francis, even if they don’t want to, but that is the reality.”


Host: “And just to be clear, Father, can I say, and I’m assuming here, you’re not saying that confessions done by priests who are Sedevacantists are invalid. You’re not saying that…”  

 

Tranquillo: “No, no, no. Absolutely not.”

 

Host: “You’re saying that there is a logical flaw that they are missing when they make this [Sedevacantist] argument.”


Tranquillo: “…I’m saying that they [Sedevacantists] cannot explain where their jurisdiction to confess comes from. It comes to every priest in the state of necessity. Even a heretical priest, a Sedevacantist priest, priest of the Society, and every priest, not having it usually, receives jurisdiction in the moment of the danger of death, for example. The question is, by whom, and they have not an answer. Obviously, they [Sedevacantists] can confess also, but we know where their [Sedevacantists] jurisdiction is from because we believe there is a hierarchy, a Modernist hierarchy, but it exists. They [Sedevacantists] cannot say where they have jurisdiction from, unless they say that it comes from Our Lord.”[1]

 

        While it is true that the Church supplies jurisdiction to even an excommunicated priest to hear the confession of someone in danger of death (periculum mortis), it is not true that supplied jurisdiction “comes to every priest in the state of necessity.” With due respect to Fr. Tranquillo, he 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, on the ground of “necessity,” and which he does not define. 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) has no parallel to cases where a person is not in danger of death and thus has recourse to priests with the proper faculties. Hence, an analogy of law (analogia legalis) between the two situations cannot be made.[2]

       While we do not seek to downplay the current crisis, the Church’s canon law and the entire canonical tradition provide that the Church supplies jurisdiction to priests who lack the ordinary faculty for confession in only three scenarios: (1) danger of death; (2) common error; and, (3) positive and probable doubt (more on this later). There is no fourth category of a generalized and ongoing “state of necessity” triggering supplied jurisdiction.

       Fr. Miaskewicz, an authority often cited by Sedevacantists because he wrote an extensive dissertation on canon 209 in 1940, highlights how restrictive the Church’s rules are on supplying jurisdiction. He notes that “it does not follow that the Church supplies in all those cases in which she can supply. The Church supplies exclusively in those cases in which she expressly, or at least tacitly, manifests her will to supply.”[3] He goes on to say that “in those cases outside the danger of death, which are often adduced in discussion as so critically important for the penitent etc., and which are argued to be important enough for the Church to relax her rules, those who urge that the Church make such extraordinary provisions [e.g., based on “necessity”] could much more easily procure the necessary jurisdiction or prevail upon individuals to approach some other priest already empowered and capable of attending to their difficulty.”[4]

 

A Generalized “State of Necessity”

does not Supply Jurisdiction

 

       The Church uses the word “necessity” (Latin, necessitate) 41 times in its Code of Canon Law, and it never once applies it to supplied jurisdiction. The word is used in the canons to address those situations in which the minister has ordinary (habitual) jurisdiction, which Sedevacantist clergy do not have.[5] Interestingly, the Church does not even use the word “necessity” in the specific canon granting priests without faculties the jurisdiction to absolve someone in danger of death (canon 976).[6] There is simply no such thing as a generalized and ongoing state of necessity in canon law or the canonical tradition in which the Church supplies jurisdiction to priests who lack ordinary jurisdiction. (I will highlight additional errors of the necessity argument later in the article.)

       If such a generalized category of “necessity” did exist that actually triggered supplied jurisdiction, it would open the door for those clergy without a canonical mission (i.e., those not sent by the Pope or legitimate bishops), to legitimately operate independently of (and in opposition to) the local ordinaries on the pretext of “necessity.” This scenario would result in the absurdity of such priests having personal, “super-extraordinary” powers, not limited by territory or type of act, and without regard to the local ordinaries.[7]

        Fr. Tranquillo’s claim that “every priest” enjoys supplied jurisdiction in a “state of necessity,” including Sedevacantist and other clergy who are not part of the Catholic Church (and who even openly attack the Church), is both erroneous and dangerous, especially in the current environment we are in. Pope Francis’ ongoing assault on the faith, including his unjust and imprudent motu proprio Traditionis Custodes, may very well drive some Catholics out of the Church and into Sedevacantist chapels where they will assist at illicit traditional Masses (which the Church has always taught is a sacrilege[8]) offered by priests with no faculties to say Mass or hear confessions. Notwithstanding the claims of Fr. Tranquillo, these confessions would be invalid, as further explained below.

