Post by EricH on Aug 23, 2016 7:53:19 GMT -5
I came across the following passage saying that notorious heretics and schismatics can retain and exercise habitual jurisdiction, both delegated and even ordinary. This was published after the 1870 Vatican Council and after the 1917 Code of Canon Law.
Mahoney, Rev. E.J. Questions and Answers: The Sacraments. London: Burns, Oates, & Washbourne, 1947. pp. 225-27
198. – Jurisdiction of Orthodox Priests
It is well understood that the priests belonging to separated Eastern Churches inasmuch as they are validly ordained, administer valid sacraments. In those sacraments for which no jurisdiction is required this can be readily perceived, but it is difficult to understand how their absolutions can be valid, since, being separated from the unity of the Church, they appear to lack the necessary jurisdiction.
The principle underlying this question is unassailable, namely: “Praeter potestatem ordinis, ad validam peccatorum absolutionem requiritur in ministro potestas jurisdictionis, sive ordinaria sive delegata, in poenitentem.” [Translation: Besides the power of orders, for the valid absolution of sins there is required in the minister the power of jurisdiction, whether ordinary or delegated, over the penitent.] This rule of canon 872 is much more than an ecclesiastical law; it is founded on the nature of the sacrament of Penance which was instituted by Christ in a judicial form. “Quoniam igitur natura et ratio judicii illud exposcit ut sententia in subditos dumtaxat feratur, persuasum semper in Ecclesia Dei fuit, et verissimum esse synodus haec confirmat nullius momenti eam esse debere, quam sacerdos in eum profert, in quem ordinariam aut subdelegatam non habet jurisdictionem.” (Conc. Trid., Sess. XIV, cap. 7.) [Translation: Wherefore, since the nature and order of a judgment require this, that sentence be passed only on those subject (to that judicature), it has ever been firmly held in the Church of God, and this synod ratifies it as a thing most true, that the absolution which a priest pronounces upon one over whom he has not either an ordinary or a delegated jurisdiction ought to be of no weight whatever. (Dogmatic Canons and Decrees, pp. 102-03)] Therefore, if the absolutions in question are valid, and the whole trend of this reply will be to show that they are, their validity is due to the fact that the absolving priest enjoys jurisdiction granted to him, in some way or other, by the Church.
(i) It is granted, to take one well-known instance, “in periculo mortis” to every priest; any priest validly absolves from all sins and censures in the hour of death, not because absolution is valid without jurisdiction in such cases, but because the Church expressly concedes the faculty to those priests who may not habitually possess it.
Further, it has appeared to many that, outside the danger of death, these absolutions are valid, because jurisdiction is supplied by the Church on the ordinary title of “common error” (canon 209). On this hypothesis the Eastern schismatic priest does not habitually enjoy jurisdiction. He possesses it merely “per modum actus” on the occasion of giving absolution, provided that the rather intricate conditions for invoking the title of “common error” are present in each case.
Against this view, which is simple and easy to understand, it must be pointed out, we think, that the title of “common error” is a familiar notion in Western canon law, but we cannot conclude straightway that the title has an equal validity in Oriental canon law. On the contrary, the first canon of the Code expressly excludes the Oriental Church from the provisions of the Code “nisi de iis agatur, quae ex ipsa rei natura etiam Orientalem (Ecclesiam) afficiunt”. [Translation: “unless it treats of things that by their very nature apply also to the Oriental Church.”] Probably this title is as valid in the East as in the West. Probably, too, the terms of the first canon of the Code allow us to conclude that this portion of Western canon law applies also to the East. Even granted that the validity of this title is beyond dispute amongst Oriental Christians, the most it offers is a supplied jurisdiction granted, for grave reasons affecting the common good, to each individual priestly absolution, whenever the requisite canonical conditions are present.
(ii) May we say more than this? May the proposition be defended that the priests of the schismatic Oriental Churches possess true habitual jurisdiction, and that there is, consequently, no need to invoke any fortuitous title of supplied jurisdiction, whether in the hour of death or in “common error”? Many theologians and canonists in the past have been distinctly adverse to any admission of this kind, but the view which predominates nowadays is in favour of upholding the proposition as just stated.
