Supplied jurisdiction in the case of Traditionalists

© 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.)

The Catholic Church teaches that any priest who presents himself for the hearing of confessions must be able to prove that he actually possesses the necessary delegated jurisdiction: “…He who claims to posses delegated jurisdiction has the burden of proving the delegation,” (Can. 200). How must this jurisdiction be granted? In Can. 872 we read: “For the valid absolution of sins, the minister requires, besides the power of Orders, either ordinary or delegated jurisdiction over the penitent.” Additionally, Canon 879 states: “For the valid hearing of confessions it is necessary that jurisdiction shall have been explicitly granted either in writing or orally…” The canonists Revs. Woywod-Smith comment: “Tacit, presumed, interpretative or any other kind of delegation which cannot be called explicit is not considered valid.”

Beginning with the reign of the false pope John 23, jurisdiction slowly ebbed away. Older pastors, and bishops who held and had granted jurisdiction validly to priests died and the priests who had received it left the original territory (read here the area of their subjects for which jurisdiction is granted) to reside in other places, either as priests of the NO church or as priests without any assigned territory, hence jurisdiction. Traditional priests knew they did not possess jurisdiction as described in Can. 879. This is why for decades they have claimed to possess another kind of “emergency” jurisdiction known as supplied jurisdiction under Can. 209, or have invoked the “privilege” of operating under Can. 2261 §2, to satisfy inquiries made by the faithful. That neither canon provides or can provide the jurisdiction they say they possess will be proven below.

Ecclesia supplet

What is ecclesia supplet, or supplied jurisdiction? It means that the Church agrees to supply jurisdiction to the minister invoking this canon for the good of the faithful, whenever there is some doubt it may not exist in a particular case. Canon 209 states: “The Church provides jurisdiction both for the internal and external forum 1) in common error; 2) in a positive doubt of law or fact.”

“The power of jurisdiction is required de fide, on the authority of the documents of the Magisterium (DZ 920)…This is proved from the constant practice of the Church, and it has been consecrated in the code (C. 872, 879). For as we have already seen, even in the early centuries, only those administered the sacrament of Penance who had jurisdiction, namely the Bishops and the priests who were appointed and delegated by them…In virtue of ordination itself, no one receives any diocese or parish to govern. Neither is it delegated, because neither the consecrating Bishop nor the Pope has this intention, but they confer jurisdiction in another manner…” (Rev. Jean-Marie Herve, “Manual of Dogmatic Theology,” Vol.II, Tract 11-71)

The ‘colored title’ and Can. 6 §4

The old law expressing what became Can. 209 required what is known as a titulus

coloratus, or colored title. This simply means that some proof of jurisdiction needs to exist even if, in actuality, it was conferred invalidly. There was a catch, however, as Rev. Francis Miaskiewicz proved in his work, “Supplied Jurisdiction According to Canon 209.” (1940). For a colored title to exist there must first be an office “conferred by a legitimate superior competent to confer it…” Some authors, he noted, still believe that “Today…[even after the Code] common error is scarcely conceivable without some apparent title…[for] error cannot be common unless a colored title be present…” Others rejecting the necessity of such a title still “demand(ed) some foundation for the common error….” This requirement definitely existed, however, in the text of the old law, so would still be required in a doubt of law. Miaskiewicz refers his readers to Can. 6 n. 2-4 and insists that should any questions arise, “the old interpretation of this doctrine must be followed.” Canon 6§4 states: “In case of doubt whether some provision of the Canons differs from the old law, one must adhere to the old law.” To neglect to insist on the colored title where any doubts arose, he said, would contradict “the unanimous teaching of pre-Code jurists…Pre-code authors scarcely envisioned the case where the colored title was not present.”

