The Validity of Confessions and
Marriages
in the chapels of the Society of St. Pius X
A CANONICAL STUDY
by Rev. Ramón Anglés
1. SOME CONSIDERATIONS ON THE POWER OF JURISDICTION
1.1. THE PROBLEM
It is often heard that the priests of the Society of Saint Pius X do not have jurisdiction, and that the bishops consecrated by Archbishop Marcel Lefebvre and Bishop Antonio de Castro Mayer do not claim any jurisdiction either. In a way, this is true.
And yet, we know that the power of jurisdiction over the penitent is required for the validity of absolutions (Canon 872), and that the ordinary canonical form of marriage requires the presence of an authorized priest (Canon 1094). Furthermore, without a canonical mission - which is an act of jurisdiction- a priest is not allowed to preach (Canon 1328). Authorization or delegation is as well required for performing a baptism in the usual way (Canon 739), and also to take Holy Communion to the sick in a solemn manner (Canon 848), to keep the Blessed Sacrament reserved in chapels of convents, schools and churches which are not parishes or attached to exempt religious houses (Canon 1265), to perform funeral rites (Canon 1230), to build a church (Canon 1162), and faculties are required by a cleric in order to be a legitimate minister of the Sacramentals (Canon 1146). The Code maintains that a Bishop can confirm licitly only his subjects (Canon 783), upon whom he has ordinary jurisdiction.
Nevertheless, our Bishops confirm worldwide, our priests perform all the sacred actions mentioned above, and traditional Catholics build churches and chapels where the Eucharistic Lord dwells permanently in His tabernacle. All this is done without the delegation of the diocesan prelate, and often very much against his will.
So, let us face the problem: if the priests of the Society of Saint Pius X do not have jurisdiction, it appears that the confessions they hear and the marriages they bless are invalid. If they have no faculties, all the priestly work they perform every day is illegitimate and therefore evil. If this is so, it would be a sin to receive their services, maybe even to ask for them. If such is the case, the Society is deceiving the good traditional Catholic faithful!
As the Spartans replied to the invading army before the decisive battle, when the herald described the terrible retribution which would be inflicted upon their homeland IF they lost, our answer is also a laconic: "IF."
All the conditional aforementioned propositions are wrongly founded, and it will be the purpose of this study to prove it. Let us see in the following pages how indeed the legislation of the Church is on our side, how it helps us to perform our priestly ministry in these extraordinary times, how indeed Codex vere est amicus noster!
1.2. WHAT IS JURISDICTION?
We are not interested here in studying the foundation and existence of jurisdiction, only its notion, so that we may understand what are we talking about. The former is the field of Juridical Philosophy, and there are very good studies on the subject; I recommend Ottaviani (Institutiones Iuris Publici Ecclesiastici, vol. I, 109ss.), the very concise article of Dom Baucher in the Dictionnaire de Théologie Catholique (Juridiction, volume VIII, columns 1976ss.) as well as various dissertations in Taparelli (Saggio Teoretico di Dritto Naturale) .
Let me nevertheless point out some concepts of the utmost importance:
1) A juridically perfect society is the one which pursues an end which is complete and perfect in its own order, a society which possesses the necessary means to attain such perfect end, and which in its own order is self sufficient and independent, a fully autonomous society (Ottaviani, Institutiones Iuris Publici Ecclesiastici, # 25). The Catholic Church is a perfect society, with a perfect end and full rights to obtain it: the end is the salvation of the souls and the means are the ones which her Divine Founder entrusted her, the doctrine to be taught, the Sacraments to sanctify, and the hierarchical structure to govern. These means correspond with the three munera or "functions" given by Our Lord to the Church: munus docendi, munus sanctificandi, munus regendi. By being faithful to these duties and using the means given by Our Lord, she leads the souls of the faithful to their eternal destiny in Heaven.
2) The juridical status of a society, perfect or imperfect, depends on its purpose. Because of her supernatural purpose, the Church has the authority to rule her members for the attainment of their eternal salvation. This power of divine institution (Canon 196) is what we call ecclesiastical jurisdiction.
