The Validity of Confessions and Marriages
in the chapels of the Society of St. Pius X

A CANONICAL STUDY

by Rev. Ramón Anglés

3. SUPPLIED JURISDICTION IN CASE OF POSITIVE AND PROBABLE DOUBT

3.1. THE CANONS IN ENGLISH

*In common error or in positive probable doubt wether of fact or law, the Church supplies jurisdiction both for the external and the internal forum. (Canon 209)

* Marriage enjoys the favor of law. Wherefore, in case of doubt, the marriage is to be considered valid until the contrary is proved. (Canon 1014)

* #1. In common error about fact or about law, and also in positive ad probable doubt about law or about fact, the Church supplies executive power of governance both for the external and for the internal forum. #2. This same norm applies to the faculties mentioned in cann. 883, 966 and 1111,1. (New Code Canon 144)

* Marriage enjoys the favour of law. Consequently, in doubt the validity of a marriage must be upheld until the contrary is proven. (New Code  Canon 1060)

3.2. NOTIONS

Who is exempt from doubts? Especially when navigating in the not-always-clear waters of Canon Law, some anxiety or scruple may appear. As an example, the case of common error before the New Code: in common error of law, does the Church supply jurisdiction? Some authors answered in the affirmative -we quoted many of them already- and some were opposed to it. There was indeed a DOUBT whether the law of suppliance applied or not in that case. The solution was to be found in Canon 209: as long as the doubt is positive and probable, Ecclesia supplet, and so, if the minister acted in the hypothesis that the error of law sufficed, the Church supplied jurisdiction, even though it may have happened that in fact such error was not sufficient.

DOUBT is that state of mind in which the intellect suspends judgment between two or more opposed propositions; the intellect cannot assent to one or the other without the fear of erring. If the mind assents to one of these propositions with prudent fear that the contrary might be true, such a state is called OPINION. This, too, in a broad sense may be regarded as doubt. A consultation of any moral treatise De Conscientia will confirm it.

A doubt is POSITIVE if there are serious motives of an objective foundation for assenting to two or more of the opposed propositions; it is NEGATIVE if the entire reason for doubt consists in the absence of motives capable of provoking prudent assent. Positive doubt is always PROBABLE doubt, since the motives on either side are serious ones.

DOUBT OF LAW is verified when there is a doubt concerning the existence or the extent of the law. DOUBT OF FACT is present when it is question whether or not a particular fact or circumstance is verified.

By virtue of Canon 209, New Code Canon 144, in positive and probable doubt either of law or of fact on the part of the minister, the Church supplies jurisdiction both for the internal and for the external forum.

Let us see some authors in order to complete and understand better this consoling doctrine, which resolves so many difficulties.

* Woywood-Smith, A Practical Commentary on the Code of Canon Law, 1962, # 162: Generally speaking, a negative doubt means that one has no reason to serve as a basis for deciding a question, and it is about equal to ignorance on that question. A positive doubt means that one has a good reason for deciding a question one way, but that there is also a reason in favor of a contrary decision of the question. For example, the reasons for and against the existence of jurisdiction in a certain case create a positive doubt; and if the reasons on both sides are of such weight so as to create a bona fide doubt, the Church supplies the jurisdiction, even though actually the person did not possess it.

* Van Kol, op. cit., # 315: Dubium iuris est dubium doctrinale de ipsa exsistentia et extensione iurisdictionis, praesertim propter disputationes auctorum; dubium facti est dubium de exsistentia mere physica alicuius facti, ex quo iurisdictio pendet. Requiritur igitur dubium verum seu fundatum; mera ignorantia legis aut levis suspicio non sufficit.

* Regatillo and Zalba, op. cit., # 403: Si est dubium positivum et probabile seu fundatum, iuris vel facti, supplet (Ecclesia), etsi sit privatum, i. e. unius vel alterius, non publicum; nam canon non distinguit. Sed ut suppleat, dubium iuris debet esse obiectivum, i. e. fundatum in ipsa lege, quae clara non sit aut diversimode a doctoribus intelligatur.

3.3. WHAT IS REQUIRED TO USE SUPPLIED JURISDICTION IN CASE OF DOUBT?

Is it LICIT? When? The authors are clear, even the strictest ones: NO REASON OR A VERY LIGHT ONE is required to use supplied jurisdiction on the grounds of Canon 209.

Cappello, op.cit. # 257, 4: In dubio positivo et probabili iuris sacerdos valide et licite utitur iurisdictione, v.g. absolvit, etiam SINE CAUSA, quia Ecclesia CERTO supplet. Porro causa illiceitatis foret vel damnum poenitentis vel irreverentia erga sacramentum seu periculum nullitatis; atqui ex can. 209 utrumque abest; ergo. Quod valet, generatim, etiam ubi agitur de dubio positivo et probabili facti.