Even those ordained priests who operated under John 23, could not certainly claim to have received such an office. Why? Because enough doubt has been cast upon Roncalli’s papacy to classify him as a doubtful pope, at the very least, so no certainty can be had concerning any office conferred during his purported reign, (see … hKnell.pdf ). Until a true pope is elected, who alone can judge this case, no assumptions can be made concerning his validity. “The pope has [jurisdiction] immediately from God on his legitimate election. The legitimacy of his election depends on the observance of the rules established by previous popes regarding such election…In the absence of legitimate election, no jurisdiction whatsoever is granted, neither de jure, nor despite what some have tried to maintain, de facto…A doubtful pope may be really invested with the requisite power, but he has not practically in the Church the same right as a certain pope — he is not entitled to be acknowledged as Head of the Church, and may be legitimately compelled to desist from his claim…” (“The Relations of the Church to Society — Theological Essays,” Rev. Edmund James O’Reilly, S.J. as quoted by John S. Daly; from the chapter “The Pastoral Office of the Church,” all emphasis by Rev. O’Reilly in the original. Rev. O’Reilly was the theologian of choice in Ireland for local Irish Councils and Synods, was a professor of theology at the Catholic University of Dublin and was at one time considered as a candidate for a professorship at the prestigious Roman College by his Jesuit superior.)

What about bishops? When can it be said that they possess an actual office that would admit the application of common error? Here is what the Church says happens when “the bishop is in captivity, or banished, exiled, or otherwise inhabilitated …” and is unable even to correspond with his flock. “If the bishop shall have incurred excommunication, suspension or interdict the archbishop — or if the archbishop is under censure or fails to act, the oldest suffragan bishop — shall at once have recourse to the Holy See that proper provision may be made,” (Can. 429). The Church does not want these men in office if they are excommunicated, even “in these extraordinary times.” Think about this: In a time when things are as totally fouled up as they are, would Our Lord REALLY be satisfied with the administration of heretical, schismatic, excommunicated clergy as the teaching voice of His Church? Is this really “good enough?” He might allow it for reasons known only to Him, but we can never say it happens with His direct permission; only as a result of the misuse of our free will.

Enter Can. 2261 §2

Some will immediately object that any remaining bishops today are not necessarily excommunicated, and it is here that the claim of today’s Traditionalist priests to jurisdiction takes a strange turn. The emphasis today is not directly placed on Can. 209 to supply these priests jurisdiction; rather these priests appeal to Can. 2261 §2, which allows excommunicates to confer the Sacraments. The question arises: excommunicated for what? The obvious answer is that all these men at one time belonged to the Novus Ordo church and celebrated either the John 23 Mass or the NOM, or they belonged to the SSPX, which is now a part of the Novus Ordo church. And some also belonged to other interim non-Catholic sects. As such they either incurred the censure for schism and/or heresy, for membership in non-Catholics sects or they are under suspension for various reasons (since Can. 2284 states that whatever applies to excommunications applies also to suspensions). So operating under Canon 2261 §2 is proof that they acknowledge the (notorious) fact that they are guilty of these crimes against the faith. (See the previous article, “What Constitutes a Schismatic Sect?”)

Can. 2261 §2 is an exception to the general law of Can. 2261 §1 and must be interpreted strictly, (Can. 19). Canon 19 is a general law governing the rest of the Code, where it applies. The preamble to Can. 2261 §2 found in Can. 2261 §1 clearly states: “An excommunicated person may not licitly consecrate or administer the Sacraments except in the following cases: …” Canon 19 states: “Laws which decree a penalty, or restrict the free exercise of one’s rights, or establish an exemption from the law must be interpreted in a strict sense.” (Rev. Woywod states in his commentary on this canon that “this class of law is considered ‘odious’ and must be interpreted strictly…It is a recognized principle of legislation to favor the universal or common law and to discourage exceptions.”) Here we see reflected the “laws whose universal observance is demanded by the common good,” mentioned by Revs. McHugh and Callan. Many insist that Can. 2261 §2 is an exception to the law made for the good of religion and therefore must be interpreted widely. That this cannot be the case will be addressed in the subsequent piece, “Canon 2261 §2 and the Common Good.”

