Jurisdiction During The Great Apostasy

JURISDICTION DURING THE GREAT APOSTASY In this discussion, we have covered much ground. To make reading a little easier, we have placed our conclusions first.

SUMMARY 1. In the proper administration and reception of the sacraments, licitity is required, as well as validity. 2. In cases of validity, we must take the safe course, except in cases of extreme necessity. 3. Jurisdiction has been an essential part of the Church, from the time Christ gave Peter the keys to the Kingdom of Heaven. These keys are entrusted exclusively to the Pope, who has full power to govern their use. The Pope appoints the Ordinaries who, in turn, appoint the Pastors. 4. Jurisdiction is territorial, and may not be exercised outside of one's territory. 5. Jurisdiction may only be exercised over subjects. 6. Jurisdiction is divided into two kinds: Ordinary and delegated. Ordinary is attached to an office, and is lost with the loss of the Office. Delegated is attached to a person, and it lost by expiration of the delegation or removal of the delegation by the competent superior. 7. Heretics and apostates automatically lose all ordinary jurisdiction. 8. Jurisdiction is required for the absolution of sins. If jurisdiction is lacking, the absolution is invalid. 9. Delegation for absolution comes from two sources: The ordinary (or, of course, the Pope) or the law. In the first case, delegation may not be presumed. In the second case, priests must be approved for Confessions, except in cases of danger of death. 10. Any attempted absolution brings an automatic suspension from every act of orders, rendering them sinful. Also, the Confession is invalid. 11. Jurisdiction is required for the validity of the following acts: (a) Confirmation, when given by a priest; (b) The Nuptial Blessing; (c) Absolution. 12. Jurisdiction is required for the licitity of the following acts: (a) Preaching; (b) Solemn Baptism; (c) Editing of books and writings, and their approval; (d) Erecting of chapels, churches, parishes, dioceses, missionary territories, etc.; (e) Conferring Holy Orders; (f) Confirmation by a bishop.

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13. Each individual case must stand on its own merit. There are no perpetual exceptions to the law. 14. Laws are to be interpreted according to the norms of Canon 6, which states that laws which do not change the former discipline are subject to their traditional interpretation. In case of doubt about a change, the old law must be followed. 15. All laws lose their force when there is doubt as to the existence or application of the law. But this must be thoroughly researched before a law is "discarded." The doubt must be well founded, and based upon the will of the lawmaker. 16. Canon 20 provides the method for proceeding when there are no provisions for a certain case. However, there are provisions for the above cases, and the principles of this Canon do not apply. Canon 20, we believe, may be used to prove that Mass may be said in the home, when Canon Law demands a Church or oratory. 17. Canon 209 provides jurisdiction in certain cases. The first case is that of "common error," concerning the possession of jurisdiction. We believe this to be only for use in cases that have already happened and not for supplying jurisdiction for our use in future cases. To desire error is to desire the opposite of what God desires; truth. 18. There is an important quote on jurisdiction we would like to present: "If one stresses and stretches 'common error' to its breaking point, a priest who is not very zealous in the observance of the laws and regulations, may easily satisfy himself that he may step into any Church in any diocese to hear confessions or exercise other acts of the ministry, for which authorization should have been obtained, because the Church supplies jurisdiction. One may say that his action is illicit, but that Canon 209 saves validity of the acts. There is reason to doubt that the Church supplies jurisdiction in that manner, for it is open to too much abuse." (Homiletic and Pastoral Review, by Vermeersch and Creusen, Vol. XXXIII, No. 2, Nov. 1932, p. 179.) It is our believe that "traditionalist" operations fall into this category of abuses, which Vermeersch and Creusen warn us about. We believe that many priests are in good faith. But even with this belief, we cannot attend their masses, confessions, etc., unless we are convinced that these acts are pleasing to God (valid and licit). CONCLUSION: We are, for the most part, without the sacraments. Every priest must prove his reason for administering the sacraments he administers before we may approach him for any sacrament.

WHEN AND WHERE MAY WE RECEIVE THE SACRAMENTS? From whom may we receive the sacraments? First, the Church absolutely forbids us to receive the sacraments from the Orthodox and the old Catholics. (Canon 882, however, may be an exception. This shall be discussed later.) These people certainly have valid sacraments, but this is NOT enough. We also know from reading and research, that the sacraments of the Lefevbrites and Thucites must also be avoided. The question then, is this: Where may we go for the sacraments? What latitude does the Church allow us in interpreting canon law? The following error was condemned by the Holy Office on March 4, 1679 (DZ 1151): "It is not illicit in conferring the sacraments to follow a probable opinion,

