Setting Canon Lawyers against each other ...

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JMJ

So, Michael Voris has trotted out his Canon Lawyer ...

Let's hear from the other side.

P^3

Source: SSPX Supplied Jurisdiction

S.S.P.X. JURISDICTION

FOR CONFESSION & MATRIMONY

(From the works of Rev. Fr. GLOVER, J.C.D.

and of the priests of CAMPOS - Brazil - cf. "Cor Unum" #16)

I. Status Quaestionis

The power received by the ordination to the priesthood is sufficient for validly celebrating Mass everywhere. This power, called power of Order, is also necessary for hearing Confessions or blessing Marriages, but it alone is not sufficient. For the validity of these two Sacraments is required the power of JURISDICTION, usually given by the local Bishop.

Power of ORDER = power to sanctify the faithful, conferred by the sacred rite of ordination, cannot be taken away.

Power of JURISDICTION = power to govern the faithful, commissioned by the competent

authority which can take it away. All power is given to Me in heaven and on earth…. (Mt.xxviii,18).

Now, the problem is that many diocesan Bishops refuse to grant to the SSPX priests the jurisdiction for Confessions and Marriages, and, because of this refusal, some people doubt the validity of those Sacraments when administered by the Society’s priests. Let us already realize that this situation in the Church is nothing new:

A) In England, during the XVI century, the bishops became schismatic and heretics, while many priests remained true to the Church and continued to give the Sacraments even separated from - or in spite of - the bishop.

B) In France, during the Revolution, the priests were summoned by the government to take a schismatic oath (condemned by Pius VI in April 1791) but the majority refused and continued to give the Sacraments even without the authorization of the bishops jureurs.

C) In countries enslaved by Communism many priests are exiled from their own diocese and are unable to get in touch with the local Bishop (when this one is not a Party agent!). Nevertheless they do not hesitate to confess people in private homes or concentration camps.

Thus, it must be clear that all the laws of the Church have but one purpose: the salvation of souls. SALUS ANIMARUM EST SUPREMA LEX:... "always keeping in mind the salvation of souls, which in the Church must always be the supreme law." (New Code of Canon Law, c. 1752)

Our divine Lord has established that the graces of salvation be conferred through the ministry of His priests to whom He has given special powers: which means that priests have a grave obligation to come to the rescue of the souls in need. Therefore, even the canonical laws, which rule the normal exercise of the priestly ministry, are subordinated to this supreme law: God's law comes before purely ecclesiastical laws. In other words, when the strict observance of legal norms certainly hinders or gravely impedes the salvation of souls, the divine law must prevail. As St. Thomas teaches: Legislators in framing laws attend to what commonly happens: although if the law be applied to certain cases it will frustrate the equality of justice and be injurious to the common good, which the law has in view...To follow the letter of the law when it ought not to be followed is sinful… it is written in the Codex of Laws and Constitutions: without doubt he transgresses the law who by adhering to the letter of the law strives to defeat the intention of the lawgiver. (Summa Theologica, IIa IIae, qu.120, art.1) In preparing the Code of Canon Law St. Pius X hardly could have foreseen that modernist bishops would use it against Catholics holding fast to the true Faith and the unadulterated Sacraments! In this crisis of the Church, let us remember the words of St Paul: the letter (of the law) killeth, but the spirit (of the law) giveth life (II Cor.iii;6).

II -The power of jurisdiction for Confessions

By his ordination every priest receives the radical power to absolve, but to exercise this power validly he must receive also the power of jurisdiction; for, in the sacrament of penance the priest acts as a judge, and a judge must have authority over those whom he judges or his sentence is not binding.