Following such great principles Cappello explains Canon 196, which concerns the power of jurisdiction in the Church. Iurisdictio ecclesiastica generatim sumpta, est potestas publica regendi subditos in ordine ad vitam aeternam. (Cappello, Summa Iuris Canonici, # 242). When we speak about "jurisdiction" we are actually referring to the power of ecclesiastical jurisdiction or government. The New Code prefers to call it potestas regiminis (New Code Canon 129), even though it still accepts the old terminology potestas jurisdictionis (ibidem).
Cappello continues: Dicitur PUBLICA ut a dominativa (patria, maritali,herili) distinguatur; REGENDI, ut indicetur discrimen inter ipsam et potestatem ordinis quae directe et immediate ordinatur ad sanctificandos homines; IN ORDINE AD VITAM AETERNAM, ut exprimatur finis ultimus ad quem directe refertur, qui utrique potestati communis est.
Let us retain this principle during our reading of the present study: the power of jurisdiction in the Church is exercised in order to foster the eternal salvation of the souls. This is an essential concept. The Church has jurisdiction in order to save souls, and whatever law frustrates such purpose is to be considered as not binding, because the Church cannot contradict her very purpose. The law of the Church must always be interpreted with the sublime axiom in mind: Prima lex salus animarum, "The first law is the salvation of the souls."
1.3. THE NATURE AND THE SOURCES OF JURISDICTION
To be precise, instead of "jurisdiction" we should speak about the POWER OF JURISDICTION. Agostino Pugliese, S.D.B., in his article Jurisdiction, published by Palazzini in his excellent Dizionario di Teologia Morale, specifies clearly: The power of jurisdiction in the Church includes legislative, executive and judicial authority. Thus, while the power of orders stems from the sacrament of holy orders and is immediately directed to the sanctification of her members, the power of jurisdiction or government springs from the very nature of the Church as a supreme and perfect society that needs to be guided and governed in order fully to attain her spiritual end. Ordinarily, ecclesiastical jurisdiction can only be exercised by clerics (Canon 118).
Jurisdiction does not come from the reception of holy orders. The Pope receives it directly from Christ once he has been legitimately elected and has freely accepted the election. All the other degrees of jurisdiction are normally received by a canonical mission (Canon 109).
This canonical mission or official appointment is either ORDINARY or DELEGATED. Ordinary jurisdiction is automatically attached to an office by the law; it is the case of a diocesan Bishop, or of those prelates who in law are equal to him; this why they are called Ordinaries. Delegated jurisdiction is that which is committed to a person, and this can be done by an administrative act of the legitimate Superior or by the law itself; it is the case of a regular priest exercising his ministry in a diocese (See Canons 197ss.). Jurisdiction is also delegated in extraordinary cases by the law itself, which supplies for the lack of jurisdiction in a subject: we call it JURISDICTION SUPPLIED BY THE CHURCH. Therefore, it is technically erroneous to speak, for instance, of a priest of the Fraternity of St. Peter as having ordinary jurisdiction (his jurisdiction is delegated, not ordinary) or a priest of the Society of St. Pius X as having extraordinary jurisdiction (the Church supplies in actu the required jurisdiction in extraordinary circumstances contemplated by the law).
The sources of the power of jurisdiction in the Church are therefore multiple:
1) Christ himself, for the Pope, who in His name governs the Church as her visible head on earth (see Canons 109 and 218).
2) The appointment to an office to which jurisdiction is automatically attached, as it is the case of a diocesan Bishop (Canons 197 and 198).
3) The legitimate delegation of jurisdiction from a Superior, for instance when the Ordinary gives faculties to a priest so that he may hear confessions in the diocese (Canon 874, #1).
4) Canon Law itself, when contemplating extraordinary cases in Canons 209, 882, 1098 and 2261; and the exceptional situations indicated in New Code Canons 844 and 1117.
My intention is to develop #4 with the help of the Code, the jurisprudence of the Holy See, and the commentaries of the many authors who have treated the subject, in order to proof beyond doubt that the confessions and matrimonies in our chapels are perfectly valid and legitimate. The development of the application of New Code Canons 844 and 1117 is presented here only as an argument ad hominem.