Whenever there is a doubt concerning any law, the old law is to be consulted, (Can. 6 §4) as already stated. According to the old law, ALL excommunicates are forbidden to administer the Sacraments, (Cath. Encyclopedia, Excommunication). Catholics are forbidden to participate in the sacred services of non-Catholic sects, (Can. 1258). Those disputing that there have not been declaratory or condemnatory sentences issued should read Can. 2259: “[Not only an] excommunicatus vitandus is to be barred [from active assistance at divine offices or services] but also every excommunicated person whose excommunication was inflicted by a declaratory or condemnatory sentence, or whose excommunication is otherwise notorious.” And no proof is required for notorious facts, (Can. 1747, n. 1; also Can. 2197, nn. 2-3). Under Can. 2223, which states that a superior must issue a declaratory sentence against a specific individual if an interested party demands it, Revs. Woywod-Smith refer the reader to Can. 1935. Can 1935 states that the faithful are even obliged to denounce the offenses of those who offend against the faith or the natural law in some way. This reference intimates that the faithful can assist in declaring someone guilty of a crime when the law so demands. Canon 1325 demands that the faithful must “profess their faith publicly whenever silence, subterfuge or their manner of acting would otherwise entail an implicit denial of their faith, a contempt of religion, an insult to God or scandal to their neighbor.” Those who believe that Can. 2261 §2 does not grant jurisdiction to independent priests have acted under this canon to request or demonstrate that they should cease and desist.

By invoking Can. 2261 §2 it appears that these independent priests are admitting at least to having been involved at one time in a non-Catholic sect, which is generally assumed to be schism. Rev. Ignatius Szal, in his work,“The Communication of Catholics with Schismatics,” (1948), states that a general presumption of validity existed where the Sacraments administered by schismatics was concerned, but at that time the Holy See was occupied. In the case of the validity of these Sacraments requiring jurisdiction, Szal refers his readers directly back to Can. 209, to determine when such jurisdiction is presumably supplied. He also reminds them that according to the law stated in Can. 1258, “one must have a serious reason to participate even materially in a schismatic ritual, ceremony or function.”

No true Catholic can ever claim that Church membership can exist under the direction of unlawful pastors; this proposition was condemned by the Church at the Council of Trent: “If anyone says that … those who have neither been rightly ordained nor sent by ecclesiastical authority, but come from a different source, are the lawful ministers of the Word AND OF THE SACRAMENTS, let him be anathema,” (The Council of Trent, Sess. 23, July 15, 1563; DZ 967, 424). Notice here that we are not speaking of valid Sacraments, but lawful ones. A priest leader of one of these sects has stated that this anathema applied only to those specifically Protestant errors then being condemned and does not apply to the situation today. But in fact Pope Pius XII applied this very same anathema to the problem of bishops being intruded into Episcopal Sees by the civil authority in China without a papal mandate. Because today the illicitly consecrated bishops and (mostly) illicitly ordained priests who head these groups do so at the behest of the people, the result is the same: they are not rightly ordained by bishops created by bishops in communion with the Apostolic See and using the proper papal mandate, nor do they licitly ordain priests since they often are illicitly ordained and/or consecrated themselves. Hence under this enactment of Trent they are considered as intruded, coming form a “different source.” This is proven below.

Canon 147 reads: “An ecclesiastical office cannot be validly obtained without canonical appointment. By canonical appointment is understood the conferring of an ecclesiastical office by the competent ecclesiastical authority in harmony with the sacred canons,” and this is an invalidating law; if the terms of the law are not fulfilled the act is invalid; worthless. What is an ecclesiastical office? “…In the strict sense, an ecclesiastical office means a stable position created either by the Divine or ecclesiastical law, conferred according to the rules of the sacred canons, and entailing some participation in ecclesiastical power, whether of Orders or jurisdiction.” In law, the term ‘ecclesiastical office’ is used in its strict sense, unless the context clearly indicates the contrary,” (Can. 145). Under Can. 147 in the Canon Law Digest, Vol. 3, The Sacred Congregation of the Council declared: “The Catholic Church is, in virtue of its institution by Christ Himself, a perfect society hierarchically established, whose full and supreme power of government and jurisdiction rests with the Roman Pontiff, the successor of the Blessed Apostle Peter in the primacy. Hence no one can presume to intrude himself or others into ecclesiastical offices or benefices without a legitimate canonical investiture or provision.