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regarding the value of the sacrament, the safer opinion being abandoned, unless the law forbids it, convention or the danger of incurring grave harm. Therefore, one should not make use of probable opinions only in conferring baptism, sacerdotal or episcopal orders." Let us rephrase this to make it an acceptable statement. "It is illicit in conferring the sacraments to follow a probable opinion, regarding the value of the sacrament, even when the law (or convention) forbids it, or in cases of grave harm. Therefore, one should never make use of probable opinions in the conferring of the sacraments." Let us firm up this opinion from Henry Davis, S.J., author of Moral and Pastoral Theology, Vol. III, p. 27-29, 1938): "In conferring the Sacraments (as also in Consecration in Mass), it is never allowed to adopt a probable course of action as to the validity and to abandon the safer course. The contrary was explicitly condemned by Pope Innocent XI. To do so, would be a grievous sin against religion; namely, as an act of irreverence towards what Christ, Our Lord, has instituted; it would be a grievous sin against charity, as the recipient would probably be deprived of the graces and effect of the Sacrament; it would be a grievous sin against justice, as the recipient has a right to valid sacraments, when the minister ex officio (from his office) or not, undertakes to confer a sacrament. ...The same is true of one who uses a probable opinion in the reception of a Sacrament, in respect of its matter or form, for his action exposes the Sacrament to invalidity." Let us remember, this only applies to whether a Sacrament is valid or not. We must be certain of validity, or we may not proceed. (There are exceptions, which are enumerated by Davis.) (The exceptions mentioned above, are excerpted below from Moral and Pastoral Theology, by H. Davis, Chap. VII, The Use of Probable Opinions, Sections One and Two.) "When it is a matter of receiving the actual grace or effect of a Sacrament that is valid, a solidly probable conviction of fitness to receive is sufficient, for moral certainty cannot be obtained except by sacramental confession, and this, apart from reception of the Holy Eucharist, is not prescribed. For it is well said by authors, that if absolute certainty were necessary, no one in conscious mortal sin could ever receive a Sacrament of the living, such as Marriage, without a very serious effort to make an act of contrition or without previous confession, and since this practice must be judged to be extremely troublesome, and its imposition the cause of continual anxiety and scruples, it must certainly be considered unnecessary. Such being the difficulty, the recipient of a Sacrament of the living who has good probable reason for thinking that he is in the state of grace, does not act rashly nor irreverently if he is content with that probability as to his state of grace. When, therefore, such grave inconveniences are present, it is permissible to act on probable opinion in respect of the effect and fruit of the Sacrament, but not otherwise.

Probable Opinion in Necessity "In cases of urgent necessity, as when a dying child is to be baptized, and when it is impossible to secure certainly valid matter, viz. natural water, the child should be baptized with matter that is probably valid, and, indeed, the more probably valid. But to do so is not to abandon the safer method for a less safe method, since the safer method is, ex hypothesi, not possible. The same may be said of anointing a dying person with oil of catechumens, if the oil of the sick is not available. But since the Sacrament in such cases, 3

is not certainly valid, it must be conditionally repeated, if possible. Though the safer opinion may not be rejected in favor of a merely probable opinion in conferring or receiving the sacraments, nevertheless, a perfectly safe opinion may be followed, though its contrary is safer, for a safe opinion is a morally certain one, and more than that cannot reasonably be demanded. "Furthermore, it may happen that a penitent is greatly distressed as to the value of his sorrow in confession. If this state of mind is frequent, and if it is the cause of great disquiet and anxiety, he may receive the Sacrament in virtue of his probable conviction that his sorrow is sufficient; the same may be said of a priest who consecrates in Mass, but is in frequent anxiety as to his intention, or the confessor who continually doubts, where others would not doubt, about the disposition of penitents. In such cases, a probable opinion concerning the validity of a Sacrament, where the human element enters, is sufficient, since otherwise, the conferring and the reception of the sacraments would become a source of perpetual anxiety, and in not a few mentally conceived, but if publicly repeated, the condition should be expressed in words. "Ordination that has been doubtfully bestowed must be repeated conditionally and secretly. The Holy Office adds the phrase facto verbo cum Sumo, in order that Masses celebrated by the ordinand, which may have been invalid, may be supplied out of the treasury of the Church, so that the conditionally re-ordained priest is not obliged to repeat the Masses already said by him." (End of excerpt.) "Laws made for the purpose of safeguarding against a common danger bind, even if in a particular case there is no danger." (A Practical Commentary on the Code of Canon Law, by Woywod--All Canons are quoted from this source.) When dealing with validity, we must always take the safe course. Probabalism may be used in the licitity of sacraments, but only with extreme caution. One such case is the probable permissibility of Mass in the home, although canon law forbids it. The opinion in favor of the violation of the law must be probable, not just possible and supported by reasoning. Also, the law in question must not be one which is to protect us from a common danger; i.e., law requiring priests to prove that they are priests, when wishing to say Mass in a place where they are not known. (Canon 804.)

WHAT IS JURISDICTION? Jurisdiction is the authority of the Church to command, preach, bind, and loose. St. Thomas includes jurisdiction as one of the keys committed to St. Peter. (Summa Supplement, Q-19, Article 2.) Canon 218 and 219 state that the Pope has supreme jurisdiction over the faithful. "And I say to thee that: Thou art Peter; and upon this rock I will build by Church; and the gates of hell shall not prevail against it. And I will give you the keys to the kingdom of heaven. And whatsoever you shall bind on earth, shall be bound also in heaven; and whatsoever you shall loose on earth, it shall be loosed also in heaven." (Matt. 16:1819.) "I answer, that there are two kinds of keys. One reaches to heaven itself directly by remitting sin and thus removing the obstacle to the entrance to heaven; and this is called the key of order. Priests alone have this key, because they alone are ordained for the people in the things which appertain to God, directly. The other key reaches to heaven 4

