The Validity of Confessions and Marriages
in the chapels of the Society of St. Pius X

A CANONICAL STUDY

by Rev. Ramón Anglés

2. SUPPLIED JURISDICTION IN CASE OF COMMON ERROR

2.1. A LITTLE HISTORY

Many of the canonical rules of the Church have their origin in Roman Law, and the suppliance of jurisdiction in case of common error is one of them.

There was a well-educated slave named Barbarius who escaped from his master and arrived in Rome. Roman Law declared null and void the acts of slaves, and they were unable to exercise any public charges. But clever Barbarius managed successfully to hide his origins and presented himself as a citizen, and he did it so well that the discriminating Roman people elevated him to the important dignity of Praetor, in which capacity Barbarius handed down many judicial sentences for years. Years of invalid acts, because he remained an unauthorized agent, a slave! Only after his death the truth about his lowly origin was known. What was to be done?

Pomponius and Ulpianus, both great jurists, explained that in order to avoid the great public disorders to follow from the invalidity of such actions, the Roman people ratified them as though they were valid from the beginning. This solution was a more human method of acting, and after all, Rome could have given jurisdiction to a slave, had she so wished! Hoc enim humanius erat. And therefore the people of Rome prevented the consequences of such actions. The solution was extended to a multiplicity of similar legal matters, and soon a new axiom of law became generally accepted: Error communis facit ius. We read this interesting story in the Digestum, l. I, tit. xiv, c.3.

2.2. THE CANONS IN ENGLISH

*In common error or in positive probable doubt wether of fact or law, the Church supplies jurisdiction both for the external and the internal forum. (Canon 209)

* #1. In common error about fact or about law, and also in positive ad probable doubt about law or about fact, the Church supplies executive power of governance both for the external and for the internal forum.

#2. This same norm applies to the faculties mentioned in cann. 883, 966 and 1111,1. (New Code Canon 144)

2.3. NOTIONS

COMMON ERROR is not common ignorance; the terms are not convertible, and therefore the fact that a community ignores that the priest lacks jurisdiction is not a sufficient reason for the Church to supply jurisdiction. An ERROR is required on the part of a community, whose members (or a number of them) actually believe that a priest has jurisdiction, even though in fact he does not have it. This is what we call ERROR OF FACT. However, it is a common sentence among canonists nowadays that it is sufficient to have an ERROR OF LAW, also called VIRTUAL ERROR, in order to fulfil the conditions required for the suppliance of jurisdiction. The New Code ratifies explicitly this doctrine in Canon 144, 1. Error of law consists in a FACT whose nature is sufficient to induce the error in a community, even though nobody in the community is mistaken about the lack of jurisdiction in the agent. It is not an actual error, but a fiction of law: an interpretative error, a fact that of its nature WOULD lead many in actual error. This means practically that if a priest without jurisdiction to hear confessions sits in a confessional or puts on a purple stole indicating that he is ready to hear confessions, the Church will supply his lack of jurisdiction for every absolution he will give. Surprising as it may appear, this is sound canonical doctrine. The different authors will shed light in the question, and will provide us as well with the elements required to prove our case.

* Bucceroni, Casus Conscientiae, 6 edit. 129, 5. Well before the Old Code of 1917, this known author considers sufficient a virtual common error in order to obtain the suppliance of jurisdiction.

* Vidal, Jus Canonicum, II, 1923, p.369 affirms that there is common error in the sense of the Canon when there is a public fact which in itself suffices to provoke an error.

* Cappello, De Poenitentia, 1944, #340ss. declares as certain the opinion which requires for common error factum externum et publicum ex quo fideles necessario in errorem inducantur. And in the same article, # 342, he gives as an example of such sufficient fact the one of a priest without licenses entering the confessional signifying that he is ready to hear confessions. In this circumstance, Cappello says, sive ille sacerdos plures aut paucos audiat poenitentes, sive forte nullum, habetur iam antecedenter communis error ortus ex praefatis adiunctis.

* Regatillo and Zalba, Theologia Moralis Summa, 1954, De Matrimonio, 928: Error communis de iure est qui fundatur in facto de se publico quod ex natura sua inducit quemlibet ad putandum talem sacerdotem habere iurisdictionem, cum ea careat; seu qui fundatur in facto per se apto ad inducendum omnes in errore de existentia iurisdictionis. Ut si sacerdos publice sedeat in confessionali, quasi spectans poenitentes. Hodie SENTENTIA GENERALIS EST ECCLESIAM SUPPLERE IURISDICTIONEM AD CONFESSIONES NON SOLUM IN ERRORE COMMUNI DE FACTO, SED ETIAM DE IURE.