       Because of the current situation in the Church and the timing of Fr. Tranquillo’s comments, addressing this question of supplied jurisdiction is critically important for the good of souls. Let us now address the other two conditions that trigger supplied jurisdiction (common error and positive and probable doubt) and see why they also do not apply to the confessions of Sedevacantist priests and bishops. Fr. Tranquillo did not address common error or positive and probable doubt in the interview in question, but they are both frequently appealed to as conditions that would supply jurisdiction to Sedevacantist clergy.

 

Common Error

 

       The Church’s jurisprudence on supplied jurisdiction developed over the centuries and was eventually codified into the 1917 Code of Canon law. Canon 209 provides: “In common error or in positive probable doubt whether of fact or law, the Church supplies jurisdiction both for the external and the internal forum.” Canon 144, §1 of the 1983 Code provides the same. It reads: “In factual or legal common error and in positive and probable doubt of law or of fact, the Church supplies executive power of governance for both the external and internal forum.”

       Like Fr. Tranquillo, Sedevacantist John Lane is also confident that the Church always supplies jurisdiction to Sedevacantist clergy on the grounds of common error. He writes:    

 

[I]n my experience priests do not seem to be well informed of these matters. The general outlook could be summarised as, “I've been told I have supplied jurisdiction for confessions so they will be valid,” and that’s that. Their understanding of why this might be is frighteningly inadequate. Fortunately, Canon 209 steps in and solves the problem because (largely due to the attitude of our priests) there is always common error in trad circles, so the confessions are valid for that reason if no other![9]

 

        Unfortunately for Mr. Lane, canon 209 (and its related canon 144) does not provide supplied jurisdiction to Sedevacantist clergy on the basis of common error. Common error exists when the majority of a community would conclude that the priest in question has habitual jurisdiction authorized by the local ordinary,[10] which Sedevacantist clergy admit they do not have. Fr. Miaskiewicz explains, “the error must be concerning the habitual power of jurisdiction of someone.”[11] 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.”[12] 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.[13] As we can see, the error[14] that the community must make is that their priest has habitual,[15] not supplied, jurisdiction, and such habitual jurisdiction would obviously only be enjoyed by a legitimate pastor (that is, an incardinated and deputized priest) or the local bishop (with a canonical mission).[16]  

Common Error does not Apply

to Sedevacantist Communities

 

         As applied to the Sedevacantist argument, their communities would not err in believing their clergy have ordinary jurisdiction. In fact, practically all Sedevacantists know their clergy do not have ordinary faculties, since they readily admit it.[17] And to anticipate their facile objection, the Sedevacantists are also wrong to believe that common error regards whether the members of their sect believe their priests have supplied jurisdiction. This is incorrect as we have seen (the error must be that they have habitual jurisdiction).[18] Ironically, the “common error” among Sedevacantists, and others, is that their priests will enjoy supplied jurisdiction even though everyone knows they lack faculties, or habitual jurisdiction. Therefore, contrary to John Lane’s confident assertions, “common error” can never exist in Sedevacantist chapels.[19]

      But it gets worse, because the Sedevacantists actually misapply common error to their sectarian communities. The Sedevacantist community 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 Sedevacantist priest operates).[20] In other words, it is the local Catholic community who would have to make the erroneous judgment that the Sedevacantist priest who has set up shop in their 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 vagus clerics, whose non-Catholic sects are set up in opposition to the Catholic community, even if those who attend their illicit Masses mistakenly believe they possessed habitual jurisdiction.[21] 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.”[22]  He also says, “Moreover, it is universally admitted that the Church supplies in common error solely to protect the common good.”[23]

