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Against Sedevacantism: Errors Concerning Supplied Jurisdiction

The current crisis does not require us to reinvent the canonical tradition or reinterpret the laws of the Church in novel ways, not heretofore seen.

In light of Pope Francis’ disastrous pontificate, including his unjust and imprudent motu proprio Traditionis Custodes, many impacted Catholics are being tempted to leave the Church and take refuge in any place where the traditional Mass is offered. Unfortunately, some of these places of refuge include chapels run by “independent” and even Sedevacantist clergy, where Catholics will assist at illicit traditional Masses (which the Church has always taught is a sacrilege[1]) offered by priests with no faculties to say Mass or hear confessions. Yet some traditional Catholics have made the case that—due to the current crisis in the Church and the “state of necessity”—Sedevacantist clergy receive supplied jurisdiction to exercise their ministry, including granting valid absolutions in the sacrament of confession. Of course, if Sedevacantist (and other independent) clergy do not have supplied jurisdiction to hear confessions, they are giving invalid absolutions and causing untold spiritual harm to their penitents. Thus, the question of whether these confessions are valid is a matter of grave importance in the traditional movement.

As this article explains, while it is true that the Church supplies jurisdiction to even an excommunicated priest to hear the confession of someone in danger of death (periculum mortis), it is not true that supplied jurisdiction comes to every priest in the state of necessity. Those who claim that all priests receive supplied jurisdiction on the general pretext of “necessity” make an erroneous extrapolation of the suppletory principle by extending its application from extreme cases of danger of death to cases where there is no danger of death. Of course, the extreme pastoral case of periculum mortis (where the dying person may not have recourse to a priest with faculties to hear his confession) has no parallel to cases where a person is not in danger of death and thus has recourse to priests with the proper faculties. Hence, an analogy of law (analogia legalis) between the two situations cannot be made.[2]

While we do not seek to downplay the current crisis, the Church’s canon law and the entire canonical tradition provide that the Church supplies jurisdiction to priests who lack the ordinary faculty for confession in only three scenarios: (1) danger of death; (2) common error; and, (3) positive and probable doubt (more on this below). There is no fourth category of a generalized and ongoing “state of necessity” triggering supplied jurisdiction.

Fr. Miaskewicz, an authority often cited by Sedevacantists because he wrote an extensive dissertation on canon 209 in 1940, highlights how restrictive the Church’s rules are on supplying jurisdiction. He notes that “it does not follow that the Church supplies in all those cases in which she can supply. The Church supplies exclusively in those cases in which she expressly, or at least tacitly, manifests her will to supply.”[3] He goes on to say that

in those cases outside the danger of death, which are often adduced in discussion as so critically important for the penitent etc., and which are argued to be important enough for the Church to relax her rules, those who urge that the Church make such extraordinary provisions [e.g., based on “necessity”] could much more easily procure the necessary jurisdiction or prevail upon individuals to approach some other priest already empowered and capable of attending to their difficulty.[4]

A Generalized “State of Necessity” does not Supply Jurisdiction

The Church uses the word “necessity” (Latin, necessitate) 41 times in its Code of Canon Law, and it never once applies it to supplied jurisdiction. The word is used in the canons to address those situations in which the minister has ordinary (habitual) jurisdiction, which Sedevacantist clergy do not have.[5] Interestingly, the Church does not even use the word “necessity” in the specific canon granting priests without faculties the jurisdiction to absolve someone in danger of death (canon 976).[6] As it stands, the Church’s canonical tradition has not worked out a generalized and ongoing state of necessity that would trigger supplied jurisdiction, even though some allege such a condition exists now or has existed in the past.

If such a generalized category of “necessity” did exist that actually triggered supplied jurisdiction, it would open the door for those clergy without a canonical mission (i.e., those not sent by the Pope or legitimate bishops), to legitimately operate independently of (and in opposition to) the local ordinaries on the pretext of “necessity.” This scenario would result in the absurdity of such priests having personal, “super-extraordinary” powers, not limited by territory or type of act, and without regard to the local ordinaries.[7] Let us now further learn about “common error.”

Common Error

The Church’s jurisprudence on supplied jurisdiction developed over the centuries and was eventually codified into the 1917 Code of Canon law. Canon 209 provides: “In common error or in positive probable doubt whether of fact or law, the Church supplies jurisdiction both for the external and the internal forum.” Canon 144, §1 of the 1983 Code provides the same. It reads: “In factual or legal common error and in positive and probable doubt of law or of fact, the Church supplies executive power of governance for both the external and internal forum.”