* Coronata, Compendium Iuris Canonici, 1950, Vol. 1, #558: Sufficit ut causa posita sit ex qua multi et fere omnes in errorem inducantur, vel saltem ex communiter contingentibus induci possint, licet forte de facto pauci prorsus vel etiam unica persona erraverit.

* The same Coronata, op. cit., Vol. 3, #259: Plures tamen auctores, praesertim e modernioribus, docent sufficere ut fundamentum erroris habeatur seu ut habeatur factum aliquod ex quo facile notabilis pars communitatis coniicere possit sacerdotem illum ad quem accedet populus ad suam confessionem faciendam iurisdictione gaudere, quamvis de facto nemo adhuc accesserit et forte pauci omnino accesuri sint. Tale factum esset e.g. si sacerdos missionarius aut concionator in sede confessionali ad poenitentes exspectandos sedeat.

* Vermeersch and Creusen, Epitome Iuris Canonici, 1937, 1, #322: Errorem interpretativum seu de iure exsistentem sufficere censemus. Nam, posito publice facto quod prudentes quoque in errorem inducit, hic publicus, non privatus, erit, atque Ecclesia, quae ob bonum commune iurisdictionem supplet, non censenda est permittere ut multi, immo pauci fructu validi exercitii iurisdictionis careant, quia plerique non simul, sed alii post alios in errorem inciderunt.

* L’ami du Clergé, 1925, p.106, and 1948, p. 252, admits that it is sufficient to have a case of virtual common error, meaning by this une cause de nature à fonder l’erreur d’un grand nombre.

* Aertnys and Damen, Theologia Moralis, 1950, II, #359, repeat the same doctrine by defining common error as follows: si factum publicum aliquod positum fuerit quod per se natum est multos in errorem ducere.

* Pugliese, in Palazzini’s Dictionary of Moral Theology, 1962, article Jurisdiction, Supplied: the Church supplies jurisdiction in a case of common error. The error may be due to a false conviction concerning the possession of the required jurisdiction. It is necessary, however, that this conviction arise from a positive fact which would cause the faithful reasonably to assume that the priest had the required jurisdiction. A case in point might be . . . that of the priest who, acting as if he had jurisdiction, occupies the confessional or imparts absolution, when in fact he has no jurisdiction . . . (Common error) is called error of law when it stems or may stem from a fact which of itself is such as to lead many people into error even though in fact no one errs. Today it is generally held (and such an interpretation may be called certain) that the error of law is sufficient to require that jurisdiction be supplied.

* Van Kol, Theologia Moralis, 1968, vol. II, #316: Communior sententia hodie admittit Ecclesiam etiam supplere in errore de iure tantum communi: i.e. si habetur factum seu fundamentum publicum, quod natura sua aptum est ad communitatem in errorem inducendam... Idcirco error communis certe habetur... si sacerdos, iurisdictione carens, in sede confessionali sedet exspectans fideles ad sese accedentes.

* Lombardía, Código de Derecho Canónico, 1983, in his commentary to New Code Canon 144: Common error of law is the one which refers in some way to the interpretation of the juridical norms which regulate the exercise of the power of jurisdiction. In order to obtain the suppliance of power, it is necessary that the error has its foundation on a public fact, firm and solid, capable of producing such error, and that the application of the suppliance may have an incidence in the general interest and benefit. This has a particular application to the usual faculties for hearing confessions, to assist to marriages and to the cases contemplated in Canon 883 concerning the minister of confirmation.

* The New Code expressly recognizes in its Canon 144, #1, that the error de iure is sufficient for the suppliance.

2.4. COMMON ERROR IS ALSO APPLICABLE TO MARRIAGES

For some time there was a doubt concerning the application of the suppliance of jurisdiction in case of common error to the assistance to marriages by a putative pastor or similar cases in which the priest did not have delegation. This was solved by a decree of the Code Commission, 26 March, 1952, which appeared in the Acta Apostolicae Sedis 44-497 and which I transcribe in the English translation given by Bouscaren, The Canon Law Digest, vol.3, p. 76:

The Code Commission was asked: Whether the prescription of Canon 209 is to be applied in the case of a priest who, lacking delegation, assists at a marriage.

REPLY: In the affirmative.

Given at Rome, from Vatican City, 26 March, 1952.

With the New Code of 1983, all controversy in this subject must definitely cease. Indeed, it is explicit in Canon 144, # 2, that the norm concerning the suppliance of jurisdiction in case of common error must also be applied to the assistance to a marriage.

