Canon 2261 §2 and the Common Good

Canon 2261 §2 and the Common Good

© Copyright 2009, T. Stanfill Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author.)


1. Generally, ignorance of the law is no excuse, especially where invalidating and inhabilitating laws are concerned, (Canons 11 and 16).

2. Under Can. 17 only the Pope, his legitimate successors and those officially appointed or delegated by the true pope can authoritatively interpret the law. These authoritative interpretations of the law have the same force as the law itself.

3. Canons 872 and 879 concerning the necessity of jurisdiction for valid confessional absolution are invalidating laws. The Canon declaring the suspension for absolving without such jurisdiction is an incapacitating law.

4. Canon 15 concerning cessation of a law in the case of a doubt of law or doubt of some fact applies only to ecclesiastical law; jurisdiction laws are based at least in part on the divine law and the infallible decrees of the Council of Trent.

5. Ecclesiastical law must be reconciled with teachings on moral theology. It is the unanimous opinion of modern moral theologians that one can never use a probable opinion in receiving the Sacraments or the means of attaining eternal salvation.

6. Approved canonists writing before the death of Pope Pius XII teach that one cannot even reach a probable opinion concerning the assumption of supplied jurisdiction where no actual office, legitimately conferred, (or even the appearance of such an office), exists and/or where there also is common error about a clear and certain law.

7. Under Can. 19, laws concerning censures for heresy and schism cannot be relaxed, for these concern matters of faith.

8. Also under Can. 19, as demonstrated in the preceding article on illicit reception of the Sacraments, the faithful have no right to request the Sacraments from schismatics and heretics because this involves the commission of sacrilege. Because penitents cannot be validly absolved without valid confessional absolution, even though they make an Act of Perfect Contrition, they receive the Holy Eucharist unworthily.

9. Nothing excuses from the violation of whatever amounts to a contempt of faith or ecclesiastical authority. Grave fear and force in the external forum excuses from the censure involved in committing offenses that are detrimental to souls, but does not ordinarily excuse from grave sin itself.

10. Operating under the false presumption of supplied jurisdiction during a vacancy of the Holy See constitutes contempt of faith. When the Roman Pontiff alone can supply such jurisdiction and the last true Roman Pontiff, Pope Pius XII, infallibly condemned the use of papal jurisdiction during an interregnum, this is a contempt of faith. It is an obvious denial that the Pope’s jurisdiction is full and supreme and also is an implicit denial of the necessity of the papacy.

11. Therefore there is no possibility that a wide interpretation of Can. 19 could allow Traditionalists to operate under this canon for the “good of religion” since their delicts have been condemned by the Church as absolutely detrimental to and contemptuous of religion.

12. Nor can it be claimed that the common danger is the lack of Mass and Sacraments (although accidentally of course it is detrimental to the faith) and that for this reason the laws should be relaxed to provide these at all costs. The Church teaches that “The Sacraments are the usual, not the exclusive channels of grace. God who knows the hearts of men can provide in an unusual way for the unusual case,” (Rev. Raymond Kearney, “Principles of Delegation,” 1929).


In order to provide proofs that their celebration of Mass and administration of the Sacraments is justified, priests operating independently since the death of Pope Pius XII have had recourse to several Canons in the Code that they believe provide them with permission to conduct their ministry. Among these are Can. 11, Canons 15 and 16, Can. 19 and Can. 21. Canon 11 only clarifies which laws are to be considered as truly inhabilitating and incapacitating laws — those only which specifically state that an act is null and void or that a person is incapable of acting. Canon 15 reads that even invalidating and incapacitating laws cease in a true doubt of law or fact while Can. 16 provides that no ignorance excuses from the observance of invalidating and incapacitating laws unless the law itself specifically states this. Canon 19 tells us that those laws which decree a penalty, restrict one’s rights or establish an exception must be interpreted strictly. And Can. 21 (also tempered by Cans. 22 and 23) offers guidelines to determine when laws enacted for the common good may be regarded as no longer binding, and when they must be upheld. All these laws are interconnected, which is why all are mentioned here together.