“The true rule of Canon Law in this matter is found in Rule VI…And the Council of Trent declared, “that those who undertake to exercise these offices merely at the behest of and upon the appointment by the people or the secular power and authority, and those who assume the same on their own authority, are all to be regarded not as ministers of the Church but as thieves and robbers who have entered not by the door,” (Cap. IV, Session XXIII, de reform). More, the same Sacred Synod defined as follows: “If anyone says…that those who are neither duly ordained nor sent by ecclesiastical and canonical authority, but who come from elsewhere, are legitimate ministers of the word and of the Sacraments, let him be anathema,” (Ibid. Can. VII, also the Syllabus of Pope Pius IX, no. 50).” Here related canons 2331 §2, 2334 nos. 1 and 2, 147 §1 and 147 §2, 332 §1 and 2394 are cited as already having condemned these abuses. Canons 330, 331 §1, §2, §3 also apply in this case.

“In order to reserve more inviolate these same sacred principles and at the same time forestall abuses in a matter of such great importance, his Holiness Pius XII has deigned to provide as follows: An excommunication specially reserved to the Holy See is ipso facto incurred … 2) by anyone who, without a canonical investiture or provision made according to the sacred canons, occupies an ecclesiastical office or benefice or dignity, or allows anyone to be unlawfully intruded into the same, or who retains the same; 3) by those who have any part directly or indirectly in the crimes mentioned in… n. 2). (Listed in the AAS June 29, 1950, which makes it “normative,” or part of the ordinary magisterium, per “Humani Generis.” Rev. J. C. Fenton teaches in his “The Concept of Sacred Theology” that canonical decisions are declarations of the ordinary magisterium, hence infallible. This proves false the claim made by the priest cited above that these condemnations refer only to the creation of ministers by Protestant reformers, ministers who, in the beginning, most likely, were Catholic priests, clerics or religious. This papal statement also is in conformity with the need mentioned above of a titulus coloratus in order for the Church to supply any sort of jurisdiction. Pius XII has declared that such a title does not exist for sects unlawfully headed by priests not assigned jurisdiction or bishops consecrated without a papal mandate. And the other requirement, that of common error, cannot be said to exist either, according to Rev. Miaskiewicz.

Does common error exist today?

Rev. Miaskiewicz writes: “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. Thus the common error must, first of all, be particularized. i.e., about a priest or bishop who is considered to possess some definite title of jurisdiction or to be legitimately exercising whatever jurisdictional title he might possess.” In Can. 15 we read: “All laws, including invalidating and inhabilitating laws, lose their force in a dubium juris [doubt of law]. In a dubium facti [doubt of fact], the Ordinary can dispense from the laws, provided there is a question of laws from which the Roman Pontiff usually dispenses.”

As Rev. Miaskiewicz has just stated, there is no doubt of law here. And as has already been demonstrated, Pope Pius XII has already determined that no dispensations from these laws may be granted during an interregnum. The implication is clear: there must always be a visible head in the Church and until such a head exists, there can be no authoritative decision of the lawmaker of his successor in such matters. The issue raised by Traditionalists, that of conveying Sacraments outside the usual channels, would be considered by scholastic theologians as “a useless question.” The purpose of scholastic theology is to “express the content of Our Lord’s teaching…many of the propositions advanced as theses by [scholastic theologians] are actually statements which have been defined as of divine faith by the Catholic Church.” The necessity of jurisdiction is one of those statements, as demonstrated above. So who could argue with truths of divine faith?