Sedevacantist John Lane is confident that the Church always supplies jurisdiction to Sedevacantist clergy on the grounds of common error. He writes:

[I]n my experience priests do not seem to be well informed of these matters. The general outlook could be summarised as, “I’ve been told I have supplied jurisdiction for confessions so they will be valid,” and that’s that. Their understanding of why this might be is frighteningly inadequate. Fortunately, Canon 209 steps in and solves the problem because (largely due to the attitude of our priests) there is always common error in trad circles, so the confessions are valid for that reason if no other![8]

Unfortunately for Mr. Lane, canon 209 (and its related canon 144) does not provide supplied jurisdiction to Sedevacantist clergy on the basis of common error. Common error exists when the majority of a community would conclude that the priest in question has habitual jurisdiction authorized by the local ordinary,[9] which Sedevacantist clergy admit they do not have. Fr. Miaskiewicz explains, “the error must be concerning the habitual power of jurisdiction of someone.”[10] He also explains: “That common peril does not exist except when the people of a community fall into error about some qualification or power which a priest is believed habitually to possess and which he might use to their common detriment.”[11] Miaskiewicz further says: “However, it must be kept in mind that the law of canon 209 supplies only that jurisdictional power which the holder of the office would legitimately exercise, e.g., as canonical pastor or local ordinary.”[12] As we can see, the error[13] that the community must make is that their priest has habitual,[14] not supplied, jurisdiction, and such habitual jurisdiction would obviously only be enjoyed by a legitimate pastor (that is, an incardinated and deputized priest) or the local bishop (with a canonical mission).[15]

Common Error does not Apply to Sedevacantist Communities

As applied to the Sedevacantist argument, their communities would not err in believing their clergy have ordinary jurisdiction. In fact, practically all Sedevacantists know their clergy do not have ordinary faculties, since they readily admit it.[16] And to anticipate their facile objection, the Sedevacantists are also wrong to believe that common error regards whether the members of their sect believe their priests have supplied jurisdiction. This is incorrect as we have seen (the error must be that they have habitual jurisdiction).[17] Ironically, the “common error” among Sedevacantists, and others, is that their priests will enjoy supplied jurisdiction even though everyone knows they lack faculties, or habitual jurisdiction. Therefore, contrary to John Lane’s confident assertions, “common error” can never exist in Sedevacantist chapels.[18]

But it gets worse, because the Sedevacantists actually misapply common error to their sectarian communities. The Sedevacantist community is not the community whose “common error” triggers supplied jurisdiction. Rather, it is the community that is subject to clergy with ordinary jurisdiction (the specific diocese or territorial parish in which the Sedevacantist priest operates).[19] In other words, it is the local Catholic community who would have to make the erroneous judgment that the Sedevacantist priest who has set up shop in their diocese possesses ordinary jurisdiction. This makes sense, because the Church’s provisions for supplied jurisdiction on the ground of common error are designed to protect and promote the common good of the Church, which would not be served by supplying jurisdiction to vagus clerics, whose non-Catholic sects are set up in opposition to the Catholic community, even if those who attend their illicit Masses mistakenly believe they possessed habitual jurisdiction.[20] As Miaskiewicz says, “For, in the case of common error the intention of the legislator is to forestall a common loss or a peril to the common good when it is certain that the priest performing some act has not the jurisdictional competency required by the law for validity.”[21]  He also says, “Moreover, it is universally admitted that the Church supplies in common error solely to protect the common good.”[22]

As applied here, the common good means protecting those communities who are in lawful communion with the Catholic Church and thus already enjoy the benefits of clerics with habitual jurisdiction in the first place. If the Church were to supply jurisdiction (outside cases of danger of death) to Sedevacantist and other acephalous priests who operate outside the Church, this would actually harm the common good, by serving those who are laboring against the Church and her authority. Such would constitute a grievous attack on the unity of the Church, and therefore would serve to harm to the common good of Catholics. As Fr. Miaskiewicz rhetorically asks: “Would not such a practice nullify whatever jurisdictional laws and sanctions the Church has so carefully worked out?”[23]

It should also be noted that most Catholics have recourse to traditional Catholic ministers with faculties (like the priests of the Institute of Christ the King or the Fraternity of St. Peter), and not just Novus Ordo priests. As Miaskiewicz explains, outside cases of danger of death, where an irregular priest may be the sole means of salvation for a particular soul, the Church’s refusal to supply jurisdiction is easily remedied by recourse to legitimate pastors:

Outside such danger of death the difficulty besetting an individual because of the refusal of the Church to supply in a given case is never such as is not easily repaired. Especially in the sacrament of penance it should not be forgotten what an important role indirect absolution can play.[24]

Sedevacantist clergy also argue that because the highest law of the Church is the salvation of souls, their ministries are necessarily protecting and promoting the common good. This argument is also erroneous. Because they work in opposition to the legitimate authorities of the Church (even warning their flock to have nothing to do with them), these schismatic priests are elevating what they believe to be a “particular good” (hearing the confessions of those who come to their chapels) at the expense of the common good of true Catholics who are in union with the Church and their respective bishops. Thus, far from achieving the common good of the salvation of souls, they are actually harming souls. Their imparting of invalid absolutions to countless thousands of people over the past 40 years, due to their erroneous belief that they enjoy supplied jurisdiction, is one striking example of such harm. Moreover, the 1917 Code, which the Sedevacantists claim to follow, strictly forbids a priest without jurisdiction from presuming to hear a confession, and punishes such “usurpation of jurisdiction” with an ipso facto suspension a divinis (c. 2366).[25]

We thus see why common error does not operate to supply jurisdiction to Sedevacantist and other clergy who have not been sent by the Church. Those priests who hear confessions without faculties not only gravely harm the souls of their penitent victims by giving them invalid absolutions, but they also incur the latae sententiae penalty of suspension whenever they hear confessions (although Sedevacantist priests are already excommunicated from the Church and ipso facto infamous for belonging to a non-Catholic sect).[26]

As Cardinal Billot wrote about those clergy who celebrate the sacraments without a canonical mission:

Hence, if perchance true sacraments be found in the sects, they are not in them except as goods belonging to another, which cannot profit to the salvation of anyone who receives them in full awareness of the facts as long as the error of separation or schism remains uncorrected. Moreover, the sects as such are called the synagogue of Satan [Apoc. ii. 9], whose heads are antichrists, as is stated in I John ii, 18 et seq. so it is impossible that they should legitimately hold goods entrusted by Christ to the Church.[27]

Positive and Probable Doubt of Fact or Law

The other ground on which the Church supplies jurisdiction is the situation in which there is a positive and probable doubt about a fact or a law. Sedevacantist clergy also falsely claim supplied jurisdiction for themselves based on this canonical ground. The purpose behind this ground is completely different from that of common error. One might say that with respect to common error, the purpose is to primarily protect the common good of the community, whereas for positive and probable doubt of fact or law, the purpose is to primarily protect the priest (but in view of protecting the common good as well). Thus, this ground is generally understood to apply to those cases in which the priest has a real and objective doubt about whether he has faculties, or whether the faculties he possesses would apply to a particular case, based upon his interpretation of the facts or law.

Miaskiewicz explains: “In the case of probable and positive doubt it is not clear that the priest lacks jurisdictional competency in the matter in question. When positive and probable arguments are present to indicate the possession of the required jurisdiction, the Church supplies because she wishes to render the minister of the jurisdictional power secure and free from undue worry and anxiety.”[28] He also says: “From the very nature and circumstances of doubts, from the very fact that they can arise in the most private conditions, as, e. g., in the confessional, it becomes quite clear that, though this part of the canon is in no way intended to harm the common good, still it was formulated especially in favor of the priest, to make more remote the possibility of anxieties and scruples, and to afford him an authorized reflex principle by which practical certitude can be attained when he is confronted with doubts arising from the theoretical interpretation or the practical application of a law.”[29]

As stated above, the doubt may be either about the law or about a fact. Doubt is a state in which the mind is not able to make a decision between two contradictory conclusions based on the evidence at hand. The doubt is positive when there are probable reasons for one or both decisions (as opposed to negative doubt, when there is insufficient information to support either decision). The doubt is probable when it rests upon serious and objective motives (as opposed to purely subjective ones). A doubt of law exists when there is uncertainty about its existence, meaning, force, extension or cessation (for example, a priest who is asked to hear the confession of a woman religious has a doubt about whether he needs jurisdiction from the bishop of the place the confession would be heard or from any bishop).[30] A doubt of fact exists when there is uncertainty about whether a situation contains all that is necessary for the law to be applied to it (for example, a priest who has a doubt about when his faculties in a certain diocese will expire).