       As applied here, the common good means protecting those communities who are in lawful communion with the Catholic Church 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 Sedevacantist 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. As Fr. Miaskiewicz rhetorically asks: “Would not such a practice nullify whatever jurisdictional laws and sanctions the Church has so carefully worked out?”[24]

 

Common Error and the Example

of the Visiting Priest

 

       This is why the classic theology manuals explain supplied jurisdiction by often referring to the case of a priest believed to be new or visiting, who comes to a diocesan parish to hear confessions. A majority of, if not the entire parish, would certainly conclude that he was sent by their bishop with the authority to hear their confessions, since the priest comes to a parish that is known to be in union with the local bishop. Fr. Miaskiewicz illustrates: “For example, if a simple priest arrives in a parish and is commonly regarded as duly authorized to hear confessions, there can be no doubt that all of his absolutions are valid in virtue of canon 209, even though in reality he does not possess the necessary faculties.”[25]

        Miaskiewicz also uses the example of the arrival of a new pastor at the diocesan parish, again underscoring the legitimate canonical status of the community that errs: “In other words,” writes Miaskiewicz, “supposing that X is falsely, but commonly, regarded to be pastor of parish Y, one concludes that all parochial jurisdictional activity of X is valid because of the operation of the suppletory principle. For when the people erroneously consider X as legitimate pastor, there is an implicit, if not an explicit, judgment on their part that X, in view of his title as pastor, can perform all properly parochial functions.”[26] Again, Miaskiewicz and others use examples of a pastor of a diocesan parish because those communities are the ordinary beneficiaries of habitual jurisdiction, to which supplied jurisdiction is intended to apply, in service of the common good of Catholics (not the “common good” of Sedevacantist sects who have set up shop in opposition to the Church’s authority). 

 

More on Necessity and the Crisis in the Church

 

        Just as we have seen with Fr. Tranquillo’s statements, Sedevacantist priests are also quick to reply that their priestly functions are justified on the ground that the Church is in crisis and we are in a state of “necessity.” As we have previously noted, this argument has no basis in the Church’s canonical tradition.  Moreover, the subjective assessment by a priest of a “state of necessity” is not relevant to whether common error about his faculties objectively exists among the Catholic community to trigger supplied jurisdiction for an act that requires it. It should also be noted that most Catholics have recourse to traditional Catholic ministers with faculties (like the priests of the Institute of Christ the King or the Fraternity of St. Peter), and not just Novus Ordo priests. As Miaskiewicz explains, outside cases of danger of death, where an irregular priest may be the sole means of salvation for a particular soul, the Church’s refusal to supply jurisdiction is easily remedied by recourse to legitimate pastors:

 

Outside such danger of death the difficulty besetting an individual because of the refusal of the Church to supply in a given case is never such as is not easily repaired. Especially in the sacrament of penance it should not be forgotten what an important role indirect absolution can play.[27]

        Sedevacantist clergy also argue 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 also erroneous. Because they work in opposition to the legitimate authorities of the Church (even warning their flock to have nothing to do with them), these schismatic priests are elevating what they believe to be a “particular good” (hearing the confessions of 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. Their imparting of invalid absolutions to countless thousands of people over the past 40 years, due to their erroneous belief that they enjoy supplied jurisdiction, is one striking example of such harm. Moreover, the 1917 Code, which the Sedevacantists claim to follow, 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).[28]

 

Common Error and Knowledge of the Defect

 

       There is one last important point to mention on the matter of common error. Even in real cases of common error where the Church supplies jurisdiction (e.g., a majority of those in the diocesan parish believe a visiting priest who is temporarily replacing their pastor has ordinary faculties to hear their confessions before the Sunday morning Mass), it would be unlawful for a penitent to approach the priest if the penitent knows the priest does not have ordinary faculties. Miaskiewicz explains: “…the reception of such ministration will be illicit for the faithful who know of the defect in the jurisdictional power of a particular priest and nevertheless seek him out and demand his services.”[29]

