3. SUPPLIED JURISDICTION IN CASE OF POSITIVE AND PROBABLE DOUBT

3.2. Notions

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

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

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

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

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

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

3.3. What is Required to Use Supplied Jurisdiction in Case of Doubt?

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

3.4. Does it Also Apply to Marriages?

Yes, it does. Canon 209 does not make any restriction in the suppliance of jurisdiction, and even though the assistance to marriages is not strictly speaking an act of jurisdiction but a simple administrative act, we have already seen when treating common error that it must be considered under the circumstances contemplated by Canon 209.

The New Code is explicit, Canon 144, #2, applying the same norm to the faculties required in order to assist to marriages.

3.5. Application to Our Case

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

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

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

4. EXTRAORDINARY JURISDICTION IN DANGER OF DEATH

4.2. Notions

Is it necessary to explain what is DANGER OF DEATH? Yes, because there may be some misunderstandings in the matter.

The Church in her legislation is always faithful to the axiom Sacramenta propter homines, and she extremes her zeal so that nobody dies without confession, for lack of faculties in a priest. This is why her legislation disposes that when one of the faithful is in danger of death, ALL PRIESTS (including excommunicated, suspended, interdicted, non approved, irregulars, heretics, schismatics, reduced to the lay state, even degraded from their priestly office) can absolve VALIDLY and almost always LICITLY from any sin and censure, even though an approved confessor may also be present.

According to this ancient and important norm, which we can already see explicitly in the Council of Trent, sess. 14 ch. 7 (Denz.-Sch.1688), it is sufficient that a cleric has validly received the sacred order of priesthood for him to obtain in this particular case full powers of jurisdiction, delegated by the Roman Pontiff through the law; and the concomitance of the two elements ORDER + JURISDICTION makes a minister capable of absolving.

On the subject's part it is required to be in DANGER OF DEATH. Danger of death is not here to be understood as "danger of spiritual death," as some erroneously affirm. The law refers to a danger of physical death, the separation of body and soul. The reference to "spiritual death by sin" is in this matter totally gratuitous and misleading. "Danger of death" does not mean either that the person should be in his agony, which is no longer called periculum mortis but articulum mortis. It is enough for him to be in a true danger, in which one can reasonably assume that death may follow soon, or even that he may lose permanently the use of his reason, becoming incapacitated to make his confession.

The cause of this danger of death can be INTRINSICAL (illness, old age, etc.) and also EXTRINSIC (war, grave surgery, imminent disaster, etc.). In case of doubt concerning the estimation of the motive, the priest can nevertheless validly absolve on the grounds of supplied jurisdiction in case of positive and probable doubt, as we already saw in the precedent article commenting Canon 209.

Please note that the danger of death has canonical consequences not only for confessions. The New Code allows ANY PRIEST to administer the Sacrament of Confirmation to any faithful in DANGER of death (see above, New Code Canon 883), and both legislations permit the extraordinary form of marriage in case of danger of death of at least one of the parties (see Canon 1098, New Code Canon 1116). We will study the special conditions for this particular case in the next article.

We find both confirmation and clarification of this doctrine in the texts of canonists and in the decrees of the Sacred Penitentiary:

4.3. Application to Our Case

The practical application of the Canons indicated in 4.1. is obvious:

• when one of the faithful is in danger of death, even though another approved priest may be present, any priest will absolve him validly and licitly from all censures and sins;

• in danger of death, any priest can administer Confirmation, using the chrism previously blessed by the Bishop;

• in the same danger, and as long as the conditions required by the law are fulfilled (see next article for further explanation), any priest can bless a marriage.

Our priests will find many opportunities in the performance of their apostolate to confess people in danger of death (especially the old and the sick). In cases of baptism of emergency because of danger of death for the child, they will do well in using the extraordinary faculty allowing a simple priest to administer Confirmation, which after all is a necessary Sacrament necessitate praecepti.

