IHS

Rama P. Coomaraswamy, M.D., F.A.C.S
640 Nod Hill Road
           Wilton, Ct., 06897

						July 31, 2001.St. Ignatius

Dear Mr. and Mrs. Kasbar:

Thank you for sending me your piece on jurisdiction. I am impressed by its great length and seeming scholarship. A proper response would require days of study which I am unable to devote to the issue at this time. However, since your piece being available on the internet has caused disquietude to some souls who have written to ask me about it, I shall try to respond as best I can. My response will be in two parts. First I shall offer for your consideration the statement of the priests in Campos Brazil with regard to these problems. Then I will offer a few comments on your own thesis.

In consequence of this necessary resistance, we continue our priestly ministry in conformity with Catholic Tradition, for the good of Holy Mother Church and for the salvation of souls.

THE BASIS OF OUR EXTRAORDINARY MINISTRY

"THE SALVATION OF SOULS IS THE SUPREME LAW OF THE CHURCH."

In conformity with the rules of ecclesiastical discipline, laymen have the right to receive from a clergyman spiritual goods and in particular the helps necessary to salvation (1983 Code of Canon Law, Canon 213).

To this right of the faithful corresponds, for priests, the duty of charity imposed by divine, natural, and positive law which obliges them under pain of mortal sin to help souls in this grave state of spiritual necessity. And no power can oppose this duty.

St. Thomas affirms: "Necessity confers a dispensation, because necessity does not depend on the law" (ST I_II, Q.96, Art.6); "the dispositions of human law can never contradict natural law, nor the law of God" (S1; I_II, Q.66, Art.7).

But, how to exercise this ministry with the surety of the ecclesiastical authorities? Without the jurisdiction that normally comes from the competent authorities? The priest is essentially and radically ordained for the Church in general, and, by the line of hierarchy and discipline, for the service of a diocese.

Accordingly the history of the Church records cases in which priests exercised their powers without any line of dependance from the diocesan bishop. In England in the 16th century, when the bishops embraced heresy, some priests remained faithful to the Church and continued to administer the sacraments. They were nonetheless separated from their bishops, who incurred excommunication as heretics. The refractory priests furnish a comparable example from the time of the French Revolution. Detached from the bishops who had sworn allegiance to the Civil Constitution on the Clergy, they continued to exercise the~r priestly powers.

The same thing is currently taking place for priests in communist countries, particularly for the heroic priests of the clandestine Church in China.

POWER OF ORDERS AND POWER OF JURISDiCTION

Power of orders. That power which proceeds formally from priestly ordination or episcopal consecration, and which gives the capacity of exercising sacred functions.

Power of jurisdiction "Ecclesiastical jurisdiction is the public power, which exists in the Church by divine institution, of governing baptized men in view of their supernatural end" (Vermeersch_Creusen I,312).  

Distinction between the power of orders and the power of jurisdiction: "The power of governing potestas regendi) the faithful through laws, judgments, and penalties is distinct from the power of sanctifying them through the celebration of divine worship and through the celebration or the public application of the sacraments and sacramentals" (Vermeersch_Creusen, ibid).

The power received at ordination (power of orders) is sufficient to validly celebrate the Holy Mass, baptize, administer extreme unction, exercise the apostolate, catechize, etc.

The same power of orders is necessary, but not sufficient, to validly hear confessions and to assist at marriages as the qualified witness. Besides the power of orders is needed, at the same time, the power of jurisdiction which, usually, comes from the local bishop. Whence arises the question: when a  priest does not have ordinary jurisdiction as conceded by the diocesan bishop, can he, nevertheless, make use of the powers received in priestly ordination?

In urgent cases, touching the supernatural welfare of souls, the Church supplies for the absence of canonical jurisdiction, or, better, the Church directly concedes the jurisdiction necessary for the efficacity of the sacramental act for the benefit of souls. St. Alphonsus de Ligouri explains, "The reason for this is that otherwise many souls would be lost and, for this reason, the supplying of jurisdiction by the Church can be reasonably presumed” (De Paenitentiae Sacramento, tr. XVI, c.V, n. 90).

The Council of Trent assures us that the loss of souls on account of juridical restrictions or limitations is contrary to the mind of the Church: "With great piety, so that no one be lost on this account, it has always been observed in the Church of God that no restriction [of jurisdiction] holds in danger of death [the extreme necessity of an individual, equivalent to the grave necessity of a great number] " (F. Suarez, De Paenitentia disput. XXVI, sect.IV, n.6). Suarez wonders whether this perpetual custom, commonly observed by the Church, might not be of divine institution. In any case, he concludes, the Church could not abolish it, for that would be to make use of power "not to edify, but to destroy" (ibid).