        In fact, approaching such a priest for confession would not only be unlawful, but the knowledge of his lack of jurisdiction fails to present the necessary condition for the application of the supplied power (and, hence, the penitent would not receive a valid absolution). Again, writes Miaskiewicz: “He stresses this factor especially in regard to the sacrament of penance, for, an absolution given in virtue of a supplied jurisdiction can nevertheless become invalid, not of course because the priest lacks the necessary jurisdiction, but because of the readily imaginable lack of proper disposition on the part of the penitent, if while he knows the real situation he still approaches the priest without reasonable cause, and thereby posits an obex to the efficacy of the sacramental absolution.”[30]

       Thus, even in communities where common error would trigger supplied jurisdiction, a penitent’s knowledge that the priest lacks ordinary faculties fails to present the necessary condition for receiving a valid absolution from such priest. Not only do Sedevacantist priests operate without supplied jurisdiction, but essentially all of those who approach them for confessions and marriages know they do not possess the requisite faculties. This makes their confessions and marriages most certainly invalid.[31]    

       In the next installment, we will further explore the subject of common error, and also positive and probable doubt, as a basis for supplying jurisdiction, and highlight other errors concerning supplied jurisdiction.

 




[2] As. Fr. Angles, SSPX correctly notes: “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.” “Validity of SSPX’s Confessions and Marriages,” by Fr. Ramon Angles, Part II, www.sspx.org/en/validity-sspxs-confessions-marriages. To establish an analogy of law to parallel situations (cf. canon 19), the Church’s jurisprudence also requires one to look to decisions of the Roman Curia and opinions of the doctors. There is no case in the Church’s jurisprudence which analogizes situations of periculum mortis to situations where there is no danger of death, as a basis for supplying jurisdiction for confessions in the latter cases. To the contrary, as this article demonstrates, supplied jurisdiction for confessions is highly restricted outside danger of death (being limited to “common error” and “positive and probable doubt”).

[3] Fr. Francis Miaskiewicz, “Supplied Jurisdiction According to Canon 209” (Washington, D.C.: The Catholic University of America, 1940), p. 145. In this article, I will quote extensively from Fr. Miaskiewicz’s 1940 dissertation, particularly because Sedevacantists (like John Lane and Gerry Matatics) praise the work as an authority on the suppletory doctrine (Lane even has a link to the entire work on his website www.sedevacantist.com).

[4] Ibid., p. 147.

[5] Canon law uses “necessity” only three times in the context of sacramental confession, and each time it applies to clergy with ordinary jurisdiction, and not as a basis for triggering supplied jurisdiction: Canon 844, §2 (applies to priests of the Orthodox Churches – those with legitimate Apostolic Sees - who have been conceded habitual jurisdiction by the Pope, to minister to Catholics who are physically or morally impeded from approaching a Catholic minister); Canon 844, §4  (applies to Catholic ministers with ordinary jurisdiction to minister to non-members of the Catholic Church who manifest the Catholic faith and who are in danger of death or have another grave necessity as determined by the local bishop or bishops’ conference; and, Canon 961, §1, 2ยบ (applies to Catholic ministers with ordinary jurisdiction to impart absolution in a general manner to multiple penitents at once when there are not enough confessors to hear confessions within a suitable time such that penitents would be deprived of grace through no fault of their own, and which necessity is determined by the local bishop).

[6] Canon 976: “Even though a priest lacks the faculty to hear confessions, he absolves validly and licitly any penitents whatsoever in danger of death from any censures and sins, even if an approved priest is present.”

[7] In reality, what has happened is that some without canonical mission have created this new fourth category of “necessity” under which they claim danger of death is only one example (or subcategory), and not a unique category unto its own. They then add “the crisis of the Church” as another example/subcategory of “necessity,” which they say justifies the claim that priests with no canonical mission receive supplied jurisdiction, and not just for confessions, but for all the faculties needed for the licit and valid administration of every Sacrament, and even the authority needed to perform acts of governance proper to the Pope or Roman Congregations (e.g, granting marriage annulments, lifting excommunications, dispensing from sacred vows). And since, according to their position, this suppletory principle is not limited to a particular territory, these faculties are universal and come to “all priests,” as if they all had a “super-extraordinary” apostolic mission, given to them directly by Christ in ordination.