not directly, but through the Church Militant. By this key, a man goes to heaven, since by its means, a man is shut out from or admitted to fellowship of the Church Militant, by excommunication or absolution. This is called the key of jurisdiction in the external court; wherefore, even those who are not priests can have this key; e.g., archdeacons, bishops elect, and others who can excommunicate. But it is not properly called a key to heaven, but a disposition thereto." (Summa Supplement, Q-19, Article 3.) Further study in canon law shows that all jurisdiction proceeds from the Pope through the bishops and pastors. "The Roman Pontiff legitimately elected obtains, from the moment he accepts the election, the full power of jurisdiction by divine right." (Canon 219.) "The bishops are the successors of the Apostles and are placed by divine institution over the individual churches, which they govern with ordinary power under the authority of the Roman Pontiff. They are freely appointed by the Pope." (Canon 329.) The Pope and bishops (also called ordinaries), have full jurisdiction over their territories. (The Pope's territory includes the whole of the world.) Pastors have limited ordinary jurisdiction. Much of their jurisdiction may not be delegated, although they possess it ex officio (from their office). One example is the faculty for confessions, which the pastors have over all their parishioners; this faculty cannot be validly delegated. How then, is ordinary jurisdiction received? Ordinary jurisdiction is received by the valid appointment or election to an office. The jurisdiction of each office is outlined by the external and internal forum. The main levels of jurisdiction are the Pope, ordinary, and pastor. Under both the Pope and the ordinary are vicars, who possess, ex officio, a part of the jurisdiction of their immediate superior. "Ordinary power of jurisdiction is that which is automatically attached to an office; delegated power is that which is committed to a person. Ordinary power may be either proper or vicarious." (Canon 197.) Who are we subject to? Canon 87 states: "By baptism, a person becomes a subject of the Church of Christ, with all rights and duties of a Christian, unless, in so far as rights are concerned, there is some obstacle impeding the bond of communion with the Church, or a censure inflicted by the Church." "The power of jurisdiction may be exercised directly over subjects only. The judicial power, both ordinary and delegated, may not be exercised for one's own convenience, nor outside the proper territory." (Canon 201.) Therefore, jurisdiction for either forum, ordinary or delegated, may be exercised over subjects only. The Ordinary of Missouri may not perform any jurisdictional act in Kansas without permission from law or the Ordinary of Kansas. This example may also be extended to delegated jurisdiction. A priest with faculties from the Ordinary of Missouri for Confession, may not validly hear confessions or grant absolution in Kansas. (The exceptions to this are discussed under Confession.) For this priest to validly hear confessions in Kansas, he must seek faculties from the Ordinary of Kansas. It is written in the appendix of Gratian: "On the contrary, it is not lawful for every priest to loose or bind another priest's parishioner. Therefore, a priest cannot absolve everybody." (Cannot indicates absolute impossibility.) "He who claims to possess delegated jurisdiction, has the burden of proving the claim." (Canon 200.) We add that he who claims to have ordinary jurisdiction, has the burden of proving that he validly received and still retains the office in question.

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HOW IS JURISDICTION LOST? There are several ways of losing jurisdiction, either ordinary or delegated. We shall limit ourselves to those which are most likely to occur. "The delegated power expires in the following cases: (1) when the mandate has been executed; (2) when the time of delegation has expired; (3) when the final motive or cause of delegation ceases; (4) by recall of the delegation by the delegating superior conveyed directly to the delegate; (5) by renunciation of the delegate, conveyed directly to the delegating superior and accepted by him. Delegated jurisdiction does not cease on the retirement from office of the delegating superior, except in the two cases mentioned in Canon 61." (Canon 207.) Canon 61 deals only with rescripts. It is interesting to note that censures do not remove delegated jurisdiction. "Anyone capable of performing a human act may resign an ecclesiastical office for a good reason, unless resignation is forbidden to him by a special prohibition." (Canon 184.) "The validity of a resignation requires that it be made in writing or orally before two witnesses; or by a proxy appointed by special mandate." (Canon 186.) "The superiors shall not accept resignations, unless there is a just and reasonable cause for them. The local ordinary shall accept or reject resignations within one month." (Canon 189.) "The resignation having been legitimately made and accepted, the office becomes vacant after the resigned has received notice of the acceptance. The resigning cleric remains in office until he has received authentic notice of the acceptance of his resignation by the superior." (Canon 190.) "The deprivation of an office may be incurred, either according to the law itself, or through the act of the legitimate superior. The Ordinary cannot deprive a cleric of an irremovable office, except by the process described by law. In the case of a removable office, the deprivation may be decreed by the Ordinary for any just reason, according to his prudent judgment, even though there is no offense on the part of the cleric." (Canon 192.) In short, any cleric may resign; the office becomes vacant when the legitimate superior may "fire" a cleric from an office for any just reason, unless the person in question is an irremovable pastor or the like. An illegitimate superior can do nothing; and likewise, a resignation or deprivation to such an authority is ipso jure (by law) invalid. We advise any cleric, then, to check into the legitimacy of the last superior he dealt with. (Also, an office may only come from a legitimate superior.) There is one last way to lose an office. "All offices shall become vacant, ipso facto, by tacit resignation in the following cases: "(4) If a cleric has publicly lapsed from the Catholic Faith; ... ." (Canon 188.) I have only quoted this section, as the other reasons are not of much importance to us now. Public defection includes heresy and apostasy. Some canonists include schism, whereas, some do not. What if we have doubt about the heresy of a certain cleric? In other words, did he or did he not commit heresy willfully and incur the censure of Canon 2314? In this case, we apply Canon 2200: "...Given the external violation of a law, the evil will is presumed in the external forum until the contrary is proved." Since resignation is in the external forum, the office is lost if we have a material violation of a law. There are many excusing causes from the censure, but he may not claim the office until the person in question proves his innocence. Woywod goes on to state: "The rule here stated, is evidently for the public welfare." Canon 21 obviously comes into play here. We must observe this law always. 6