5. THE EXTRAORDINARY FORM FOR MARRIAGE

5.2. Notions

The Church has determined in Canon 1094 (New Code Canon 1108) that the ordinary form for a valid marriage requires the presence of the pastor, or the local Ordinary or a delegated priest, and of at least two witnesses. However, both Codes contemplate exceptions from the ordinary canonical form, in which it is possible for the parties to contract valid and licit marriage before two witnesses, and without the presence of the authorized priest. Canon 1098 (New Code Canon 1116) considers two exceptional cases, of which the second interests us particularly.

The MAIN CONDITION laid down by the Code in order to permit a marriage without the presence of an authorized priest is expressed in the following very far-reaching terms: Haberi vel adiri nequeat sine gravi incommodo. This grave inconvenience is something which cannot be defined with mathematical accuracy, because much depends on circumstances and conditions; this is the reason why the Code is not more explicit, remaining almost reticent to precise cases.

It must be understood that this difficulty of securing the presence of the priest at the marriage need not be a general or common difficulty, but may be a particular and individual difficulty of the particular priest and couple.

The commonest situation is the one in which the priest is not physically reachable: there is no priest in the region, as it still happens in the immense territories of mission areas; or there is a religious persecution which makes it dangerous for his life to leave his refuge. The authors and the decisions of the Roman Rota clearly state that not only a physical impossibility, but also a MORAL INCONVENIENCE of a spiritual nature for the parties to have recourse to an authorized priest is sufficient to invoke the exception from ordinary canonical form, as long as the other conditions are also existing (danger of death, or physical/moral absence estimated for a month). For us, this is a capital argument.

1. The FIRST CASE considers the danger of death on at least one of the parties, when the authorized priest can neither be secured nor approached according to the general aforementioned condition. In such situation, the expression of mutual consent before two witnesses (words or even signs if the parties cannot speak) will be sufficient for a valid and licit marriage.

The danger of death, as we saw in the past article, need not necessarily arise from illness only, for the Code speaks of danger of death generally, from any source. A bona fide belief of the parties that there is a danger of death before the authorized priest can be had is more than sufficient. If a mistake is made in estimating the danger, the marriage remains valid. Furthermore, there is no need of a special reason why the parties want to get married in danger of death, for the law does not require any.

If a priest without faculties is at hand, he is to be called in order to assist at the marriage, even though this is not necessary ad validitatem matrimonii. In virtue of Canons 1043-1046 (New Code Canon 1079) this priest has ample faculties to dispense from all ecclesiastical impediments, excepted the one resulting from the reception of sacred orders. He could also dispense from the forma substantialis, therefore from the need of having two ordinary witnesses.

2.  The SECOND CASE when permission is given to the parties to marry without observing the ordinary form is the one in which:

1. The authorized priest is physically or morally absent and cannot be had or approached without grave inconvenience, and 

2. It is prudently foreseen (praevideatur) that this state of affairs (namely, the difficulty of getting an authorized priest without grave inconvenience) will last for at least ONE MONTH.

When these two conditions concur, the parties do not need to observe the canonical form, even outside the danger of death. Two ordinary witnesses suffice. And, when in extraordinary circumstances even the two witnesses demanded by Canon 1098 cannot be present, and there is no one who can dispense from the forma, the parties may in a case of very grave necessity proceed without the two witnesses. Such is the liberality of the Church, always zealous of the spiritual good of her children, making readily available to them the Sacrament of marriage in exceptional situations.

The first condition has been already briefly explained; the texts in 5.3. will be more explicit and satisfying. But note that the marriage will be null if the belief that the priest cannot be reached is erroneous; so, if the FACT of the physical or moral impossibility was nonexistent, though the parties honestly and inculpably believed that it existed, there is no valid marriage.

The second condition simply requires a prudent and objective estimation, by inquiry or from notoriety of the fact, that the authorized priest will be neither available nor accessible physically or morally without grave inconvenience for at least one month.

It is immaterial if the authorized priest happens to be available within the month, or if the Ordinary shows unexpectedly for a visit. The marriage once celebrated under these conditions remains valid.

A hypothetical case, no doubt, but nonetheless revealing clearly the mind of the Church.

The Code adds for the LICEITY of the marriage the same condition mentioned above: if a priest without faculties can be called, he must be called and must assist at the marriage.