And Pope Innocent XI definitively establishes that, in case of necessity, the Church supplies the lacking jurisdiction, even for priests who may be heretics, destitute, and excommunicated (St. Alphonsus, De Pacnitentia, Vol.XVI, c.V, n.92).

FACULTY OF HEARING CONFESSIONS

The power of absolving penitents is a vicarial power of divine right, delegated by God to His Church, in the person of His priests. Through ordination each priest receives radically the power of absolution. But to exercise it licitly and validly, he must receive the right to do so.

Normally, the priest receives the faculty of hearing confessions from the diocesan bishop. But there are some cases where the priest receives directly from the Church—as the Code of Canon Law foresees the faculty which he lacks. In such cases it is said that the Church supplies this faculty, or delegates it  to the priest who does not possess it.

It is interesting to note that this "jurisdiction" of hearing confessions is called imperfect jurisdiction, and is distinct from the jurisdiction in the strict sense that the teaching Church possesses, linked to the power of governing. Thus it is clear that its exercise does not imply any act of government, or of usurpation of hierarchical power. And the current Code of Canon Law no longer calls this power "jurisdiction," reserving this name for the power of governing (Canon 129) as it regards the external order of the Church, whereas the faculty of absolution is directed towards the inner forum of the conscience (cf the commentary on Canon 966 by Fr. Jesus Hortal, S.J.).

The priest, thus, who has not received this faculty from the diocesan bishop, or who has been deprived of it without grave cause, can not only validly but also licitly have recourse to Canon Law from the moment that one of these cases arises according to which there is an automatic delegation of this necessary faculty. There are other cases that can, according to the common teaching of the canonists, be reduced to such cases, especially when parallel passages in the Code are compared with the general principles of Canon Law as expressed in canons 17 and 19.

The Code of Canon Law, in Canon 976, establishes that every priest has the faculty of absolving, validly and licitly, all sins and penalties of all penitents who find themselves in danger of death, without any exception, even when another priest with ordinary jurisdiction is present. According to the Canon, it matters not whether the danger comes from an intrinsic cause (sickness, extreme old age, difficult childbirth, etc.) or from an extrinsic cause (war, earthquake, fire, medical operation, etc.). The canonists also include amongst those in danger of death: persons in a city besieged by an enemy, those who see themselves menaced by a lasting dementia, and also those who find themselves, at the instant in question, in a situation such that in the future they may no longer have access to confessors who might absolve them.

The grave necessity of a great number (that is to say, general and publlc) is equivalent to the extreme necessity of an individual: "Gravis necessitas communis extremae equiparatur" (P. Palazzini, Dicionarium Morale Canonicum, Vol.I, p.571). This is the shared teaching of the theologians and canonists. Thus, in the current situation of widespread desacralization and scandal in the Church, relations with priests and bishops engaged in an ecclesiastical overhaul which spurns Tradition represent, for many faithful, a concrete danger of losing the purity and integrity of the Faith, without which no one can be saved. One can likewise compare the situation today of the Catholic, faithful to the Tradition of all times, to that of those who find themselves in danger of physical death, with the aggravating circumstance that it concerns the danger of spiritual death. This is a case of public and grave necessity, equivalent to the danger of death. Canon 976 applies to thesecircumstances.

Should any doubt remain concerning this power conceded directly by the Law, the Church would still supply the lacking faculty, as Canon 144 makes clear:

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

"The supplying of the executive power of government {jurisdiction]," the canonist Hortal says in commenting on this Canon,

is founded on the common good, in order to avoid uncertainty concerning the validity of certain acts of authority. This is why it is independent from the claim on which it is based and even of the good faith of the person who makes use of it. For example, a priest who lacks the faculty of hearing confessions could put himself in circumstances that induce or could induce persons present to falsely believe that this faculty has been granted him. This is sufficient for the jurisdiction to be supplied, notwithstanding that the priest in question—lacking just cause for his action—might act in a gravely illicit manner.

St. Thomas explains:

Every priest...in virtue of the power of orders, has power equally over all and for all sins; the circumstance of not being able to absolve all people of all sins derives from the jurisdiction imposed by ecclesiastical law. But, since "necessity is not subject to law," [cf Consilium de obser. Ieian., De Reg. Iur. (V Decretal) c.4] in case of necessity the priest is not prevented by the rules of the Church from absolving truly and sacramentally, given that he possesses the power of orders (ST: Supplementum, Q.8, Art.G).