JURISDICTION AND THE SACRAMENTS Now that we have some idea of the sources and use of jurisdiction, we can proceed to practical application. Six sacraments require jurisdiction for some part of the administration. Some require jurisdiction only for their licit administration, such as Extreme Unction and Holy Orders. Therefore, the illicit conferring of Extreme Unction is impossible, in our opinion, as danger of death is usually allowed the greatest latitude. (We, however, state that this is only our opinion!) Of course, we are to avoid illicit sacraments, when we know they are illicit. More importantly, we must always avoid any doubtfully valid sacrament, or commit mortal sin for seeking it out. (There are exceptions, but these are few and are in cases of true necessity. "Necessity: That which cannot not be"-Nathaniel Webster.) Let us first proceed to those places where jurisdiction is required for validity.

CONFESSION "For the valid absolution of sins, the minister requires, besides the power of Orders, either ordinary or delegated jurisdiction over the penitent." (Canon 872.) Ordinary jurisdiction, as we have stated above, is possessed by the Roman Pontiff for the whole Church, local ordinaries for their subjects only, and pastors for their parishioners only. Canon 873 adds cardinals for the whole Church and superiors of certain orders for their subjects. "The ordinary jurisdiction for the administration of the Sacrament of Penance ceases with the loss of the office to which that jurisdiction is attached...." (Canon 873.) Now we proceed to delegated jurisdiction. It should be noted, that although pastors have ordinary jurisdiction, the Church has decided that they cannot validly delegate their jurisdiction for confessions. "For the valid hearing of confessions, it is necessary that jurisdiction shall have been explicitly granted, either in writing, or orally." (Canon 877.) "The extent of delegated jurisdiction is restricted to the boundaries of the respective territory." (Jone Nos. 576-577.) There are two cases of delegation by law. "In danger of death, all priests, though not approved for confessions, can validly and licitly absolve any penitent from any sins and censures, although reserved and notorious, even if an approved priest is present. Canons 884 and 2252, however, remain unimpaired." (Canon 882.) Canon 884 refers to the absolution of one's accomplice in a sin of impurity; Canon 2252 refers to absolution from censures inflicted by a superior. "On an ocean voyage (extended to plane travel by Pius XII), all priests may hear confessions during the time of the voyage and absolve the faithful who travel with them (even though the boat may pass through districts subject to various ordinaries or stop for awhile in some port), provided they have been properly approved for confessions, either by the bishop of their own diocese, or by the bishop of the port where they take the boat, or by the ordinary of any of the ports at which the boat calls. Whenever the boat stops at a port during the voyage, such a priest may hear confessions and absolve not only people

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who for any reason enter the boat, but also if the priest goes ashore for awhile, persons who request him to hear their confessions, and he may absolve them even from sins reserved to the local ordinary." (Canon 883.) There are several important points in the above Canon. First, in cases of danger of death, the faculty has been extended to any priests, but in this case, only those approved for confessions in the first place. The Church is very much intent on having priests properly trained and qualified for confessions before they ever hear a confession. "A priest who presumes to hear confessions without the necessary jurisdiction, is automatically suspended a divinis; he who presumes to absolve from reserved sins (without the necessary jurisdiction over those sins), is automatically suspended from the hearing of confessions." (Canon 2366.) These penalties are in addition to the fact that such confessions would be invalid and fruitless. "Suspension a divinis forbids the exercise of every act of the power of orders which one obtained, either by sacred orders or by privilege." (Canon 2279.) In other words, any priest who attempts to hear confessions without jurisdiction, not only opens the faithful to the danger of invalid confessions, but also bars himself forever from the exercise of orders. (By Canon 188, all bishops at Vatican II left the Church. Therefore, there is no one capable of absolving from the censure to my knowledge.) Any future exercise of orders is mortally sinful, except cases as envisioned by Canon 882 and Canon 1098.

BAPTISM One does not think of baptism as a jurisdictional act. In fact, private Baptism is not; but Solemn Baptism is. "The ordinary minister of Solemn Baptism is the priest. Its administration, however, is reserved to the pastor or another priest acting with the permission of the pastor or of the local ordinary, which permission is legitimately presumed in case of necessity." (Canon 738.) "No priest is allowed, without due permission, to baptize solemnly, even a resident of his own parish in the territory of another pastor." (Canon 739.) "The proper place for the administration of Solemn Baptism is the baptistery in a Church or public oratory." (Canon 773.) The insistence that our situation presents "necessity," is really an open question. However, since only a true Catholic priest without censure may be asked, this question will very rarely come up. (It is our belief that few of these priests, indeed exist.) Also, is one permitted to presume the permission of a non-existent person?