1.The following have ORDINARY jurisdiction (as attached to their office):

*the Pope over the whole Church

*the Bishop over his diocese's flock

*the pastor over his parishioners

2. All other priests have DELEGATED jurisdiction (can. 967)

and such a jurisdiction is delegated either by someone who has ordinary jurisdiction or by Church law itself. Now, jurisdiction for Confession is delegated by Canon Law itself:

* to all priests if the penitent is in danger of death (see can. 976)

* to the priests who absolve in common error, or in a positive & probable doubt (can. 144)

In such cases the Church is said to supply jurisdiction. Thus, even though SSPX priests do not enjoy a jurisdiction which is ordinary or delegated by the local bishop, the Church gives them the necessary jurisdiction in cases of danger of death, common error, and positive doubt. The Code of Canon Law directly gives them the power they need.

1) In case of danger of death (canons 976 & 1357)

i). Principle: In danger of death all priests, even though not approved for Confessions, can validly and lawfully absolve any penitent from any sins and censures, although reserved and notorious, EVEN IF AN APPROVED PRIEST IS PRESENT.

The Code does not specify imminent death, but merely danger of death. Moreover it does not matter from what source the danger of death arises: sickness, wounds, impending serious operation, call of a soldier to war, etc. (cf. Sacred Penitentiary, May 29, 1915 and March 25, 1944)

Moreover, Canonists of repute (Coronata, D'Annibale, Gomez,...) apply this rule to those who are in great danger of not recovering the use of reason, or to those who will be unable to easily find a priest in the future for Confession & absolution. Indeed, the mind of the Church is that every dying person be offered the help of the Sacraments, taking advantage of His Mercy before meeting His Justice. Now, if there is doubt about the danger of death, as long as this danger is probable the sacramental absolution is valid because the Church supplies jurisdiction in a positive & probable doubt of fact (can. 144).

ii). Application: In the actual crisis of the Church, traditional Catholics are usually obliged to go to Confession only to "traditional" priests, since "modern" priests either refuse to hear Confessions, or give wrong advice and do not use the proper words for absolution, or even deny the absolution to those guilty of the unforgivable crime of agreeing with Archbishop Lefebvre. Therefore, there is a true danger of dying without absolution since "traditional" priests with ordinary jurisdiction are so few and often difficult to find. Consequently, we have the right and duty (ex caritate: see can. 986 §2) to hear the confession of these poor souls deprived of good shepherds. It ought to be kept in mind that it is sufficient to have a positive & probable doubt about such a danger to enjoy the jurisdiction supplied by the Church (Old Code c. 209).

2) In case of common error (can. 144)

i). Principle: Common error is the false judgement affecting the main part of a community (parish, diocese, or religious institute) about the existence of the jurisdiction of a particular priest: the priest is erroneously believed to have jurisdiction whereas he has none. This false judgement is either actual or presumed:

α) There is actual common error when a priest without jurisdiction sits in a confessional in a church where most of the parishioners are present and wrongly think that this priest has the necessary faculties for Confession. But it is not often that the main part of the parish is in church and thinks about Father's jurisdiction; and it is why Canon Law supplies jurisdiction also when this error is only presumed to exist (error de jure as opposed to the error de facto).

β) Interpretative (or presumed) common error happens when there is a public circumstance, or set of circumstances, from which all reasonable persons would naturally conclude that Father enjoys jurisdiction. Thus, a priest sitting publicly in a confessional in a public church is presumed to have the power to hear Confessions, and this public circumstance is a sufficient reasonable foundation for interpretative common error. Perhaps most of the parishioners are not actually present, but they can enter anytime and reasonably (though falsely) assume that Father has jurisdiction, because he is in the confessional in church. And this jurisdiction is supplied for each and every Confession heard in these circumstances, regardless of the number of people who are in church and who go to Confession.

ii). Application: Interpretative common error is easily caused in public places, as in our chapels and missions, and as a result the power of hearing Confessions is real: even the faithful who know that our priest has no jurisdiction are validly absolved. "The fact that the person knows that the priest has no jurisdiction, does not interfere with the validity of the priest's acts if by common error he is believed to have jurisdiction." (Woywood, A practical commentary on the Code of Canon Law, p.101 of 1962 edition)