Canon 11 — Certainly we can include Canons 872 and 879 on the necessity of jurisdiction for the validity of absolution as invalidating laws under Canon 11, since both these laws include the word invalid or not valid. And those who violate these canons are incapacitated from performing ecclesiastical acts thereafter (Canons 2279 and 2366), being suspended a divinis.

Canons 15 — Canon 15 was appealed to because wherever true doubt can be established, then the “opinion in favor of liberty” may be followed. Such doubts must be well founded, however. And as the heading covering Can. 15 indicates, such doubts of law necessarily refer to ecclesiastical law. It is difficult to understand how anyone could possibly consider laws governing sacramental jurisdiction (Canons 872 and 879) as only ecclesiastical law, originating as they do from Christ’s very sending of the apostles. This is why Rev. Miaskiewicz limits the application of Can. 209 in this regard: “The Church does not supply in common error about a clear and certain law. By way of illustration one may note the fact that the law clearly demands that a priest be duly authorized to hear confessions. Since this law is so clear, one could not term any common error concerning its existence as probable. Therefore the Church in all probability does not supply in cases of such common error. The Church supplies only in common error of fact, that is, in common error about the existence or the valid possession of a certain office or jurisdiction,” (“Supplied Jurisdiction According to Canon 209”). These priests understand they have no real office in the Church. And it is clear they have no written jurisdiction, nor any verbal transmission of the same that could be proven beyond a reasonable doubt.

Rev. Amleto Cicognani reminds us that even the Roman Pontiff cannot dispense from Divine law, although he may dispense from vows, oaths and unconsummated, ratified marriages “dependent on the human will rather than the law.” He also observes that a certain connection exists between Can. 15 and Can 209, in which the Church can supply jurisdiction for those who are lacking it. But as explained earlier, since the meaning of the Church in this Canon is, according to Rev. Miaskiewicz, the Pope, who, exactly, is supplying? Now we have a very real doubt about the suppletory principle itself, but that doubt is easily resolved: Pope Pius XII simply tells us that no jurisdiction reserved to the Roman Pontiff is to be exercised during an interregnum, and he says this with his “Supreme authority,” (“Vacantis Apostolica Sedis”). He also nullifies any action taken despite this prohibition, and the combination of these two components, Rev. Cicognani tells us under Can. 11, creates “a perfect law.” Again, one must remember that Can. 15 applies only to ecclesiastical laws. Pope Pius XII’s law deals with the entire deposit of faith and ecclesiastical discipline entrusted to him and his predecessors by Christ. This can scarcely be considered as a mere ecclesiastical law. Clearly Can. 15 cannot be said to apply to the situation at hand.

In explaining the laws governing Can. 15, Rev. Cicognani notes that teachings in moral theology will severely limit or prevent the use of Can. 15 in certain cases. These cases are those already mentioned elsewhere: A probable opinion may not be used

1) concerning the validity of a sacrament;

2) concerning the means necessary to eternal salvation and

3) where the rights of a third party are concerned. Rev. Dominic Prummer tells us on this head that these three prohibitions constitute the unanimous opinion of modern moral theologians, these opinions being binding on the faithful. For this reason alone, even if it could be argued that a certainly probable opinion exists for the granting of jurisdiction by Can. 2261 §2 or Can. 209 (and Revs. Miaskiewicz and Kearney deny that such an argument ever could be made), that probable opinion could not be used to allow the reception of the Sacraments in this case.