MARRIAGE Rather than cover the jurisdiction necessary for marriage, we will quote the Canon which covers our present situation. "If the pastor, or the local ordinary, or a priest delegated by either, who should, according to Canon 1095 and 1096 assist at the marriage, cannot be had, or the parties cannot go to him without great inconvenience, the following rules are to be observed: "1. In danger of death, marriage may be validly and licitly contracted in the presence of two witnesses only; even apart from the danger of death, marriage may be thus contracted, if it can be prudently foreseen that this state of affairs (namely, the great

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difficulty of getting an authorized priest to witness the marriage) will continue for a month; "2. In both cases, if there is at hand another priest who can be present at the marriage, he should be called and should assist at the marriage together with the witnesses, without prejudice, however, to the validity of the marriage contracted only before the witnesses." (Canon 1098.) "The nuptial blessing may be given only by the priest who has the right to witness marriage validly and licitly, or by his delegate." (Canon 1101.) Canon 462 further reserves this power to the pastor, who may delegate another in his place. We shall not go into the other considerations for marriage here.

EXTREME UNCTION AND HOLY EUCHARIST It is our belief that the illicit conferral of Extreme Unction is impossible. Although the conferral of this Sacrament is reserved to the pastor, since there is danger of death, we believe that a case similar to that of Canon 882 exists. There is no jurisdiction required in the celebration of Mass or the administration of Holy Communion. Although there are no restrictions as to the time and place of Mass, we believe there is sufficient precedent for Mass in the home.

HOLY ORDERS This Sacrament also requires jurisdiction for licitity. In some cases, without the required jurisdiction, the ordained remains for canonical purposes, a layman. We shall outline the basics only with reference to the canons. Canon 948 states the distinction between the laity and the clergy. Canon 949 states, that the Major Orders are priesthood, diaconate and subdiaconate; the other orders being minor. The bishop is the ordinary minister of Holy Orders, although certain priests, by law, may ordain to the minor orders. Canon 953 reserves episcopal consecration to the Pope; Pius XII increased the penalty for consecrating without papal permission to an excommunication most especially reserved to the Holy See. "Everyone shall be ordained by his own proper bishop or with legitimate dimissorial letters received from him." (Canon 955.) The reason is simple: Priests must be properly trained and have a job to be assigned to. The bishop, who ordains, is responsible for the proper training and moral character of his priests.

CONFIRMATION Again, jurisdiction is required for the licit conferral of a sacrament; and in some cases, for validity. "The ordinary minister of Confirmation is the bishop only. The extraordinary minister is a priest who, either by the common law or by special indult of the Apostolic See, has received the faculty to confirm. The following have this faculty by law: Cardinals (Canon 239, par. 1, Note 23), abbots and prelates nullius, vicars and prefects Apostolic. With the exception of cardinals, these clergy cannot validly make use of their faculty, except within the limits of their respective territory and during their term

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of office only." (Canon 782.) "Within his diocese, the bishop can confirm even strangers, unless an explicit prohibition of their own bishop forbids it. In the diocese of another bishop, a bishop must have at least the reasonably presumed permission of the local ordinary, except when he confirms his own subjects privately and without crozier and mitre." (Canon 783.) A bishop can always confirm validly; a priest can only confirm validly when he has faculties and only in the territory of his faculties. However, if either confirms outside his territory, the confirmation is illicit, and in the case of a priest, he loses any faculty to confirm (Canon 2365) and proceeds invalidly. "It is certain, that without special delegation by the Sovereign Pontiff, a simple priest cannot give Confirmation, either licitly or validly." (Homelitic and Pastoral Review, Article by Ernest Graf, O.S.B., Vol. XXXVI, No. 11, Aug. 1936, p. 1193.)

JURISDICTION AND THE SACRAMENTS PREACHING "Nobody is allowed to exercise the ministry of preaching, unless he has received a commission from the legitimate superior, either by special faculty or by appointment to an office to which the duty of preaching is attached by the Sacred Canon." (Canon 1329.) "Only the local ordinary can, within his territory, grant the faculty of preaching to the secular clergy and to non-exempt religious." (Canon 1337.) Basically, every act of teaching or preaching is governed by the Church. Parents have the exclusive right to train their children. Bishops have the exclusive right to preach.

BOOKS AND WRITINGS "Without previous ecclesiastical approval, even laymen are not allowed to publish: "1. The Books of Sacred Scripture, or annotations and commentaries on the same; "2. books treating of Sacred Scripture, theology, church history, canon law, natural theology, ethics, or other religious or moral sciences; books or pamphlets or prayers, or of devotion, or of religious, moral, ascetic, or mystical doctrine and instruction, and other works of a similar nature, even though they seem conducive to the fostering of piety; finally, other writings, in general, which contain anything that has a special bearing on religion or morality; "3. any reproductions whatsoever, of sacred images, whether they are issued with or without prayers." (Canon 1385, par. 1.) Canon 1384 extends these rules to newspapers, periodicals and all other published writings. (In the front of this book, you will find our reasoning for an exception to this law.)

OTHER ACTS Many other acts are also jurisdictional, and there is not room to cover them all. Such acts include the erection of chapels and churches; the erection of stations; the 10

erection of societies; the designation of cemeteries, etc. We request that Catholics study these areas, as well as the above.