In the October 1983 issue of the "Homiletic & Pastoral Review" ,Fr. Joseph J. Farraher, SJ, wrote: As for Archbishop Lefebvre's priests, see my answer in the Aug.- Sept.1982 issue of HPR where I stated that, although his priests are illicitly ordained, they are validly ordained and have the radical power to absolve sacramentally. And, although ordinarily priests require "faculties" or jurisdiction to absolve validly and the Archbishop's priests do not have valid faculties, nevertheless when they enter a confessional in what appears to be a Catholic church, the supreme authority of the Church in Canon Law supplies jurisdiction to them just so that the faithful who approach them in good faith for Confession will not suffer lack of valid absolution. (p.67) And in the February 1985 issue of H.P.R. he came back to the question of Archbishop Lefebvre's priests: The Masses said, the absolution given, and the marriages witnessed by them are all most probably valid, the latter two categories at least by "common error". (p61)

This has been confirmed by a reply of Cardinal Mayer to a letter written by a troubled Catholic from California asking about the validity of our Sacraments: The principle of "common error" , whether on the part of only one faithful or on the part of the community, can be applied in this case, and such acts are thereby valid (cf. canons 144, 976, 1331, 1333, 1335) (Apostolic Nunciature in U.S.A., letter 1885/89/4, dated May lst,1989).

3) In case of positive & probable doubt (can. 144)

We can apply this rule to danger of death and to common error: if there is a probable doubt about these facts, then the Church supplies jurisdiction.

Also, in the case of priests deprived without a just & serious motive from the jurisdiction that they possessed as parish priests, since the bishops abused their authority against the requirements of the Code of Canon Law, there is at least a doubt about the validity of such sanctions against good priests. For instance, Father Paul A. Wickens had been in the same parish for twenty-eight years when, one day in 1983, his bishop threw him out, denying him use of the church for his Mass, cutting off his salary and refusing him shelter in the rectory. Now he had not denied Catholic doctrine, given public scandal or neglected his duties. And for months there was no one to replace him. His crime was to oppose his bishop's stand on sex education in public schools! So, Archbishop P. Gerety of Newark, New Jersey, transferred him to a distant parish to punish him for exposing the harm that was being done; and, without recognizing Father's appeal to Rome, he suspended him (cf. Verbum # 21,Spring 1986).

4) Confirmation by canon 1335

The faithful may, for any just reason, ask the Sacraments and sacramentals from a priest who is excommunicated (but not by sentence), especially if there is no other priest available: thus asked by the faithful the excommunicated priest may minister to them validly and lawfully.

Now, if the Church in her spirit of mercy allows the exercise of jurisdiction to a priest punished with the most grievous censure, only in order to satisfy any just reason of conscience of a faithful, how would she not supply jurisdiction to priests arbitrarily and unjustly deprived of it, in order to come to the rescue of the "traditional" Catholics rejected or repulsed by the modern clergy? Any just reason of conscience of a particular faithful is enough to move the mercy of the Church for allowing an excommunicated priest the use of jurisdiction. How the very grave reasons of conscience of thousands of Catholics could not be enough to move the Church to supply jurisdiction to priests whose only crime is to hold fast to the true Faith?

5) Conclusion about Confessions by SSPX priests

Thus, it is clear that there is no difficulty for validly hearing Confession in the current state of the Church. Even though the jurisdiction of our priests is neither ordinary nor delegated by the local bishops, nevertheless they have a real jurisdiction supplied by Canon Law itself (supplied jurisdiction).

III. The power of jurisdiction for Marriages

1) General Rule: For a valid Marriage between Catholics, it must be contracted before the local parish priest or his delegate (can. 1108). Now, the priest before whom marriage is contracted is only a qualified witness, and not the minister of the Sacrament of Matrimony, but his presence is a condition decreed by the Church for validity.