Now, while much has been written in theological commentaries about positive and probable doubt of fact or law as a basis for supplied jurisdiction, there is no need to do that here, because the provision is prima facie inapplicable to Sedevacantist clergy. To state the obvious, a Sedevacantist priest will not have any doubt, much less positive and probable doubt, about whether he, legally or factually, has ordinary faculties from the bishop of the diocese in which he illicitly functions. Remember, the doubt has to be whether the Sedevacantist priest has jurisdiction. Of course, all Sedevacantist priests are absolutely certain that they have no jurisdiction from the local bishop, and they openly admit it. They have no doubt of fact regarding whether the local bishop has granted them jurisdiction, and they have no doubt of law regarding whether a priest who operates without the bishop’s permission has jurisdiction from that bishop.

One Last Ditch Effort – Canon 1335

There is one final canon to which Sedevacantists and others appeal to claim supplied jurisdiction for themselves. That is canon 1335. They use this canon because it appears to provide jurisdiction “for any just cause.”

But does canon 1335 really allow a priest without faculties to hear confessions validly and licitly, so long as the faithful asks for the sacraments for any just cause (and not just danger of death)? On its face, of course, the notion seems absurd, for if supplied jurisdiction could be triggered “for any just cause whatsoever,” ordinary jurisdiction would be practically meaningless and, as Miaskiewicz remarked, all the jurisdictional laws and sanctions that the Church has carefully worked out would be nullified. Let’s see what the canon actually says. Canon 1335 provides:

If a censure prohibits the celebration of sacraments or sacramentals or the placing of an act of governance, the prohibition is suspended whenever it is necessary to care for the faithful in danger of death.  If a latae sententiae censure has not been declared, the prohibition is also suspended whenever a member of the faithful requests a sacrament or sacramental or an act of governance; a person is permitted to request this for any just cause.

What to make of this canon? The critical point is that the canon is not suppletory, that is, it does not provide to the priest what is lacking in order to administer a sacrament licitly and validly. It doesn’t supply the faculties needed to licitly offer Mass, baptize, or preach, nor does it supply the jurisdiction needed to validly absolve. Rather, the canon operates to remove that which currently prevents a sacrament from being licit or valid (i.e., a censure), which places the cleric in the state he was before incurring it. If a latae sententiae censure has been declared, canon 1335 removes the censure only when administering to someone in danger of death (and note that some Sedevacantist clergy have been subject to such declared censures). If the censure has not been declared, it is removed when the faithful ask for a sacrament, a sacramental, or act of governance for any just cause.

What this means is that canon 1335 functions to put the cleric back to his pre-censured state. If, for example, the cleric had a canonical mission and faculties to hear confessions before he was censured, canon 1335 momentarily suspends the censure so that the priest can exercise his faculty upon a faithful’s just request, as he would have before, without scruple. However, if the cleric did not have the faculties to hear confessions before he was censured, canon 1335 does not provide him with mission (for liceity) or jurisdiction (for validity) to hear confessions, unless it is while administering to someone in danger of death. Notwithstanding the claims of some traditional priests, because Sedevacantist and certain other independent clergy do not have ordinary faculties to hear confessions, canon 1335, which merely operates to temporarily suspend censures for a given act, in no way provides what is necessary for these priests “to act validly and almost always licitly.”


We no doubt find ourselves in one of the most difficult times in Church history. The Church is suffering her Mystical Passion like Christ did on Good Friday, and has become disfigured and in many aspects unrecognizable, like the suffering Christ. Men of good faith are looking for answers and solutions to the crisis. But Holy Mother Church knows how to care for her children. The current crisis does not require us to reinvent the canonical tradition or reinterpret the laws of the Church in novel ways, not heretofore seen. Rather, authority and jurisdiction become even more important in times of crisis, as in warfare (and we are in a spiritual war first and foremost). God is permitting this crisis to test the faith of the faithful. Those will pass the test who remain at the foot of the Cross, like Our Lady, and not flee the Cross like almost all the rest. We are to remain within the legal structure of the Church, and not seek solutions or spiritual consolations outside of her. We must fight the fight from within.

The reality is that, during this crisis, many clergy among the traditionalist movement, even with the best of intentions, have been misleading their flock with erroneous arguments like the Sedevacantists on matters of jurisdiction for many, many years. And, in doing so, they have been giving their penitents invalid absolutions and witnessing invalid marriages (and incurring canonical penalties) the entire time. Some have even appealed to “danger of death” cases to justify engaging in other acts of governance such as annulling marriages, dispensing sacred vows and lifting excommunications and other censures. This perversion of the Church’s teaching on supplied jurisdiction has not only been an attack on the unity of the Church, but has been detrimental to the common good and even more so to the salvation of countless souls. We pray that those who have been misled are able to get to legitimate confessors with actual faculties, so they can be forgiven of their sin and restored to grace.