1.4. WHAT IS SUPPLIED JURISDICTION?
The Church is a mother, a mother legislating for the good of her children. Her first law is the salvation of souls; the Church governs the souls because it must lead them to Heaven. Certain juridical or administrative acts in the Church require the power of jurisdiction; although an unauthorized agent without jurisdiction might observe every formality required by the law, his act will be invalid. A series of invalid acts, placed by an unauthorized agent, maliciously or in good faith, especially when such acts are distributed throughout a long period of time, will work havoc in any society, the Church not exempted.
It is a function, then, of good government to provide against this peril, not in the sense that invalid acts must be rendered valid, which will be tantamount to the legislator contradicting himself, but in the sense that the legislator PROVIDES FOR THOSE CASES IN WHICH A DANGER TO THE SOULS IS VERIFIED. The Church provides by SUPPLYING jurisdiction to an agent who lacks it, and she does it for both the internal and the external forum.
This suppliance is to be conceived as a delegation by the law, delegatio a iure. The active subject of this extraordinary delegation is the common law, in the sense that is disposed in the legislation. The power is given not habitually but in actu: the agent does not possess the power before he uses it, nor does he retain it afterwards: he possesses it by delegation of the law ONLY AS LONG AS IT IS NECESSARY FOR THE VALID EXERCISE OF THE ACT.
The Church supplies only those things which pertain to the state and condition of persons, but not the formalities required by the law for the validity of acts. Also, the Church can supply only the power which is entrusted to her, not what is required by divine or natural law (example: a layman cannot receive supplied jurisdiction to hear confessions; he is not a priest).
1.5. ELEMENTS OF SOLUTION: THE CANONS IN QUESTION
1.5.1. NEW CODE OR OLD CODE?
I will quote consistently in my study the Canon Law of Saint Pius X, promulgated by Benedict XV in 1917, which has been the wise canonical legislation of the Latin Church until 1983. It was then replaced by a New Code, "in order that the Church may progress in conformity with the spirit of the Second Vatican Council" (Apostolic Constitution Sacrae Disciplinae Leges, January 25, 1983). The Society of Saint Pius X disagrees profoundly with the letter and the spirit of this New Code which enshrines juridically the conciliar views on the Church and the world.
Nevertheless, it is interesting to note that the new legislation is almost identical to the precedent one in what concerns the subjects which we are treating here; a quick view at the Canons quoted in this article shows it clearly. In fact, the evolution of canonical doctrine tends ostensibly to develop in favor of a wider application of favors and freedom, everything being to our advantage. Having in mind that our case will be judged by our antagonists according to the New Code, I will often make reference to the correspondent canons, indicating it with the words New Code.
It may happen that someone claims that the past canonical doctrine is out of date, or that it has been suppressed by the New Code, and that consequently the commentaries and opinions which I am quoting and using in this study are no longer valid. I want therefore to recall that "Canones huius Codicis, quatenus ius vetus referunt, aestimandi sunt ratione etiam canonicae traditionis habita" (New Code Canon 6, 2), which means that although the New Code substitutes completely the one of 1917, the norms that reproduce concepts and practices of the old legislation must be understood and studied in the light of canonical tradition. Identical approach is to be found also in the 1917 Code, Canon 6, concerning the ancient legislation of the past centuries. It makes perfect sense, because without such a policy no jurisprudence nor coherent canonical study would ever be possible.
1.5.2. THE CANONS
(There is an English translation of each Canon in the correspondent article.)
1.5.2.1. Common error and positive probable doubt:
* In errore communi aut in dubio positivo et probabili sive iuris sive facti, iurisdictionem supplet Ecclesia pro foro tum externo tum interno. (Canon 209)
* Matrimonium gaudet favore iuris; quare in dubio standum est pro valore matrimonii. (Canon 1014)
* #1. In errore communi de facto aut de iure, itemque in dubio positivo et probabili sive iuris sive facti, supplet Ecclesia, pro foro tam externo quam interno, potestatem regiminis exsecutivam. #2. Eadem norma applicatur facultatibus de quibus in cann. 883, 966, et 1111, #1. (New Code Canon 144)
* Matrimonium gaudet favore iuris; quare in dubio standum est pro valore matrimonii, donec contrarium probetur. (New Code Canon 1060)
1.5.2.2. Danger of death:
* In periculo mortis omnes sacerdotes, licet ad confessiones non approbati, valide et licite absolvunt quoslibet poenitentes a quibusvis peccatis aut censuris, quantumvis reservatis et notoriis, etiamsi praesens sit sacerdos approbatus... (Canon 882) See also Canon in 1.4.2.3. for marriages in danger of death.