2) Exceptions (can. 1116): If the pastor or his delegate cannot assist at the marriage, or the parties cannot go to him, without serious inconvenience, marriage may be validly and licitly contracted before two witnesses alone:

a) in danger of death;

b) even apart from the danger of death, as long as it is prudently foreseen that the serious difficulty of getting an authorized priest will continue for a month.

a) in danger of death: If either party is in danger of death, since the spouses themselves are the ministers, Canon Law provides for the extraordinary form of marriage. The use of this extraordinary form presupposes that the parties are free to marry. But if a priest is present and the marriage is necessary for the peace of conscience, he has in virtue of can. 1079 #2 far-reaching faculties, if the local bishop cannot be contacted (and he is not considered to be accessible if he can be contacted only by means of telegraph or telephone: can. 1079 #4).

The danger of death need not necessarily arise from illness only, for the Code speaks of danger of death generally, from any source. A bona fide, belief of the parties that there is danger of death before an authorized priest can be had must suffice, because in many cases there is no possibility of ascertaining the objective danger of death. There need be no special reason why the parties want to get married in danger of death, for the Code does not require any. (Woywood, A Practical Commentary, 1962)

This does not mean imminent death, but danger of death: a situation wherein there is a reasonable chance that death may occur due to illness, impending surgery, war, or even execution. The key point is that an official witness cannot be contacted or approached without grave inconvenience. It must be difficult both for the parties to approach a sacred minister and/or the minister to go to the parties. The grave inconvenience may be due to distance, lack of means of communication, or lack of transportation. In this case it amounts to physical impossibility. The inconvenience may also be caused by the moral impossibility of the official witness being present. This could be true during wartime or in areas where Catholics are persecuted. Civil laws may forbid any religious marriages or a given marriage itself. If such a sanction were unjust (e.g. legislation forbidding interracial marriages), it could be construed that the official witness cannot be present due to grave inconvenience. There is no taxative list of circumstances which constitute grave inconvenience and justify use of the extraordinary form. However, grave inconvenience does not include those situations in which an official witness is prevented from being present due to an ecclesiastical prohibition of the marriage in question (e.g. prior bond, or undispensed impediment). (T. Doyle, OP: The Code of Canon Law, A Text and Commentary, The Canon Law Society of America, 1985)

If the pastor or Ordinary can be reached only by telegraph or telephone, it may be considered that he cannot be reached (Code Comm.,Nov-12,1922).The grave inconvenience may consist in the disclosure of former hidden misconduct of the parties, which would be revealed by asking the pastor to assist. (Bouscaren & Ellis, Canon Law: A Text and Commentary, 1963)

Thus, the followings conditions are required for validity:

1) danger of death of either party (from any cause) according to prudent moral estimation;

2) physical or moral impossibility to reach the ordinary or pastor who should normally assist;

3) two witnesses capable of attesting to the fact that consent was exchanged.

For the liceity of the sacrament, if any priest can be easily had, he must be called and he must assist; if he assists, he has the faculties mentioned in canons 1079 & 1080.

b) outside danger of death: The conditions are the same, except that there is no danger of death and the impossibility of reaching the pastor must not only exist at the time of the marriage but must be prudently foreseen as likely to last for a month. This impossibility may be the fact that the normal celebration of marriage would cause grave harm (moral or material) to the common good, or to the spouses or one of them, or to the ordinary or the pastor or the delegated priest (cf. Code Comm., May 3,1945). For instance, great expenses for poor people or harm to health or ministry. During the French Revolution, at one point priests were threatened with life sentence if they officially assisted at marriages but the Holy See declared that such marriages without a priest were valid with two witnesses only.

The extraordinary form may be used outside of danger of death if it is foreseen that an official witness cannot be contacted or approached without grave inconvenience for a period of one month. If the parties are morally certain that the situation which prevents the official witness from being present will not change, they may exchange consent before the other witnesses alone. Even if the parties err in the assumption and an official witness may be conveniently had within a month, the marriage is still valid. It is also valid if through their own fault, the parties find themselves in a situation requiring the extraordinary form. (T. Doyle, OP, op. cit.)