Photo by Jean Vella on Unsplash.

[1] For example, Cardinal Billot wrote: “This introduction shows, first, that legitimate dispensation of the sacraments can only come from the Catholic Church, so that anyone who does not have a mission from her, by that very fact administers illicitly, and anyone who by receiving the sacrament communicates with the sin of the minister receives sacrilegiously.”; “But the sacraments are the property of Christ. Hence they can be legitimately dispensed only by those who have a mission from Christ, i.e. those to whom the apostolic mission has been transmitted.” De Sacramentis, Thesis XVI, (L. 4, Contra Gentes, c. 76. Translated by John S. Daly.)

[2] As. Fr. Angles, SSPX correctly notes: “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.” “Validity of SSPX’s Confessions and Marriages,” by Fr. Ramon Angles, Part II, To establish an analogy of law to parallel situations (cf. canon 19), the Church’s jurisprudence also requires one to look to decisions of the Roman Curia and opinions of the doctors. There is no case in the Church’s jurisprudence which analogizes situations of periculum mortis to situations where there is no danger of death, as a basis for supplying jurisdiction for confessions in the latter cases. To the contrary, as this article demonstrates, supplied jurisdiction for confessions is highly restricted outside danger of death (being limited to “common error” and “positive and probable doubt”).

[3] Fr. Francis Miaskiewicz, “Supplied Jurisdiction According to Canon 209” (Washington, D.C.: The Catholic University of America, 1940), p. 145. In this article, I will quote extensively from Fr. Miaskiewicz’s 1940 dissertation, particularly because Sedevacantists (like John Lane and Gerry Matatics) praise the work as an authority on the suppletory doctrine (Lane even has a link to the entire work on his website

[4] Ibid., p. 147.

[5] Canon law uses “necessity” only three times in the context of sacramental confession, and each time it applies to clergy with ordinary jurisdiction, and not as a basis for triggering supplied jurisdiction: Canon 844, §2 (applies to priests of the Orthodox Churches—those with legitimate Apostolic Sees—who have been conceded habitual jurisdiction by the Pope, to minister to Catholics who are physically or morally impeded from approaching a Catholic minister); Canon 844, §4  (applies to Catholic ministers with ordinary jurisdiction to minister to non-members of the Catholic Church who manifest the Catholic faith and who are in danger of death or have another grave necessity as determined by the local bishop or bishops’ conference); and, Canon 961, §1, 2º (applies to Catholic ministers with ordinary jurisdiction to impart absolution in a general manner to multiple penitents at once when there are not enough confessors to hear confessions within a suitable time such that penitents would be deprived of grace through no fault of their own, and which necessity is determined by the local bishop).

[6] Canon 976: “Even though a priest lacks the faculty to hear confessions, he absolves validly and licitly any penitents whatsoever in danger of death from any censures and sins, even if an approved priest is present.”

[7] In reality, what has happened is that some without canonical mission have created this new fourth category of “necessity” under which they claim danger of death is only one example (or subcategory), and not a unique category unto its own. They then add “the crisis of the Church” as another example/subcategory of “necessity,” which they say justifies the claim that priests with no canonical mission receive supplied jurisdiction, and not just for confessions, but for all the faculties needed for the licit and valid administration of every Sacrament, and even the authority needed to perform acts of governance proper to the Pope or Roman Congregations (e.g, granting marriage annulments, lifting excommunications, dispensing from sacred vows). And since, according to their position, this suppletory principle is not limited to a particular territory, these faculties are universal and come to “all priests,” as if they all had a “super-extraordinary” apostolic mission, given to them directly by Christ in ordination.

[8] This quote was taken from a dialogue on Lane’s Sedevacantist apologetics website at

[9] The Roman Rota has described common error as: “In the practical order, common error exists whenever there is publicly placed a fact from which, if it were known by the community in question (e.g., a parish), all or nearly all would prudently think that power to assist at marriage belongs to a specified priest or deacon who as a matter of fact lacks it.” (Rota, decision, December 11, 1972; reported in Periodica, 63 (1974), pp. 459-462).