Canon 16 — Under Can. 16, the Church teaches that Traditionalists and others cannot plead ignorance of the invalidating and incapacitating laws as an excuse for not observing the law or incurring penalties. Clerics are presumed to know the law; Rev. Cekada tells us that no one but (illicitly) trained clerics know the law and therefore only they can opine upon it, so based on his statement, we assume they all know the law. Even affected ignorance of a law, or ignorance sought on purpose (affected ignorance), does not excuse, since Rev. Cicognani tells us this is equivalent to fraud. If error can be proven concerning the understanding or application of invalidating and incapacitating laws, then this might diminish liability, but generally does not excuse from it entirely. Again, we remain under the heading which deals with ecclesiastical laws; infallible laws and teaching are not covered under this canon. Any circumstances that might possibly excuse from observance of ecclesiastical law, and they are few and far between, would need to be evaluated by someone in a position of authority and this is not possible today. Generally, ignorance of the law is no excuse. The interpretation of the law is dealt with in the succeeding canon, Can. 17, which states that only the Pope, his legitimate successors and those officially appointed or delegated by the true pope can authoritatively interpret the law.

Canon 19 — Canon 19 states that those laws “which decree a penalty, or restrict the free exercise of one’s rights, or establish an exception to the law are to be interpreted strictly.” Some believe that in the case of penalties, since no declaration can be made in the matter today, it can be assumed that any cleric (or layperson) who has at one time belonged to a non-Catholic sect does not automatically suffer ipso facto censure, as Can. 2314 and 2316 state, until a declaration by a superior is made. They believe clerics may be considered as tolerati, and hence are free to administer the Sacraments and celebrate Mass on the request of the people under Can. 2261 §2. Or they believe that the laws concerning penalties, even where heretics and schismatics are concerned, must be relaxed in favor of religion, for the sake of the common good. But the Holy See does not share this belief.

Three-year probation for heretics and schismatics

As Rev. Benedict Pfaller observes, Can. 646 demands that in order for a religious to be admitted to an institute, he/she must certainly be a Catholic. This is considered a conditio sine qua non. Rev. Pfaller further observes that, “A religious who ceases to be a Catholic, who bids farewell to the Catholic Church, is rightly considered as legitimately dismissed from the religious institute…A public apostate from the Catholic faith is one who publicly renounces the Catholic Church. Thus the religious would renounce the Catholic faith in passing over to a non-Christian group such as Buddhism, Mohammedanism, some well-defined cult of paganism, Judaism, etc.; or in joining a Protestant, heretical, non-Catholic Christian sect or a schismatic church; or in joining any professedly and manifestly anti-Catholic group, such as a league of Freethinkers, or, finally, in openly denying even one article of the Catholic faith…On July 30, 1934, a response of the Pontifical Commission for the Authentic Interpretation of the Code…state(d) that the declaration of fact is not necessary in order that a religious be considered as ipso facto legitimately dismissed…The religious must be considered dismissed even before the declaration of the fact takes place,” (“Ipso Facto Dismissal of Religious,” Catholic University of America Canon Law dissertation, 1948, Volume 34, Number 7, page 743-4, April 1934). Any law decided by this official Commission, according to Can. 17, and given in the form of law “has the same force as the law itself.”

This three-year period is reflected in certain canons found in the Code. Can. 672 relates that a religious may return to the cloister after a three-year demonstration of amendment, unless the cloister refuses to receive him or her. In that case the matter can be appealed to the Holy See. Under Can. 2295, Revs. Woywod-Smith, in the section treating canons dealing with the infamy of law and fact incurred by clerics, religious or other individuals, comment that the “prolonged amendment” of the offending party refers to Can. 672 and allows his or her reinstatement following dispensation from the Apostolic See or the decision of the local Ordinary. To the best of this author’s knowledge, and despite suggestions made nearly 20 years ago that they follow this rule, independent priests do not feel that they should cease functioning as priests. If they are invoking Can. 2261 §2, they must believe they are either suspended or excommunicated. In the case of some, their affiliations with non-Catholic or schismatic sects are notorious, so it can be assumed that the excommunication they are operating under is excommunication for heresy and schism, (although certainly other excommunications also could apply). They may not believe they are guilty of formal heresy. Church practice, however, shows this belief is unjustified.