ARE THERE EXCEPTIONS? There are certainly exceptions to the general norm in particular cases. Some of these cases are already envisioned by canon law. For others, we must seek a dispensation from the law. "A dispensation is a relaxation of a law in a particular case: It can be granted by the legislator; by his successor in office; by a superior legislator; and by a person delegated by the foregoing." (Canon 80.) Of course, with the defection from the faith of all superiors, there is no one to dispense. Are there other principles that might apply? First, St. Thomas in his discussion, limits exception to a case-by-case operation. In other words, there are no general exceptions to the law, but each case must be judged on its own merit. (Summa I-II. A96. Article 6.) We must remember that laws are enacted for the common good. In particular circumstances, the law does not fulfill this end. It is our belief, that if God had wished us to have the sacraments, He would have provided clear provisions. God wishes truth, not confusion. We shall, however, cover the principles in detail.

INTERPRETATION OF LAW Canon law provides for its proper interpretation in the first section (Canons 1-24). We shall proceed with a consideration of this point: Canon 6 gives the relationship between the prior law and the 1917 Code. This Code was simply a simplification of rules for the good of the Church, rather than a change of canon law. Laws, which are restated in the 1917 Code, are to be interpreted according to the fathers and doctors; laws, which are changed, in part, are to be interpreted as before, in what is not changed. In cases of doubt, whether there is a change, the old law must be adhered to. Also, all penalties not reiterated are abolished. This discussion of relation between the two laws is all important, as many cases need a most thorough study. "All laws, including invalidating and inhabilitating laws, lose their binding force in a dubium juris. In a dubium facti, the ordinary can dispense from the laws, provided there is a question of laws from which the Roman Pontiff usually dispenses." (Canon 15.) What is a "dubium juris" and "dubium facti?" In the "dubium juris," the facts of the case are clear and undoubted, but it is doubtful whether a certain law applies to the case. In the "dubium facti," the law is clear, but some facts or circumstances of the case are doubtful. "Laws are authoritatively interpreted by the lawmaker and his successor and by those to whom the lawmaker has committed the power to interpret the laws... ." (Canon 17.) "The ecclesiastical laws are to be interpreted according to the proper meaning of the terms of the law considered in their context. If the meaning of the terms remains doubtful or obscure, one must have recourse to parallel passages of the Code (if there are any) or to the purpose of the law and its circumstances and to the intention of the legislator." (Canon 18.)

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"If there is no explicit provision concerning some affair, either in the general or in the particular law, a norm of action is to be taken from the laws in similar cases, from the general principles of law applied with the equity proper to canon law, from the manner and practice of the Roman Curia and from the common and constant teaching of the doctors." (Canon 20.) Does this apply to our situation? If so, in what areas? First, we have just seen that we must take an interpretation from the meaning of the words and the intention of the lawmaker. But before we may continue, there is another principle: "Laws made for the purpose of safeguarding the public against a common danger bind, even if, in a particular case, there is no danger." (Canon 21.)

DOES CANON 20 PROVIDE AN EXCEPTION? There was a considerable period of time when St. John Marie Vianney was unable to hear confessions, although he was a priest. Could he say: "Well, I am saintly, therefore, the law does not oblige? Of course not. The only time in this period of his life when he could hear confessions, is in danger of death (Canon 882). Otherwise, the law binds. To use Canon 20, we must prove several things: 1. There is no provision concerning the affair. 2. There is no danger to the faithful, in any case considered. This proved, we then look to the sources named. So let us apply this to confession. Canon law requires jurisdiction for validity. Why? Because, before a confessor is approved, he must be investigated. Also, the Sacrament of Confession implies an ability to command. What if your confessor commands you to not fast, except on fast days? Does this command oblige under pain of sin? Only if the confessor has the ability to command. It is known that your pastor can command you to attend Sunday Mass, not to frequent a certain place of amusement, etc. This ability is the essence of jurisdiction. Why then, does the Church grant jurisdiction in cases of danger of death? Obviously, that sins may be remitted. In this case, the ability to command is less important than regaining the state of grace. Since jurisdiction is a concept from the beginning of the Church, we argue it still holds true. Canon law obliges. We may only confess to those with true faculties, either from law or by delegation, proved to us. There is no exception here; the law is clear. If we argue the opposite, the next thing we argue is that the Thucites may consecrate bishops. (The prohibition in this case does not effect validity, whereas, in the case of confession, it does.)

WHAT ABOUT CANON 209? "The Church supplies jurisdiction, both for the external and the internal forum: (1) In common error; (2) in a positive and probable doubt, whether of fact or law." (Canon 209.) Common error consists in the erroneous belief of all or nearly all the people of a place that a man has jurisdiction, when in actuality, he has not. We consider this for use in cases which have already occurred, not when contemplating a future action. Obviously, this principle may not be used to argue for jurisdiction. There must be another argument sufficient to create doubt. "A doubt of law exists when there is no certainty about the existence of the law. A doubt of fact exists when, despite the full