While Pope Pius XII’s 1945 election law cannot be questioned since in making it he invoked his apostolic authority, it is useful to remind readers of St. Alphonsus Lugouri’s teaching concerning the presumption of law: “If no serious reasons can be found to prove or directly disprove that a certain law has ceased or been abrogated, the principle to be followed is: “In doubt, decide for that which has the presumption.” In this case the presumption is for the continuance of the law, since it was certainly made, and there is no probability for its non-continuance,” (Revs. McHugh and Callan, based on the teaching of St Alphonsus). To this we add the following from Rev. Bernard Wuellner’s “Summary of Scholastic Principles,” Rev. Cicognani and Pope Pius XII:

  1. A certainly existing, clear and applicable positive law always binds; a positive law is presumed to be valid.
  2. Every exception to or derogation from the law must be proved beyond a reasonable doubt.
  3. Things deviating from the law are not to be drawn into precedent, (Rule of Canon Law; Cicognani).
  4. No inference contrary to the evident facts is true; conjectural opinions are dangerous, (Pope Pius XII; Humani Generis).

So when a law is certain and clear, how is it possible for anyone to allege that it is being falsely interpreted or that reasoning from dogmatic theology is not to be admitted in its defense? If Catholics are obligated to defend the Church, and Pope Leo XIII and St. Thomas, also Canon Law states they are, what other means could be used to defend the truths of Faith? (see “Where is your imprimatur?”).

Moreover, to this we must add that Pope Innocent XI forbids the use of probable opinions where the validity of the Sacraments is concerned, (DZ 1151). Pope Pius XII forbids all men to dispense from his and his predecessors’ laws during an interregnum, and this is an exercise of his ordinary magisterium. These laws clearly forbid the installation of unlawful priests by any but valid and licit ecclesiastical authority. Furthermore, the supplying principle, according to Rev. Miaskiewicz, cannot even be said to exist. “When the Church, or more specifically the Roman Pontiff, is said to supply jurisdiction in any case whatsoever…it is readily understood that the pope acts in virtue of the jurisdictional power Christ entrusted to his person…Naturally it rests within the scope of such broad power to grant, to extend or to restrict the share of others in the exercise of this power in any way whatsoever…” And as we have seen, Pope Pius XII saw fit to restrict the exercise of any papal jurisdiction during an interregnum, meaning that whatever he had supplied during his lifetime was not to be assumed as extended on his death, but must be left to the discretion of the future Pontiff, canonically elected. This is why Pope Pius XII teaches in “Mystici Corporis Christi” that a living, breathing visible head is absolutely necessary to the Church, for without such a head She cannot accomplish Her mission.

Canon 2261 §3

What about the exercise of Can. 2261 §3? Is jurisdiction supplied for these acts as well, whenever it is lacking? No less an authority than St. Robert Bellarmine tells us that apostates, heretics and schismatics (Rev. Ayrinhac and Rev. Tanquerey tell us schism now is always equivalent to heresy) are deprived of all jurisdiction, and this is the unanimous teaching of the fathers and St. Bellarmine: “Finally, the Holy Fathers teach unanimously not only that heretics are outside of the Church, but also that they are ‘ipso facto’ deprived of all ecclesiastical jurisdiction and dignity. St. Cyprian (lib. 2, epist. 6) says: “We affirm that absolutely no heretic or schismatic has any power or right”; and he also teaches (lib. 2, epist. 1) that the heretics who return to the Church must be received as laymen, even though they have been formerly priests or bishops in the Church. St. Optatus (lib. 1 cont. Parmen.) teaches that heretics and schismatics cannot have the keys of the kingdom of heaven, nor bind nor loose. St. Ambrose (lib. 1 de poenit., ca. 2), St. Augustine (in Enchir., cap 65), St. Jerome (lib. cont. Lucifer.) teach the same. (St. Robert Bellarmine, An Extract from St. Robert Bellarmine, De Romano Pontifice,
lib. II, cap. 30, ; no endorsement of this site is here intended.)