In case of necessity the priest is obliged to supply help, within the limits of his own capacities which, for the priest, amounts to staying within the limits of his power of orders. This is why, according to the moralists and canonists, in the case of the extreme need of any individual, as in that of a great number, the priest is obliged under pain of mortal sin, to give sacramental absolution, even if he is ordinarily deprived of this faculty.

St. Alphonsus de Ligouri writes that even:

...if he can validly administer the sacraments, even one who is excommunicated vitando [to be avoided] is obliged to administer them in articulo mortis [the extreme need of one person = the grave need of many] by divine and natural precepts which the human precepts of the Church cannot oppose (St. Alphonsus, Theologia Moralis,I.VI, treatise 4, No. 560

When the extreme necessity of  an individual or the grave necessity of many demands it, the exercise of the power of orders, in all its extension, is put into effect, not by the will of the hierarchical superior, but directly by the state of necessity itself.

VALIDITY OF MARRIAGES

Let us listen to Pope Pius XII, in his address to young married couples on Mar. 5, 1941:

In the sacrament of marriage, what is the instrument of God which has produced grace in your souls? Is it perhaps the priest who has blessed and united you in marriage? No. It is true that, apart from certain well_defined exceptions, the Church prescribes for the spouses, in order that their bond and their mutual commitments may be valid and procure grace for them, that they exchange them in the presence of a priest; but the priest is only a qualified witness, the representative of the Church, and only presides over the religious ceremonies which accompany the marriage contract.It is you yourselves who, in the presence of the priest, have been appointed by God as ministers of the sacrament of marriage; He has made use of you in order to establish your indissoluble union and to pour out in your souls the graces which will make you constantly faithful to your new duties.

Until the 16th century every valid exchange of consent between two baptized persons automatically produced a sacramental marriage, even outside of church and without ceremony. However, these "clandestine marriages," however valid, were harmful to the good order of the Church. Making use of her supreme power in matters of sacraments (when their substance is respected), the Church defined at the Council of Trent (in the decree Tametsi), that, in the Latin Church, marriages would no longer be valid, apart from exceptions foreseen by the law, unless the parish priest or his delegate were present (the parish priest is called the "canonical witness" and marriage in his presence the "canonical form"). This decree had no force of law in many countries, notably in the Protestant countries of Europe and in most other continents (cf Raoul Naz, Traite de droit canonique, II, p.368).
Only in 1908 with the decree ne temere (incorporated in the 1917 Code of Canon Law), did the “canonical form” in the presence of a priest become obligatory in the whole Latin Church (Dictionaire de theologie catholique, XIII col. 745-747); cf. Les mariages dans la Tradition sont-ils valides? By Fr. Gregoire Celier).

The 1983 Code of Canon Law considerably enlarged the exceptions to this obligation of “canonical form,” especially for that which regards those who have abandoned the Church by a formal act (heretics). In summary:

The ministers of the sacrament of marriage are the spouses themselves;
In itself, the presence of the priest is not essential; in fact, many marriages, even today, are valid without the presence of the priest;
For an act of great importance, such as marriage, it was for exclusively disciplinary reasons that the Church prescribed, as a general rule, the presence of a parish priest or his delegate for the validity of the act;
This prescription is recent and valid only for the Latin Church, not for the faithful of Eastern rites.

This being established, it must be pointed out that the Church has explicitly foreseen dispensation of the spouses from the “canonical form” - the presence of the qualified witness (the parish priest or his delegate.)- in certain cases: for example: in the case of great inconvenience (incommodum grave). One of the principal cases in which this dispensation from the canonical witness is apparent is foreseen by Canon 11116;, 1,2, which prescribes that, if the spouses have a grave impediment to procuring or having a priest with jurisdiction, and if one foresees that this impediment will last one month, they can call upon any priest to bless their marriage, in the necessary presence of two other witnesses. This mariage would be perfectly valid in the eyes of the Church.

And further, the canonists explain that the grave impediment could be physical (distance, contagious illness), psychological (due to fear of the parish priest, for very timid people!), moral (the risk of revealing the identity of the priest, at times of persecution; ....

My own comments:

By returning to “presidents” who have jurisdiction and accepting the jurisdiction of the post-Conciliar Church, you must apostasize from the faith. This is of course the dilemma facing any Catholic today. Traditional Catholics who accept the validity of the post-Conciliar “popes and clergy” must accept all they teach - all of Vatican II, and all the new false sacraments. Picking and choosing is not Catholic. Since I assume that this is not your intention, The only conclusion that your thesis leads to is that the Catholic Church is dead - finished. And such goes against Christ’s promise that “the gates of hell shall not prevail.” 