In the same New Code we read elsewhere a direct reference to the same exceptional case:

* Ea tantum matrimonia valida sunt, quae contrahuntur coram loci Ordinario aut parocho vel diacono ab alterutro delegato qui assistant, necnon coram duobus testibus, secundum tamen regulas expressas in canonibus qui sequuuntur, et salvis exceptionibus de quibus in cann. 144, 1112,#1, 1116 et 1127, ## 2-3.(New Code Canon 1108)

It remains for us to explain in which circumstances can we apply the doctrine of common error to the celebration of a marriage. It is very simple: it is sufficient to have a situation in which a priest without the required faculties REGULARLY assists to marriages in the same place, so that a public fact is repeatedly presented which by its nature may induce the faithful to believe that the priest has the faculties to assist to marriages. Remember that this is pertinent and applicable EVEN THOUGH the faithful know that the priest has no faculties: as we saw it so clearly explained in Palazzini’s work, error of law stems or may stem from a fact which of itself is such as to lead many people into error even though in fact no one errs.

A quick overview of matrimonial jurisprudence reveals that a parochus putativus validly assists to marriages despite his lack of faculties.

Naz, Traité de Droit Canonique, I, # 496: Ainsi, si l’erreur commune existe sur la qualité de curé, les mariages contractés devant ce curé putatif sont néanmoins valides.

Lazzarato, Jurisprudentia Pontificia, De Causis Matrimonialibus, vol. II, 917 # 20-21: Contingit autem error communis, si quis est parochus putativus, quia publice existimatur legitimus parochus et non est. Item de putativis vicariis paroecialibus, de rectoribus aut capellanis, deque delegatis puta ad confessiones excipiendas. Neque amplius consistit controversia, an exigatur titulus coloratus, quem c. 209 non requirit. En exemplum: Mortuo parocho aliquo in oppido, alius sacerdos munera parochi exercet, ita ut nunc ab omnibus verus existimetur parochus et non est. Ecclesia supplet.

And in # 24 he explains the case of a priest who fraudulently presented himself as the pastor of the immigrants from Belgium: Attentis igitur Patris Philippi dictis et gestis, ut parochus Belgarum facile existimari potuit, et revera existimatus videtur. Atqui, ut in iuris expositione ostensum est, Ecclesia propter bonum publicum supplet iurisdictionem parochi putativi, illius scilicet qui non est, sed reputatur publice talis, nec, Codice vigente, titulus requiritur coloratus, v.g. ut paroecia ei collata sit quamvis irrite.

It is interesting to note the insistence of the canonists in repeating that a colored title is no longer required. The colored title is some act or situation which ordinarily is sufficient to confer jurisdiction, but which in the particular case is rendered invalid by some secret impediment. In a word, it was an empty title, a fictional foundation upon which the suppliance could take form. This is no longer required, and we will see its importance when we make the application to our case.

Van Kol, a post-Vatican II theologian, treats the application of common error to marriage as follows (op. cit. # 656): Quid de suppletione in errore communi? Iam dudum constat CIC 209 applicari posse in casu alicuius parochi vel Ordinarii loci putativi, qui sc. vi officii habilis habetur sed ratione alicuius vitii officium suum invalide exercet. Hodie praeterea constat canonem etiam applicari posse in casu alicuius sacerdotis qui, delegatione carens, matrimonio assistit, at iusta sententiam communiorem tantummodo si sacerdos ille, non ex delegatione ad matrimonia determinata, sed ex delegatione generali assistere supponitur: quia tunc tantum periculum est ne plura matrimonia invalide contrahantur.

But even the danger of invalidity of MANY matrimonies (and therefore a common danger following) seems no longer to be a requirement to apply the doctrine of common error, if we must believe the illustrious canonists of the University of Navarra (Spain), Instituto Martín de Azpilcueta, who were requested by the Pontifical Commission for the Revision of the Code to work on the first schemata of the new legislation of 1983.

In their excellent commentary to the New Code, they do not hesitate to write: Esta suplencia opera, como en el c. 144 #1, en caso de error común y de duda positiva y probable. En ambos casos es indiferente que sea de hecho o de derecho. De este modo se solventa la discusión doctrinal acerca de si el error virtual o de derecho bastaba para la operatividad de la suplencia. Por lo demás, analizando los trabajos preparatorios del CIC (cfr. Communicationes, 10, 1978, pp.90-92) parece que la ratio de esta expresa mención es limitar al máximo los supuestos de nulidad por defecto de forma, haciendo que la suplencia actúe en el mayor número de supuestos posibles. Por esto, no parece que pueda sostenerse hoy que el error común vaya necesariamente unido a la noción de interés público o general, como se sostiene en la jurisprudencia posterior a la respuesta de la CPI de 26.III.1952: bastará el bien privado (un solo matrimonio) para que pueda aplicarse la suplencia.