The Church’s practice and teaching, then, does not reflect the fact that She actually is willing to do this. For the sake of souls dying without the Sacraments, could She do this? It seems that She has always made exceptions in this regard, but without a true Pope in office it is not clear who could supply, per Rev. Miaskiewicz’s statement above. The priests and bishops invoking this Canon insist that somehow the Church must supply for the good of souls, but they forget that the Church demands a visible Pope always exist (for the good of souls) and that Pope Pius XII teaches that even the CARDINALS cannot exercise papal jurisdiction, nor attenuate it during an interregnum. If humans do not follow the Church’s laws allowing her to guarantee the salvation of souls, how do they expect Her to fulfill Her mission on earth? So are Catholics better off relying on a Perfect Act of Contrition rather than calling on men who could endanger their faith in the course of absolving? According to some commentators, quoted by Rev. Szal, the answer is “yes” even when a visible head unquestionably rules the Church. “Although it may be licit in a given case to confess one’s sins to a schismatic and to receive absolution form him, there are authors who recommend that a dying person should rather elicit a perfect act of contrition and thus commit himself to the divine mercy.” While Szal then states that if one is not satisfied in conscience that he can seek a schismatic priest and confess (only) in danger of death, we must remember he does so always believing there will ordinarily be a Roman Pontiff to supply jurisdiction for this act under Can. 209. Nor should Catholics fear that they would risk their souls if they do this.

In his “Heaven Open to Souls,” Rev. Henry Semple, S.J. shows that a perfect Act of Contrition is a common act. Semple quotes St. Alphonsus Liguori, who attributes the opposite belief, that such an act is not common, to the Jansenists. St. Alphonsus teaches that “the opposite teaching…that Contrition with remiss charity does not justify outside the Sacrament [of Penance] is altogether unsupported by any reason, and is false…It is at variance with all theologians and the common sentiments of the Fathers…It most openly contradicts many testimonies of Scripture and Councils and Holy Fathers,” (“Moral Theology,” Book 6, Treatise 4, n. 442 of St. Alphonsus). Rev. Raymond Kearney writes: “The Sacraments are the usual, not the exclusive channels of grace…Penitents frequently make acts of Perfect Contrition…These facts go to show that while the Church does not always supply jurisdiction as lavishly as some writers would desire, she is ever the Pia Mater Ecclesia,” (“Principles of Delegation,” 1929).


Initially, clergy could have consulted only a bishop certainly not excommunicated and, if they suffered censure themselves could have sought abjuration (from heresy or schism) then absolution, provided their initial censures were not reserved to the Holy See. From there they would have needed to decide what must be done about the Church. But they certainly had no right, during an interregnum, to just set up shop. They could have offered Mass privately, without anyone in attendance, for the faithful and to end the crisis in the Church. Or they could have led the faithful in St. John’s Mass, a dry mass, with the Perfect Act of Contrition and Spiritual Communion. They could have prayed the Rosary with them afterwards, followed by both adult and children’s Catechism. They could have encouraged and trained the faithful to engage in Catholic Action; set up perpetual adoration in the home and seen to it that all homes were consecrated to the Sacred Heart. All except those certainly reduced to the lay state, in the opinion of some, also could have provided Sacraments only in danger of death. They had an important role to play — their mission here was to remind us of the goodness and mercy of God, the importance of absolute obedience to God’s laws and Church law and to prepare us for the times ahead, for what is happening today. So why did they choose instead to act outside the law? Wouldn’t we have revered them all the more for explaining they could not disobey God by so doing and endanger our souls?

As the saying goes, there is no use crying over spilt milk. But neither should it be any excuse to continue to frequent those clerics or putative clerics once the truth is known. The Church teaches that an erroneous conscience binds only as long as it lasts. Once we know better, we must do better.

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