I somewhat doubt that Apostolicity is totally dependent upon jurisdiction. At the Council of Florence the Church accepted the fact that the Greeks had a valid Apostolic succession, though of course they did not have jurisdiction. This is why the Church has never denied the validity of their Sacraments, and indeed why a Catholic in danger of death when no Catholic priest is available, can turn to a Greek Orthodox priest for the viaticum.

As an aside, Pius XII did give Archbishop Thuc permission to consecrate bishops without prior approval from Rome. He did this because he foresaw the possibility of a communist takeover which would make getting such approval impossible. However this says nothing with regard to your thesis. 

Your argument that it is impossible for there to be a conflict between the mission of the Church (the salvation of souls) and  her jurisdictional laws is a personal opinion. (page 17) Indeed, St. Thomas does envision such a situation (vide infra). Nor do I agree that the “saving of the Church” is more important than “the saving of souls.” This distinction goes against logic. The saving of the Church is so that souls can be saved and the two cannot be separated. as if one were more important than the other. Ask yourself, Why did Christ establish a Church?

Another point you make in several places is that God has foreseen all contingencies. I agree that He has, for this follows from the omniscient nature of God. This does not mean however that the present crisis is not a crisis. God in His wisdom can allow for crises to occur precisely in order to allow (or force) us to act as He would have us act.  Nor is the present crisis to be likened to prior crises, however serious. The Arian crisis was a Christological heresy - the present crisis is the sum of, or should I say, the mother of all crises. This is of course open to debate, but be that as it may, one must admit that it is some type of crisis. (If God knew that Saul would defect, why did He allow for his consecration as King. God allows evil and uses evil to bring about good.) 

With regard to Epikeia, I would suggest you read The History, Nature and use of Epikeia by Lawrence Riley. (Cath. Univ. Disertation, No. 17) Your whole argument about Epikeia misses the fundamental issue involved. To just give you a few passages taken from this text:

Aristotle’s position: An individual may find himself confronted with a case which, although it is included in the law insofar as the words are concerned, nevertheless is not comprehended in the general law, if the intention of the legislator, and not merely the verbal formula be scrutinized. And so, he emends or corrects the law; he prudently judges that if the lawmaker had foreseen this particular case, he would not have wished to bind his subject; and so the subject does not observe the law as it is written. In other words epikeia is used. Moreover, as Aristotle is careful to point out, the error is not in the law, for the law in general may be just and ordained to the common good. “All law is universal, but about some things it is not possible to make a universal statement which shall be correct”

St. Thomas: he maintains that in an emergency case there is no judgement made about the law itself, but rather about the individual case in which the words of the law are not to be observed. St. Thomas insists upon the intent of the legislator, and of course in the present situation the legislator is Christ Himself. What then is the intent of the legislator in the present situation. You may (falsely) argue that God foresaw the present situation and therefore there is no possible room for exception - however, as St. Thomas says. “commands which are given under the form of a general precept do not bind all persons in the same way, but according to the requirements of the end purposed by the legislator; if anyone through contempt of his authority should disobey a precept, or violate in such wise as to frustrate the e3nd intended by him, such a one sins mortally; if, however, one fails to observe a precept for some reasonable cause, especially if the legislator, were he present, would not insist upon the observance of the law in the case, such a transgression is not a mortal sin.”

Again, St. Thomas seems to be quite clear in maintaining that epikeia may be used only when the common good is involved. “The letter of the law must always be observed by the subject unless there be a danger to the public good.” Nor are there lacking other statements of like tenor... the Angelic Doctor implies that the common good must always enter into the case before epikeia may be licitly used. Thus: “If there should arise a case in which such observance of the law would be harmful to the common safety, it is not to be obeyed. In discussing the example adduced to illustrate his teaching, he says that it is permissible to act “contrary to the words of the law in order that the general good which the legislator intends may be subserved.”

You may well ask just what kind of jurisdiction traditional priests do have. I would answer - and this is a personal opinion - they have that amount of jurisdiction required to perform their functions in the present circumstances. no more, and no less. I would have you imagine a physician traveling in say California where he is not licenced. He comes across a car accident and acts to save a life - oops, he is not licenced (and jurisdiction is like a license) you would say he should let the patient die. Now of course, he saves a life, but this does not give him the right to open a practice in California. The parallel is pertinent because priests are faced with people who are spiritually in danger of death, and you would have them walk away. Such is not possible within the Charity of Christ. 