Merkelbach, Summa Theologiae Moralis, 1949, De Sacramentis, # 586: Ad utendum autem dubia iurisdictione, in dubio, scil. positivo et probabili sive iuris sive facti, specialis ratio necessitatis non requiritur.

Cabreros, Lobo and Morán, Comentarios al Código de Derecho Canónico, 1963, vol. 1, # 512: La sentencia moral más generalizada afirma que para usar lícitamente de la potestad suplida en caso de duda positiva y probable, tanto del sujeto activo como del pasivo, basta una causa leve.

3.4. DOES IT APPLY ALSO TO MARRIAGES?

Yes, it does. Canon 209 does not make any restriction in the suppliance of jurisdiction, and the New Code is explicit, Canon 144, #2, applying the same norm to the faculties required in order to assist to marriages.

Lazzarato, op. cit., presents in cause # 893 the case of an Austrian priest in Russia who blessed one marriage without having the required faculties and without fulfilling the conditions for common error. I copy some of the points which refer to our case: Valide assistit matrimoniis qui parochus putativus est ratione can. 209. Ecclesia iurisdictionem supplet publicae utilitatis causa, si minister, suae potestatis haud certus, putat tamen, se iurisdictionem habere, ob dubium grave et probabile, seu ob gravem rationem, sive iuris sive etiam facti, qua ad suam iurisdictionem affirmandam movetur.

3.5. APPLICATION TO OUR CASE

It cannot be more clear: when the minister has an objective doubt, founded on the law itself or on the authoritative interpretation of the law, concerning the existence of his jurisdiction, the Church supplies the jurisdiction, even though the minister may have no jurisdiction at all.

Let us see some of the many practical applications which illustrate this doctrine:

* A priest of the Society of Saint Pius X doubts about the existence of common error for confessions or for marriages in his chapel. He realizes that there are many canonical reasons and arguments for it, but he still doubts because the Bishop or the chancellor of the diocese say that such absolutions and marriages are invalid. The Church supplies jurisdiction because his doubt of law is positive and probable.

* The same priest is taking care of a sick person and, even though there are many indications that the patient is getting worse, he doubts whether there is or is not a danger of death. Can he administer the Sacrament of Confirmation validly using the faculties of New Code Canon 883, 3? Yes, he can, because in a positive and probable doubt of fact the Church will certainly supply the jurisdiction which he may not have if the patient is actually not in danger of death.

* The same scrupulous priest wonders if the extraordinary form of marriage contemplated in Canon 1098, New Code Canon 1116, is to be applied to the case of a couple who considers that they have no moral access to the Modernist parish priest. After hearing their reasons, he realizes that they have serious motives in arguing a grave spiritual danger and therefore impossibility of moral access to a Modernist parish priest. He can be at peace because, in the worst case, his doubt of fact and of law puts him in a state in which the Church will supply for the jurisdiction required to validly assist to such marriage.

* Our Hamletic priest is now trying to justify this particular absolution on the grounds of Canon 2261, New Code Canon 1135, which recognizes to any faithful the right to ask a Sacrament or Sacramental from an excommunicated priest, a fortiori from a priest of our Society. Did he really ASK? I think he DID. Does the interpretation of this Canon apply to our case? It should, it seems it does, but maybe someone else will not agree . . . He agonizes! Well, since his doubt is an objective one, founded upon the law and upon the commentators, on facts and not on mere conjectures, he can be sure at least that the Church supplies in virtue of Canon 209.

We can and we should have recourse to the suppliance in case of positive and probable error in order to answer those adversaries who oppose our canonical reasoning. Let us tell them that because our case is supported on solid canonical grounds, on the old and the new legislation, on the practice of the Church, on the sentences of the Roman jurisprudence, on the doctrine of renowned authors, even on favorable opinions of Cardinals, Bishops and diocesan chanceries throughout the world, we can definitely affirm that in such doubt Ecclesia supplet iurisdictionem. The Vatican itself takes our arguments so seriously that in the Protocol of May 5, 1988, the Holy See called for a sanatio in radice AD CAUTELAM of the marriages celebrated by our priests without the required delegation. So for the Vatican there is a chance that such marriages are valid. Again, this doubt is positive and probable, and once more the Church supplies jurisdiction.

Let us keep in  mind that marriage enjoys the favor of the law, and that in case of doubt one must stand for the validity of the sacrament. Both the traditional and new legislation concord in this point.