* Quilibet sacerdos, licet ad confessiones excipiendas facultate careat, quoslibet poenitentes in periculo mortis versantes valide et licite absolvit a quibusvis censuris et peccatis, etiamsi praesens sit sacerdos approbatus. (New Code Canon 976) See also Canon in 1.4.2.3. for marriages in danger of death.
* Ipso iure facultate confirmationem ministrandi gaudent... quoad eos qui in periculo mortis versantur...immo quilibet presbyter. (New Code Canon 883, 3)
1.5.2.3. Extraordinary form for marriage:
* Si haberi vel adiri nequeat sine gravi incommodo parochus vel Ordinarius vel sacerdos delegatus qui matrimonio assistant ad normam canonum 1095, 1096:
1º In mortis periculo validum et licitum est matrimonium contractum coram solis testibus; et etiam extra mortis periculum, dummodo prudenter praevideatur eam rerum conditionem esse per mensem duraturam;
2º In utroque casu, si praesto sit alius sacerdos qui adesse possit, vocari et, una cum testibus, matrimonio assistere debet, salva coniugii validitate coram solis testibus. (Canon 1098)
* # 1. Si haberi vel adiri nequeat sine gravi incommodo assistens ad normam iuris competens, qui intendunt verum matrimonium inire, illud valide ac licite coram solis testibus contrahere possunt: 1º in mortis periculo; 2º extra mortis periculum, dummodo prudenter praevideatur earum rerum condicionem esse per mensem duraturam. # 2. In utroque casu, si praesto sit alius sacerdos vel diaconus qui adesse possit, vocari et, una cum testibus, matrimonii celebrationi adesse debet, salva coniugii validitate coram solis testibus. (New Code Canon 1116)
1.5.2.4. Sacraments and Sacramentals administered by an excommunicated minister:
* #2. Fideles, salvo praescripto #3, possunt ex qualibet iusta causa ab excommunicato Sacramenta et Sacramentalia petere, maxime si alii ministri desint, et tunc excommunicatus requisitus potest eadem ministrare neque ulla tenetur obligatione causam a requirente percontandi. #3. Sed ab excommunicatis vitandis necnon ab aliis excommunicatis, postquam intercessit sententia condemnatoria aut declaratoria, fideles in solo mortis periculo possunt petere tum absolutionem sacramentalem ad normam can. 882, 2252, tum etiam, si alii desint ministri, cetera Sacramenta et Sacramentalia.(Canon 2261)
* Si censura vetet celebrare sacramenta vel sacramentalia vel ponere actum regiminis, vetitum suspenditur, quoties id necessarium sit ad consulendum fidelibus in mortis periculo constitutis; quod si censura latae sententiae non sit declarata, vetitum praeterea suspenditur, quoties fidelis petit sacramentum vel sacramentale vel actum regiminis; id autem petere ex qualibet iusta causa licet. (New Code Canon 1335)
1.5.2.5. New legislation concerning the reception of certain Sacraments from non-Catholic ministers:
#2. Quoties necessitas id postulet aut vera spiritualis utilitas id suadeat, et dummodo periculum vitetur erroris vel indifferentismi, licet christifidelibus quibus physice aut moraliter impossibile sit accedere ad ministrum catholicum, sacramenta poenitentiae, Eucharistiae et unctionis infirmorum recipere a ministris non catholicis, in quorum Ecclesia valida existunt praedicta sacramenta. (New Code Canon 844)
1.5.2.6. New legislation exempting from the
canonical form for marriage those Catholics who have left the Church
by a
formal act:
* Statuta superius forma servanda est, si saltem alterutra pars matrimonium contrahentium in Ecclesia catholica baptizata vel in eandem recepta sit neque actu formali ab ea defecerit, salvis praescriptis can. 1127 #2. (New Code Canon 1117)