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knowledge of the existence of the law and its theoretical comprehension and extension to a particular fact, one has not that same certainty as to the existence of that fact or of all the circumstances juridically required for the assumption of existence." (Supplied Jurisdiction, According to Canon 209, Francis Miaskewicz, J.C.L., p. 180.) We shall refer to Fr. Miaskewicz further in this discussion. In Fr. Miaskewicz's work, he discusses the licit use of Canon 209. In cases of negative doubt, absolution may only be attempted in cases of extreme necessity, when the penitent must be warned of the probable invalidity. Cases used are that of yearly confession, or a priest's obligation to say Mass, when no true confessor is available. It must be remembered that such doubtful absolution does not dispose one to receive the sacraments of the living, except possibly Marriage. "But, in regard to positive and probable doubt of fact or law, wherein the Church will supply, if necessary, there is a remarkable reduction in the demands of canonists, regarding the sufficient reason that entitles the priest to exercise and the people to utilize a jurisdiction, which at most needs to be supplied conditionally." (Miaskewicz, p. 299.) In other words, there must be sufficient reason to believe that jurisdiction does exist before applying to Canon 209, to supply possible deficiencies. The priest or the faithful must have reason to believe that there is jurisdiction, or must be able to produce sufficient evidence that the Church would grant jurisdiction, or not hold the law to apply in all cases of this type. If either we or the priest err, we commit material sin and formal sin, if we know the true state of affairs. Canon Mahoney, in his Priest's Problems, is a little firmer on this subject, and we believe with good reason. We shall now quote from pages 15 and 16 of his work, Deliberate Use of "Common Error" Jurisdiction: "In a certain church, a number of visiting priests kneel in the church to make their thanksgiving after Mass. Are they justified in hearing confessions of the faithful when requested, even though they lack faculties in this or any other diocese, and even though there may be other priests available, properly approved, who could be easily asked? The alleged justification is that people, in general, think that all priests are able to hear confessions anywhere." He now goes on to quote Canon 209, 872, 874, and 2366, in Latin. I shall provide the English translation from Woywod: 'Canon 209. The Church supplies jurisdiction, both for the external and internal forum: (2) in common error;... 'Canon 872. For the valid absolution of sins, the minister requires, besides the power of Orders, either ordinary or delegated jurisdiction over the penitent. 'Canon 874. The ordinary of the place where confessions are to be heard, grant delegated jurisdiction to secular priests, as well as to religious (even of an exempt organization), to hear the confessions of all seculars and religious... 'Canon 2366. A priest who presumes to hear sacramental confessions without the necessary jurisdiction is automatically suspended 'a divinis'...."' "This view, which justifies hearing confessions in the above circumstances, is often followed in practice. We think, unhesitatingly, that it is a wrong view, because it nullifies the principle requiring jurisdiction, as well as Holy Orders, for the valid absolution of sin, a principle which is DOGMATIC and not merely canonical. "Its origin, no doubt, is in the now generally accepted doctrine that a 'common error' title to jurisdiction can exist de jure (from law), and that the title is verified even

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when the priest using it is well aware that he lacks any other title. The conditions in which 'common error' exists, are in much dispute, but assuming that it does exist, every writer on the subject requires a grave reason to justify its use knowingly, and this is clearly lacking in the case set out above." There are several conclusions to be drawn from the above. First, jurisdiction is a dogma of the faith, being one of the f keys delivered to St. Peter (see above). Therefore, to argue against the necessity of jurisdiction is heresy, which removes one not only from his jurisdiction in the Church, but from the Church itself. As we know, we must avoid heretics. We must tread very carefully in this area. "Common error" must be verified absolutely, before we may invoke it! "At the present state of the controversy on this point (applying Canon 209), most commentators on the Code say that a priest may not licitly hear confessions in common error, and if he does, he incurs the suspension of Canon 2366." Homiletic and Pastoral Review, Stanislaus Woywod, O.F.M L.L.B, Vol. XXXVIII, No. 8, May 1938, p. 849.) In our summary at the beginning of this article, we quoted Vermeersch and Creusen to the effect, that priests who are not very zealous in the observance of Canon 209, can easily justify all sorts of abuses in this regard, claiming that the Church safeguards his actions. To proceed in this manner makes a mockery of the law, which is NOT the intention of the Church. Vermeersch and Creusen do not hold the validity of such acts, and state that acts of this nature are illicit, and therefore, to be avoided.

ARE THERE EXCEPTIONS? Earlier, we mentioned St. Thomas and the principle he discusses in the Summa, I-II, Ouestion 96, Article 6. We wish to expand on this now. Question 90 of this part of the "Summa" begins St. Thomas' treatise on law. In Question 91, St. Thomas divides law into several types; eternal, natural, divine, and human. The first three types all originate from God and do not allow of dispensation. St. Thomas does not answer the question of whether ecclesiastical law falls, in any way, under the rules he cites on human law. It is my opinion that part of canon law does fall under human law, and part under divine law. The parts that fall under divine law, are those parts which are merely a restatement of some divine law principle. An example is Canon 1013: "The primary purpose of marriage is the procreation and education of children... ." Others exist throughout canon law. Rather than go into a long discussion on law, we will allow the reader to take the time to study this himself in the "Summa" and the first part of canon law. We will move on to Summa, I-II, Ouestion 96. Article 6, "The Power of Human Law: Whether He Who is Under a Law May Act Beside the Letter of the Law?" "...Now it happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases is very hurtful. Since the lawgiver cannot have in view every single case, he shapes law according to what happens most frequently, by directing his attention to the common good. Wherefore, if A CASE arise wherein, the observance of that law would be hurtful to the general welfare, it should not be observed. For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule; but, if it were to happen that the enemy are in pursuit of certain 14