You mention the fact that traditional priests often don’t agree with one another. This is unfortunate, and they like most laypeople tend to have a vision of the Church as consisting of a great many rules all of which must be followed to the letter - and often disagree about the letter.  Now, if the purpose of the Church is the saving of souls, let us for a moment think about how souls are saved. This requires both the grace of God and the response to that grace on the part of individuals. What strikes me about many individuals - both lay and clergy - is that the excessive involvement with canon law etc., is to the detriment of a life of prayer and sacrifice. I see little evidence of prayer life among traditional Catholics in general - especially among those who get involved in these peripheral issues -  of course I am in no way imputing such a lack to yourself. However, if you choose to cut yourself off from both the new and the remnant Church (however feeble), than you better get down on your knees and pray that you can survive without the Sacraments - for they were given to us as life saving gifts by Christ Himself.

I would further suggest that Bishop Pivarunas’s response was not entirely wrong. A study of the Campos document will show you that there is a great deal more study required to fully comprehend the issues involved. And beyond the study of Canon Law (with precedents, etc.), there is a need to know theology which teaches us how to apply the law, as well as history to see in the past how things were applied - to say nothing of the writings of the Church Fathers and Saints. This is a life time study and the average priest who is in the seminary for some 6 years - a little more than the nine months you have devoted to this issue. And this six years but scratches the surface.

For you to make this material available on the internet is for you to have assumed the function of teaching the faithful. Now you do have the right to teach others the Truth in so far as you know it (have received it) such as the catechism, etc., but you do not have the function of teaching the faithful beyond such truths - this is why the Church has always limited the teaching function as such to priests - and under normal circumstances, to priests who are especially qualified in this regard. Your paper is a “thesis,” and not a matter of doctrine. You will have to answer to God for your influencing the souls of others in what may in fact be a false idea which you presume to label “Catholic.”

Finally, to comment on your conclusion. Your advise to others about stop going to epikeian sacraments horrifies me. You will have to answer to God for anyone whose soul is endangered by following your suggestion, just as I have to answer to God for any thing that I as a priest teach or do (which scares the living daylights out of me). Of course I don’t expect you to agree with me on the issues I have raised in my response, and you must follow your own conscience (even if it be badly formed). However, by imposing your conscience on others you violate your role in life. You may argue that you are not imposing your opinion on others, but your seeming scholarship can impress simple souls who may be quite incapable of correctly dealing with the information you offer, and as such you inevitably influence the conscience of others. This is a heavy responsibility. You have every right to study and know Church law, but no right whatsoever to teach your opinion to others. (It is one thing to teach doctrine - catechism - to others, but your opinions, no.)

The second point is well taken, but one does not have to form any organization to pray constantly - we have far to many organizations already. - just pray. Furthermore the idea of “praying unceasingly” is itself something that would require an understanding of mystical theology which I rather doubt you are familiar with. 

As for contacting old priests - this is silly. Wait ten years and they will all be dead. And what of your children? And what of the fact that in accepting any kind of jurisdiction through the present hierarchy, these priests have in reality (though often without realizing it) placed themselves in obedience to the post-Conciliar hierarchy. For them and you to use their jurisdiction then is to place your self in obedience to the new and false Church. Of course, you would have to have an in depth discussion with each and every one of them as to just how they understood their jurisdiction, and if they felt on the death of Pius XII, that jurisdiction was automatically transferred to the post-Conciliar popes. By the time you were through doing all this, Mass would long be over.

Such then is my response to you massive epistle. I admit that I have not read it with a great deal of care, for other more important responsibilities are imposed upon me in this life. However, let me wish you well in the dilemma which you have created for yourself. You can’t go here and you can’t go there - all you can do is stay home and declare that the gates of hell have prevailed. But keep in mind that God has not left us orphans. Ask yourself also if God will condemn us priests for doing the best we can to bring Christ’s charity to the remnant faithful in the present circumstances. We may be a poor lot, and we may make mistakes and lack full understanding of some of the issues. But like yourself, we are trying our best to be true to Christ. I would suggest that you ask “What would Christ have us do in the present circumstances?” The answer to this question should be our fundamental guide in life.

Again, God bless, 

P.S. Despite your introductory paragraph, the availability of your document on the internet and the recommendations of Hutton Gibson’s The War is Now, have placed it in the public domain .I am placing my response on my web page, only because I have inquiries from people as far away as India regarding your thesis. (Coomaraswamy-Catholic-writings.com)

 R Coomaraswamy, 2001