Can. E. J. Mahoney explains that, “The Sacraments are to be denied both to material and formal heretics but for different reasons; to formal heretics because they merit punishment, the censure of Can. 2314 §1; to material heretics because they are excluded by Can. 731 §2, which is a necessary deduction from the concept of the Church: [basically, the Church is a society of men professing the same Christian faith, participating in the same worship, receiving the same Sacraments, from lawful pastors in communion with the Pope, etc…] Those who reject the rule of faith proposed by the Church are not members of the Church, and may not lawfully share in the privileges of members, as, for example, the reception of the Sacraments,” (“Questions and Answers: The Sacraments”). Revs. Woywod-Smith comment on Can. 731: “All canonists and moralists agree that those who are heretics or schismatics and know they are wrong cannot be given the Sacraments of the Church unless they renounce their errors and are reconciled with the Church. Numerous decrees of the Holy Office put this point beyond controversy.” And those who are guilty of membership in a non-Catholic sect cannot presume they are material heretics, since this is not the custom of the Church.

Mahoney quotes the theologian Billot in explaining that formal heresy and schism cannot be excluded as a possibility in these cases. “…In reconciling converts…it is difficult in the first place to say with certainty that a given convert has not incurred the censure. It is not amongst those which crass ignorance excuses, and it is not unlikely that, during a given period previous to his submission, there was sufficient knowledge for incurring a censure. Therefore absolution from censure is given at least ad cautelam…” We have independent priests who know they are not in possession of jurisdiction granting absolution and administering the other Sacraments. First they are suspended a divinis for absolving without jurisdiction by virtue of Can. 2366, for receiving orders (for those who did so) from notorious apostates, heretics and schismatics, for consecrating bishops without a papal mandate and for ordaining non-subjects without dimissorial letters. But even several suspensions do not an excommunication make. Canon 2261 §2 specifically allows excommunicated persons to administer the Sacraments, and by implication deduced from Can. 2261 §3, these must be considered toleratus. Nearly all independent priests operating for the past several decades have invoked this canon. In surveying all the excommunications listed in the Code, it is difficult to see how any other excommunications could apply to these independent priests. But as shall be demonstrated below, there is more to the types of crimes committed by these clerics than most realize.

Having said that, we go back to Rev. Woywod-Smith’s observation that heretics and schismatics who know they are wrong cannot receive the Sacraments (and in turn cannot administer them). Do these priests know they are wrong? Admitting to excommunication by invoking Can. 2261 §2 indicates they realize they are at least suspended or have committed heresy and/or schism. Can they automatically assume they are material heretics or schismatics and hence are tolerati? Not according to what has been presented above. They are considered outside the Church until absolved by the true Roman Pontiff or his delegate. As noted elsewhere, even tolerati certainly possessing jurisdiction can be prevented from participating in Divine services (Can. 2259) if the fact of their excommunication is notorious. And they do not automatically gain re-entrance to the company of “righteous and serious Catholics,” even following three years of good behavior, if such Catholics still do not consider them sufficiently reformed, (Can. 2295). Given the fact that they possess no jurisdiction, the faithful are obligated to simply avoid them.

Is Can. 2261 §2 a favorable law?