The precept obliges the priest and the parties, but its fulfillment only affects the liceity of the marriage, never the validity of its celebration before only two ordinary witnesses.

5.4. Application to Our Case

The most important elucidation to make concerning the application of Canon 1094 (New Code Canon 1108) is the one which regards the grave inconvenience on the part of the couple to be married to approach an authorized priest.

It is proven by the law, the authors and the praxis of the Church that:

1. The grave inconvenience may be on the part of the couple only,

2. The grave inconvenience may be of a moral nature,

3. This grave inconvenience of a moral nature may be a significant moral harm for the parties.

Consequently, the ordinary canonical form for marriage does not apply :

1. When full observance of the law requesting the presence of an authorized priest would involve a danger for the soul, AND

2. At least one of the parties is in danger of death, OR there is a prudent assessment that the state of affairs contemplated in #1 will continue for at least one month.

It is beyond doubt that traditional Catholic faithful cannot approach a Modernist parish priest who will submit them to a deformed teaching concerning the doctrine of the ends of marriage, or the duty of procreation, or conjugal morals. The New Code (and with it the New Catechism of the Catholic Church) reverts the ends of marriage, and presents them as equal and independent: The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring (New Code Canon 1055,1).

The traditional doctrine expressed in Canon 1013 established an order and subordination among the ends of marriage, as the consultation of any pre-Vatican II moral manual will confirm: The primary purpose of marriage is the procreation and education of children. The secondary purpose is to furnish mutual aid and a remedy for concupiscence. A radical difference indeed!

Such distortion constitutes a very serious danger for the faithful, who can be led to wrong opinions such as the primacy of the common good of the spouses over the duty of procreation and education of the children. It is the open door to justify modern prevalent errors concerning divorce, contraception, sexual behavior, etc.

The faithful who have recourse to a Modernist priest put their very faith in danger of compromising with the post-Conciliar Liberal doctrines such as ecumenism and religious liberty, not to mention the myriad of horrors that have issued from the Vatican II revolution and which have affected the catholic beliefs and practice. They are perpetrated in virtually every "modern" parish in the world.

The parties have also the unalienable right to celebrate their union with the Mass for the Spouses according to the traditional Mass, in virtue of Saint Pius V's Bull, Quo Primum Tempore, and not with the New Mass of Paul VI, which "represents, both as a whole and in its details, a striking departure from the Catholic theology of the Mass as it was formulated in Session 22 of the Council of Trent" (Cardinals Ottaviani and Bacci, Short Critical Study of the New Order of the Mass). Time to quote New Code Canon 214: 

    "The faithful have the right to worship God according to the prescriptions of their own rite approved by the legitimate pastors of the Church, and to follow their own form of spiritual life consonant with Church's teaching."

We cannot forget to add the danger of scandal. Even though a particular couple may be and remain strong in the faith despite the recourse to the local Modernist priest, their implicit acceptance of a Modernist liturgy or of the deformed Modernist teachings may cause other couples to follow their example and expose their not-so-strong faith to a serious danger. This grave inconvenience for a third party is also a reason to claim exception from the ordinary canonical form [see above Coronata's text].

The present crisis of faith in the Catholic Church puts our faithful in the precise condition required by Canon 1098 (New Code Canon 1108): they cannot have recourse to any authorized priest without putting their soul in grave danger of compromising, diminishing or even losing their faith.

Therefore, IN DANGER OF DEATH they can exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid. Furthermore, OUTSIDE THE DANGER OF DEATH, since it is a prudent estimation that the present crisis and the danger for the faith will continue to make it morally impossible for the parties to have access to an authorized priest for more than one month, they may exchange vows before two ordinary witnesses, and such matrimony will be perfectly valid.

For the liceity of the ceremony, our priests if available must be called and must assist, performing the usual ceremonies.

If a doubt remains, since the doubt is founded on solid canonical and theological grounds, it is a positive and probable one, and in the occurrence the Church supplies the necessary jurisdiction according to Canon 209 (New Code Canon 144).

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