3) Application to our case: If material damage authorizes the future spouses to contract marriage without the canonical form (i.e., with no official witness), a fortiori a spiritual damage gives the same authorisation. This harm which constitutes the grave inconvenience and which lasts not only for a month, but for an indefinite length of time, is the New Mass and the updated marriage preparation ("pre-Cana conferences").There is a moral impossibility for the faithful to ask a parish priest to marry them, when they know that he will give them instructions and a Mass endangering their Faith (and in many places the New Mass is sacrilegeous and invalid). Therefore, Catholics who do not want to give scandal or to be scandalized by the new beliefs seem entitled to contract marriage before two witnesses and - if there is one - a traditional priest who shall bless them.

4) Common error:

i). Principle: The Commission for the Authentic Interpretation of Canon Law stated that canon 209 (Old Code) applies also to the case of a priest who, lacking jurisdiction, assists at a marriage (Code Com, March 26,1952). Thus, if a priest is wrongly thought to have the powers of a pastor by common error, the Church supplies jurisdiction and the marriage is valid (cf. Jone #729). However, the mere fact that an unknown priest, not officially connected with the parish church, is seen to perform the marriage of a specific couple in this church, is not a sufficient foundation for thinking that he can marry other couples. Common error concerns only the present faculty and not a future possibility. Unlike the faculty for Confessions which is general, the faculty for Marriages is delegated for a particular case: the fact that Father was the official witness at the marriage of Mr X and Miss Y. does not give him the delegation for the marriage of Mr Z and Miss W, unless he is the pastor or the assistant pastor.

Canon #144, 2 explicitly applies the rule of common error to the delegation to assist at marriages (cf. can. 1111).

ii). Application: In SSPX chapels where their priests celebrate Mass regularly like parish priests do, it seems easy to have common error in so far as the faithful consider us as pastors. Moreover, in case of a positive & probable doubt about the existence of this common error, the Church supplies jurisdiction (can. 144). See on page 3 the quotation from the February 1985 issue of The Homiletic and Pastoral Review, where Fr. Farraher says that our marriages are "most probably valid ... at least by common error."

III. Conclusion

Even Canon Law comes to the rescue to prove that the SSPX priests validly hear Confessions and assist at Marriages, like the priests who have received the faculties from their local bishops. With regard to lawfulness, it is easy to answer that there is a true and habitual necessity for using such a supplied jurisdiction.

Finally, let us keep in mind that Lex positiva non obligat cum gravi incommodo: Positive law never obliges where there is a serious inconvenience. Moral theology teaches that a state of emergency of souls, even more than that of other obstacles, excuses one from observing the law. This means that by virtue of such a situation the prescriptions of any positive law, whether human (civil or ecclesiastic) or even divine, may not be binding - with the exception of the prohibitions of the natural law, because these forbid acts which are intrinsicallv evil. There are extreme cases in which disciplinary laws lose their force, giving way to divine law. What does this mean? There are cases, even ordinary cases – and our Lord Himself is our guarantee - in which divine (positive) law is eclipsed by natural (divine) law. "Which of you", said the divine Master, "shall have an *** or an ox fall into a pit, and will not immediately draw him out, even on the Sabbath day?" (Lk. xiv. 5 & xiii. 16)

"IF A LAW GIVES WAY FOR SUCH A REASON, WHAT SHALL WE SAY WHEN AT STAKE IS NOT JUST THE SAVING OF THE LIFE OF A DAUGHTER OF ABRAHAM, BUT THE COMING TO THE AID, IN AN EXTREME DANGER, OF THE COMMON MOTHER OF ALL MEN, THE SPOUSE OF CHRIST, THE CHURCH OF GOD?" (The great Cardinal Pie, Speech for the reception of the relics of St. Emilian, Nov.8.1859)