There is yet the matter of laws which provide an exception to the law. Some have denied that Can. 2261 §2 is an exception to the law, but this is clear not only from the heading under which it is listed, “Of Excommunication,” but from Can. 2261 §1: “An excommunicated person may not licitly consecrate or administer Sacraments except in the following cases,” and then Can. 2261 §2 follows. So clearly this canon is an exception to the laws governing excommunication, as was explained in the article on supplied jurisdiction. Exceptions to the law must be interpreted strictly under this canon; Rev. Cicognani cites Rule of Law 28 which states that: “Things deviating from the common law are in no respect to be drawn into precedent…Even exceptions established by the law are odious.” But Cicognani also explains: “Those laws which favor religion are to be considered favorable rather than odious laws, even though they establish exceptions and are to be regarded as such; in no respect are they to be interpreted strictly.” Cicognani cites a document issued by the Congregation for the Propagation of the Faith in 1827, appended to Can. 19 which reads: “’Laws made in favor of religion are to be considered favorable laws and consequently are subject to a wider interpretation.’” Cicognani comments: “Here the expression operates for the common good, for religion, the safeguarding of the public order.” And this is precisely where many independent priests and organizations operating since the exodus from the Novus Ordo in the 1960s have staked their claim. But another canon effectively cancels out this concession in this particular case.

Canon 21 — This canon reads: “Laws enacted for the purpose of guarding against a common danger bind, even when there is no danger.” Here Cicognani states that the presumption of danger must be proven. He lists as these dangers, “Sin or fraud, deception or perversion,” among others. When a danger to the common good would occur if the law was not observed, the law certainly binds, for this is the very purpose for which it was enacted. But if there is no danger in a particular case, or if observing the law in certain circumstances would work contrary to the common good, then sometimes the law may be said not to bind. Some believe that because the law as it stands concerning jurisdiction would deprive the faithful of the Mass and Sacraments, it is contrary to the common good and the laws governing jurisdiction need not be observed. Yet they have failed to prove that a true danger to eternal salvation exists, and also have failed to note the teaching of moralists concerning the use of probable opinions in the reception of the Sacraments. Moreover they have failed to prove that their ministrations do not actually harm the faith, since the faithful who receive the Sacraments at the hands of illicit priests and know or should know they are illicit, receive no graces from these Sacraments, and receive no Sacraments at all, where Penance is concerned. Also one who receives Communion after failing to receive true absolution from one who possesses no jurisdiction, commits sacrilege.

Although all previous arguments are more than sufficient to prove that independent priests cannot use Can. 2261 §2 to minister to the faithful, it is important to knock down this final argument that these priests and illicit bishops are acting out of mercy and consideration for the common good, the salvation of souls. What matters here is not what those making this claim to be working for the common good actually believe or think, but what the Church teaches concerning what constitutes a common danger and detriment to souls. And it must be remembered that the danger does not consist of the inability to receive the three necessary Sacraments, which can always be received spiritually; the danger lies in exposure to false doctrines, sacrilegious reception of those Sacraments, communicatio in sacris, heresy and schism, (sin, fraud, deception and perversion).

In 1944, Rev. Alan McCoy O.F.M., J.C.L. wrote a dissertation, “Force and Fear in Relation to Delictual Imputability and Penal Responsibility,” (Catholic University of America). Under the general heading of “Delictual Acts Interdicted by Divine Authority,” he writes: “When an act is intrinsically evil, or involves contempt of the faith or of ecclesiastical authority, or works to the detriment of souls…imputability is not taken away in such cases since in these instances the observance of the law still urges under the pain of sin, even though the most severe personal hardship or danger, or also the greatest private harm might come from such observance. And the reason for this is that some spiritual good, either of God or of the Church or of individual souls is involved…There is consequently always grave guilt in the deliberate transgression of such a law.” As Rev. William Conway also notes in his “Problems in Canon Law,” grave inconvenience which excuses from the observance of a law applies only to ecclesiastical laws; McCoy speaks here of violations of Divine law. And McCoy duly notes that not even the gravest personal hardship or greatest private harm excuses from observing the law. In the violation of the Divine law, positive or natural, only grave fear externally manifested to witnesses would excuse from incurring the censure attached to the violation of such laws, (1937 decision by the Pontifical Commission for the Authentic Interpretation of the Code). Most authors agree it does not excuse from the sin, however, and in our case there is no indication that there was ever a question of grave fear in these cases; so the censure still binds. While it applies to delictual acts that are intrinsically evil, it does not excuse from those acts which “involve contempt of the Faith or work to the public harm of souls,” (Ibid).