[8] For example, Cardinal Billot wrote: “This introduction shows, first, that legitimate dispensation of the sacraments can only come from the Catholic Church, so that anyone who does not have a mission from her, by that very fact administers illicitly, and anyone who by receiving the sacrament communicates with the sin of the minister receives sacrilegiously.”; “But the sacraments are the property of Christ. Hence they can be legitimately dispensed only by those who have a mission from Christ, i.e. those to whom the apostolic mission has been transmitted.” Billot on Sacraments and Mission, https://archive.org/details /DeMembris Ecclesiae.

 

[9] This quote was taken from a dialogue on Lane’s Sedevacantist apologetics website at www.sedevacantist.com.

[10] 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).

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

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

[14] 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, while canonists have also debated the number of people required to constitute common error, it is generally held that the erroneous judgment of the majority of the community is required.

[15] 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.

[16] 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.

[17] See also can. 1041, by which their act of schism makes them irregular for the exercise of the power of orders.

[18] Again, this habitual power of governance may either be ordinary or delegated as a faculty.

[19] As Miaskiewicz says, “the Church does not supply in common error about a clear and certain law. By way of illustration one may note the fact that the law clearly demands that a priest be duly authorized to hear confessions. Since this law is so clear, one could not term any common error concerning its existence as probable. Therefore, the Church in all probability does not supply in cases of such common error. The Church supplies only in common error of fact, that is, in common error about the existence or the valid possession of a certain office or jurisdiction. Thus, the common error must, first of all, be particularized, i.e., about a priest or bishop who is considered to possess some definite title of jurisdiction or to be legitimately exercising whatever jurisdictional title he might possess” p.167.

[20] Many Sedevacantist and independent priests who appeal to supplied jurisdiction for their illicit ministries wrongly analyze common error in a theological vacuum by overgeneralizing its application, hypothesizing that common error applies to any community that sees a priest put on a stole and go into a confessional and would believe the priest has faculties. That is a gross misapplication of common error. As Miaskiewicz explains: “The common error must be about the existence of a particular office or about the validity of the possession of jurisdiction by some particular person or persons. Common error must, then, be particularized” p. 311. In fact, some of these irregular priests even argue that they can engage in an act that provokes common error (in other words, that intentionally deceives people into believing they have faculties). Not only would common error not apply to their illicit ministries, but any act intended to induce common error is unlawful. As Miaskiewicz says: “First of all, it is to be noted, authors quite generally agree that it is in no way licit for a priest actively to induce common error either directly or indirectly” p.291.

[21] As the Roman Rota held: “The sole and adequate reason for which the Church supplies a lack of power is the necessity of promoting the common good or of avoiding a common evil. But not for a merely private good.” (Rota, decision, December 11, 1972; reported in Periodica, 63 (1974), pp. 459-462).

[22] Miaskiewicz, p. 225 (emphasis added).

[23] Ibid., p. 178 (emphasis added).

[24] Ibid., p. 237.

[25] Ibid., p. 304.

[26] Ibid., p. 228. Yet again, Miaskiewicz uses the example of bishops and parish priests with canonical mandates as the clerics of whose communities would be subject to common error: “Thus, for example, parish priests and bishops who solemnly take possession of their benefices are immediately from that moment considered by their subjects as the lawful possessors of said parishes and dioceses” p. 227.

[27] Ibid., p. 191.

[28] Ibid., p. 301.

[29] Ibid., p. 291 (emphasis added).

[30] Ibid., p. 297 (emphasis added).

[31] We are grateful that Pope Francis has delegated the faculty to validly and licitly hear confessions directly to the clergy of the Society of St. Pius X, who could not rely upon common error or positive and probable doubt for supplied jurisdiction prior to the Pope’s merciful delegation of the faculty.  Pope Francis conferred the faculties during the Extraordinary Jubilee Year of Mercy (December 8, 2015 to November 20, 2016). In his Apostolic Letter Misericordia et misera (November 20, 2016), the Pope extended this privilege to the SSPX clergy indefinitely.

[32] Ibid., p. 109.

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