What this Spanish quotation affirms is that the post-conciliar legislation wishes to reduce as much as possible the cases of invalidity because of defect of canonical form, and that the present approach is to make the suppliance act in as many cases as possible. Furthermore, it cannot be sustained nowadays that common error is united to the notion of common interest, but that the application of suppliance can be made in the case of the private interest of only one matrimony. The introduction of this important innovation in canonical doctrine reinforces our case.

2.5. IS IT PERMITTED TO EXERCISE JURISDICTION SUPPLIED BY COMMON ERROR?

The question is not the validity of such suppliance of jurisdiction; this has been treated extensively already. What we want to know is IF IT IS LICIT to use such jurisdiction supplied pro casu, if a priest without jurisdiction can voluntarily put an act which provokes common error, in order to validate his action, whether it may be hearing confessions or assisting at matrimonies.

There is indeed a very solemn interdiction for a priest to hear confessions without the required faculties (see Canon 2366). But all the authors teach that a GRAVE REASON justifies and legitimates the use of such supplied jurisdiction.

Naz, Dictionnaire de Droit Canonique, article Erreur Commune, IV: Un pretre dépourvu du pouvoir de confesser serait coupable si, sous prétexte d’erreur commune, il confessait quelques fidèles qui peuvent facilement se confesser à d’autres; mais le même se mettrait licitement au confessional dans l’église où tout le monde attend une veille de grande fête et où, sans son concours, beaucoup de fidèles seraient privés des sacrements.

Cappello, Summa Iuris Canonici, vol. 1, # 255: Sacerdos licite agit in casu erroris communis, si diebus dominicis et festis de praecepto aut alia occasione extraordinaria fideles cupiant confiteri, et alius sacerdos desit, aut nonnisi cum notabili incommodo adiri possit.

Van Kol, op. cit., # 316: In errore communi sacerdos semper valide absolvit omnes ad sese accedentes, etiam paucos illos qui defectum iurisdictionis forte noscant. Attamen illicite agit sacerdos qui absqui gravi ratione errorem communem provocat.

It is therefore licit for a priest without faculties to create a situation of common error in order to provide the faithful with the Sacraments that they may not receive otherwise.

Once again, the first law must be the salvation of the souls.

2.6. APPLICATION TO OUR CASE

2.6.1. REGARDING CONFESSIONS

In the Society of Saint Pius X chapels, schools, Mass centers, summer camps, and extraordinary gatherings of faithful in the occasion of pilgrimages, ordination ceremonies, and similar cases, it is sufficient for a priest to sit in the confessional, to put on a violet stole or to give some external public sign which the faithful recognize as an indication that he is ready to hear confessions for a group of people, for common error at least de iure to exist. In many established chapels the common error will be de facto.

The priest in such conditions will VALIDLY absolve the faithful in virtue of Canon 209, New Code Canon 144.

He will also LICITLY use this power because of the need of the souls who, without his action, would be obliged to remain for some time without confession, or else to go to a Modernist priest who may very well put their faith in danger.

2.6.2. REGARDING MARRIAGES

In our established chapels and Mass centers, where the faithful usually receive the Sacraments and where matrimonies are habitually blessed, there is an undeniable situation of common error at least de iure. Our priests act as putative pastors and the faithful go to them in order to ask their assistance to marriages. The Church supplies jurisdiction in every case because there are many external and public facts (the actual existence of the "parish," the frequent weddings celebrated in it, the common acceptance of the fact that marriages are blessed in our chapels) and also because there is a common interest to serve, and a common danger to prevent.

The modern interpretation exposed by the Navarra professors, who declare that private interest suffices nowadays for the application of suppliance on the grounds of common error, allows us to extend common error to the sporadic celebration of one marriage, which is the prevalent case of most of our Mass centers.

It is pertinent to remember at this point that a colored title is no longer required to profit from this exceptional suppliance of jurisdiction. We are not to discuss whether our chapels are parishes or not, nor if we have a juridical basis in acting as parish priests, etc. The mere FACT that we administer habitually the Sacraments to some community of faithful is sufficient to apply the doctrine of common error.

Our priests act therefore VALIDLY when they bless the marriages of traditional Catholic faithful, on the grounds of common error, in which the Church supplies the required jurisdiction. They also act LICITLY because of the same reason indicated before: there is a GRAVE cause motivated by the present crisis of faith.

2.6.3. IS THERE ANY DOUBT?

Perhaps all these arguments do not fully convince the adversary of our thesis. The Church in her motherly wisdom has given us the answer in Canon 209 (New Code Canon 144).

Do you still doubt that our reasoning is correct? As long as the doubt is a positive and a probable one, the Church will supply jurisdiction for both the internal and the external forum. Which is the easy subject of our next article.