On page 92 McCoy discusses what the Code considers to be acts involving contempt of the faith. He identifies the titles in the Code containing these acts as XI and XII of the fifth book, concerning “Delicts Against the Faith and Unity of the Church and Delicts Against Religion.” These include heresy, apostasy and schism; communication in sacred rites with heretics; usurpation of priestly functions and sacrilege, also any recourse to the civil power from the acts of the Apostolic See and interference with the liberty and rights of the Church, among others. These last two offenses must be considered because both Pope Pius XII’s papal election law and the Church’s rights have been ignored. As mentioned elsewhere, Catholics are bound by Can. 1325 to profess their faith in the face Whether intended or not, the continual violation of Pope Pius XII’s election law, especially the invocation of supplied jurisdiction reserved especially to the Roman Pontiff contrary to this same law, shows a particular contempt for the laws and rights of the papacy. Essentially such behavior at least implicitly denies the necessity of the papacy and the supremacy of the pope, and this undeniably works to the public harm of every soul on earth.

On page 97, under the heading “Acts that Work to the Detriment of Souls,” McCoy writes: “These are all acts which draw people away from the faith or from the practice of Christian morals and thus expose them to the danger of eternal damnation…Those acts which, by their nature, work to the detriment of souls are listed particularly in Titles XVI and XVII of the fifth book of the Code…bearing the headings: ‘Offenses Committed in the Administration or Reception of Orders or the Other Sacraments’ and ‘Offenses Against the Obligations Proper to the Clerical and Religious State.’” Among the offenses McCoy lists that work to the detriment of souls are: “…the administration of Sacraments to those who are forbidden to receive them…the consecration of a bishop without a papal mandate…the reception of Orders from unworthy prelates…the negligence of a pastor in the care of souls.” These are the Church’s ideas of what constitutes contempt of faith and a true detriment to souls. Many of the offenses listed here have been committed by those bishops and priests who believe that they are serving the common good and furthering eternal salvation by ministering to the faithful. But they were not, to the best of this author’s knowledge, ever committed under any visible force or fear. As McCoy points out, in the case of fear the individual affected is presumed to act “out of frailty rather than through obstinacy.” It is not clear that independent bishops and priests were not obstinate in refusing to fully examine all the objections to their ministrations. And once Traditionalism organized itself into various groups and began publicly presenting as the true Church minus Her visible head, it became a non-Catholic sect.


St. Thomas Aquinas tells us that illicit clerics offering illicit and/or invalid Sacraments and celebrating Mass commit the sin of sacrilege mentioned above. He also teaches that those who cooperate with them in theses acts cooperate in their sins and that their prayers have no efficacy, (Summa III, Q. 82; also replies to objections 1 & 3). These are sins we must rise up against and object to; warn others against and refuse to associate ourselves with. This following quote, in light of this, is the most telling for all of us: “The unity of the Mystical Body is the fruit of the true Body received. But those who receive or minister unworthily are deprived of the fruit, as was said above. And therefore those who belong to the unity of the faithful are not to receive the Sacrament from their dispensing,” (A 7, Q. 80A 4; Art. 9, reply 2). It is easy to see, then, why Catholics today do not enjoy true unity. In his “Canon Law,” Rev. Cicognani notes: “The common good demands certitude concerning the validity of acts…The common welfare demands that these laws have absolute effect.” Canon 16 almost never excuses one for ignorance of invalidating and inhabilitating laws. Revs. Woywod-Smith write: “Ignorance and good faith are immaterial as far as the effect of invalidating and inhabilitating laws is concerned. The common welfare demands that these laws have absolute effect.” There is no question, then, of serving the common good. Rather the faithful are given every indication that they must avoid whoever is guilty of those crimes which could lead to eternal damnation.

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