citizens, who are defenders of the city, it would be a great loss to the city if the gates were not opened to them, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view. "Nevertheless, it must be noted, that if the observance of the law, according to the letter does not involve ANY SUDDEN RISK (emphasis mine) needing INSTANT REMEDY, it is not competent for everyone to expound what is useful and what is not useful to the state; those alone can do this WHO ARE IN AUTHORITY, and who on account of such like cases, have the power to dispense from the laws. If, however, the peril be so SUDDEN as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law." One cannot go on his way dispensing with laws, because of mere necessity. The necessity must be of an immediate nature before this mode of "interpretation" may be used. A typical case might be that of a pastor, who must discharge his duty of celebrating parochial Mass. Most of the parish is present, awaiting Mass, but the pastor has no chasuble, because it was destroyed the previous evening, and he has no way of acquiring one. He is unable to contact the local ordinary, because the phone lines are still out from the storm, which destroyed the chasuble. It is my opinion, that he may go ahead and celebrate the Mass without the necessary vestment, although it is possible that he might not be permitted to do so. However, if a vestment of the wrong color were available, he would probably be well advised to use it, instead. "Reply objection 1. He, who in case of necessity, acts beside the letter of the law, does NOT judge the law; but of a particular case in which he sees that the letter of the law is not to be observed. "Reply objection 2. He, who follows the interpretation of the lawgiver or his successor (see Canon 17), does not interpret the law simply; but in a case in which it is evident, by reason of the manifest harm, that the lawgiver intended otherwise. For, if it be a matter of doubt, he must either act according to the law, or consult those in power." According to these principles, we are NOT allowed to judge the law. We are allowed to interpret the law in the same manner as the lawgiver or his successor has. We are allowed to report this interpretation to others as an authoritative interpretation, binding on us. We are definitely NOT allowed to invent permanent dispensations from the law. In certain individual cases, the law may not bind, but these must be decided on a case-by-case basis. Any activity which leads toward a permanent dispensation, certainly is contrary to the mind of the lawgiver, unless he has indicated a contrary intention. The following is quoted from the Summa I-11, Ouestion 120: Of Epikeia or Equity: "...I answer that, as stated above (I-II, Question 96, Article 6), when we were treating of laws,...." (Note, that St. Thomas ties epikeia into the principle we have just discussed. We shall simply quote further from St. Thomas, to help us with this discussion.) "Thus, the law requires deposits to be restored, because in a majority of cases, this is just. Yet, it happens sometimes to be injurious, for instance, if a madman were to put his sword in deposit and demand its delivery while in a state of madness, or if a man were to seek return of his deposit, in order to fight against his country. In these and like cases, it is bad to follow the law, and it is good to set aside the letter of the law and follow the dictate of justice and the common good. This is the object of epikeia, which we call equity.

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"Reply objection 1. Epikeia does not set aside that which is just in itself, but that which is just as by law established. Nor is it opposed to severity, which follows the letter of the law when it ought to be followed... . To follow the letter of the law when it ought not to be followed is sinful. Hence, it is written in the Codex of Laws and Constitutions under Law V (5), 'Without a doubt, he transgresses the law who by adhering to the letter of the law, strives to defeat the intention of the lawgiver.'" Allow us to summarize. First, these principles apply only to purely ecclesiastical law and not in any way to divine law. Secondly, there must be an urgency to the action, and it must be a unique case. (The case may happen several times a year in different places, but we strongly doubt it will happen every Sunday or even once a month or on any regular basis. It may, by chance, happen to the same individual several times in his life, but it will not happen to many individuals in this way.) We are certain that this principle does not give a license to us to ignore the bulk of canon law, just because we happen to live in The Great Apostasy.

CANON 2261, PARAGRAPH 2 "1. An excommunicated person may not licitly consecrate or administer the sacraments, except in the following cases: "2. Without prejudice to the rule of paragraph 3 of this Canon, the faithful may, for any just reason, ask the sacraments and sacramentals from an excommunicated person, especially if there is no other minister available, and an excommunicated person, at their request, may minister to them without any obligation to inquire their reason for the request." (Canon 2261.) (Rule 3 simply states, that a vitandus may only hear confessions in danger of death.) This Canon does not state that it supplies jurisdiction. Canon 18 allows us to check parallel passages of the Code if there is still a question. Although, we think this Canon clear, we believe a look at Canon 2284 on the subject of suspension will clear this up even further. "When one has incurred a censure of suspension which forbids the administration of the sacraments and sacramentals, the precepts of Canon 2261 apply; when a censure of suspension has been incurred which forbids an act of jurisdiction, either in the internal or external forum; e.g., sacramental absolution, the act is INVALID...." (Canon 2284.) The canon goes on to state, that if no sentence has been issued, the act is only illicit, and not so if, in accordance with Canon 2261, paragraph 2, a person asks. However, the act of jurisdiction is invalid, as stated before, if no jurisdiction is possessed in the first place. Neither Canon supplies jurisdiction to anyone, but simply allows a person to administer the sacraments and sacramentals, when censured, if asked to do so for any JUST reason. Therefore, any application of these Canons is limited to acts not requiring jurisdiction, or for acts over which the cleric certainly possesses jurisdiction. David Bawden November 1985

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