[10] Miaskiewicz, “Supplied Jurisdiction According to Canon 209, “p. 168.

[11] Ibid. p. 278 (emphasis added).

[12] Ibid., p. 228 (emphasis added).

[13] Note that there is a distinction between error and ignorance. Error requires the possession of some knowledge of the subject whereas ignorance implies the absence of knowledge. Common error, then, requires that the community form a judgment (here, whether the cleric has ordinary faculties) based on some knowledge. If the community is incapable of making a judgment due to ignorance of the subject matter (which would usually be the case because few Catholics actually know the difference between habitual vs. supplied jurisdiction), there can be no common error (only common ignorance). Further, while canonists have also debated the number of people required to constitute common error, it is generally held that the erroneous judgment of the majority of the community is required.

[14] We note the distinction between ordinary and habitual jurisdiction. Ordinary power is generally habitual, but not all power exercised habitually is ordinary. A parochial vicar may have the habitual faculty to hear confessions, but it is not an ordinary power, rather it is delegated by the ordinary of the diocese.

[15] We note that before Vatican II priests were generally said to have ordinary or habitual jurisdiction. Since Vatican II, the term “ordinary faculties” is more commonly used. In this article, I use “ordinary jurisdiction” and “ordinary faculties” as synonymous terms.

[16] See also can. 1041, by which their act of schism makes them irregular for the exercise of the power of orders.

[17] Again, this habitual power of governance may either be ordinary or delegated as a faculty.

[18] As Miaskiewicz says, “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” p. 167.

[19] Many Sedevacantist and independent priests who appeal to supplied jurisdiction for their illicit ministries wrongly analyze common error in a theological vacuum by overgeneralizing its application, hypothesizing that common error applies to any community that sees a priest put on a stole and go into a confessional and would believe the priest has faculties. That is a gross misapplication of common error. As Miaskiewicz explains: “The common error must be about the existence of a particular office or about the validity of the possession of jurisdiction by some particular person or persons. Common error must, then, be particularized” p. 311. In fact, some of these irregular priests even argue that they can engage in an act that provokes common error (in other words, that intentionally deceives people into believing they have faculties). Not only would common error not apply to their illicit ministries, but any act intended to induce common error is unlawful. As Miaskiewicz says: “First of all, it is to be noted, authors quite generally agree that it is in no way licit for a priest actively to induce common error either directly or indirectly” p. 291.

[20] As the Roman Rota held: “The sole and adequate reason for which the Church supplies a lack of power is the necessity of promoting the common good or of avoiding a common evil. But not for a merely private good.” (Rota, decision, December 11, 1972; reported in Periodica, 63 (1974), pp. 459-462).

[21] Miaskiewicz, p. 225 (emphasis added).

[22] Ibid., p. 178 (emphasis added).

[23] Ibid., p. 237.

[24] Ibid., p. 191.

[25] Ibid., p. 301.

[26] 1917 Code, Canon 2314:  § 1. All apostates from the Christian faith and each and every heretic or schismatic:..3.° If they give their names to non-Catholic sects or publicly adhere to them, they are by that fact infamous, and with due regard for the prescription of Canon 188, n. 4, clerics, the previous warnings having been useless, are degraded.” Also see 1378, §2, º2 (1983 Code) and 2366 (1917 Code). Miaskiewicz is clear that the text of canon 2366 intends to penalize the usurpation of penitential jurisdiction by “a priest who without possessing penitential jurisdiction presumes to hear sacramental confessions. It does not matter for what reason the confessor lacks the necessary jurisdiction. Perhaps it was never conferred upon him, or perhaps he lost it. Perchance it does not extend to the territory in which he uses it, or to persons over whom he exercises it, as for example, when he hears the confessions of women religious without the required special delegation.” p. 301.

[27] Billot on Sacraments and Mission /DeMembris Ecclesiae.

[28] Miaskiewicz, p. 225 (emphasis added).

[29] Ibid., p. 178 (emphasis added).

[30] A doubt of law is intrinsic if the probability is founded solely upon the careful and detailed examination of the problem by one who is a subject matter expert in the legal area in question, which is beyond the competence of the ordinary priest or confessor. A doubt of law is extrinsic when the probability is based on the authority of others who are very learned in the area. An opinion is extrinsically probable because of a public probability when at least five or six approved experts of great name independently support the opinion (as opposed to private probability based on the opinion of a single learned scholar, a scenario which is almost universally opposed by canonists as a legitimate basis for ecclesia supplet).

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