One way of proving its truth is by showing that the priests of the schismatic Oriental Churches are not really excommunicated, since they are not guilty of formal heresy or schism, nor have they sufficient knowledge for incurring censures even if they are formally guilty. This method of demonstration involves us in all the tortuous paths of the treatise on censures, and there is, in addition, the radical objection that we have no right to assume that our laws concerning censures are to be applied to Oriental Christians. (Cf. Echos d'Orient, 1927, pp. 385-390.)
A far better line of argument is to hold, with recent writers, that Oriental schismatic priests enjoy jurisdiction for absolving from sins, because the Church, for the gravest reasons affecting the salvation of souls, has not withdrawn the necessary jurisdiction from them. This seems rather a sweeping statement, at first sight, but it is strongly supported by two arguments which, though indirect, have nevertheless very great force.
The first is drawn from the universal practice observed in reconciling Oriental schismatics to the Church. The rule, very familiar to us in reconciling non-Catholics, requires a general confession from the newly reconciled person, the reason being that every post-baptismal sin must be absolved by direct absolution. Now, it is not the practice of the Church to demand a general confession from these schismatics when they are reconciled, the inference being that their previous confessions were valid.
The second argument is concerned with the Oriental practice of priests administering the sacrament of Confirmation immediately after Baptism. The Church rarely re-confirms converts from schismatic bodies who have already been confirmed in infancy. There is required, indeed, a special act of the sovereign Pontiff to enable a simple priest to act as the extraordinary minister of this sacrament; or, at least, it is essential that the powers used by Oriental priests from time immemorial have not been expressly withdrawn. The point is elucidated in a rescript from the Holy Office, 5 July, 1853: “Non expedire quod confirmati a sacerdotibus schismaticis denuo liniantur post reditum ad unitatem; et ad mentem: La mente è che nei casi particolari s'informi il Vescovo de luogo preciso ove I convertiti furono cresimati. Che se fosse in Bulgaria od in Cipro . . . o in altro luogo ove espressamente sia revocata tal facoltà, debba riconfermarli absolute. Se in Valachia . . . o in altri luoghi in cui non fu espressamente rivocata, acquiescat.” (Fontes, n. 924.) [Translation: It is not expedient that those confirmed by schismatic priests be anointed again after they have returned to unity; to wit: The opinion is that in particular cases the Bishop should inform himself of the precise location at which the converts were confirmed. If it was in Bulgaria or in Cyprus . . . or in another place where that faculty has been expressly revoked, they must be reconfirmed absolutely. If in Valachia . . . or in another place in which it was not expressly revoked, he may rest satisfied.] Thus the Church considers schismatical confirmation by a simple priest to be valid in those places where his powers have not been withdrawn. The argument is that if the Church has not withdrawn from schismatical priests their power to confirm, it follows that their power to grant absolution has not been withdrawn either; for the latter is more necessary for souls than the former. (l'Ami du Clergé, 1927, p. 569.)
These schismatical priests accordingly draw their jurisdiction from the Church, through their bishops and patriarchs, exactly as they did before the schism. The Church has not wished to deprive them of jurisdiction for the greater good of souls, and one can discover no act on the part of the authority of the Church which can be interpreted as a deprivation of those powers. There is no real objection to this doctrine in the fact that Catholics are forbidden to receive absolution from schismatical priests; it is forbidden because it is an act of communicatio in sacris with schismatics, not because the absolution would be invalid.
To sum up what has been said: it seems better to hold that Oriental schismatics retain their jurisdiction, because the Church has never expressly withdrawn it, rather than to rely on a title of “common error”. This is the conclusion of so well known an authority as Maroto: “Tandem, certum est, uti jam ab antiquo in S. Officio receptum fuit, quod schismatici Orientales, qui pariter ut scimus, non ex uno tantum capite haeretici sunt et quidem notorii, retinent veram jurisdictionem ita ut valide sacerdotes a competentibus superioribus approbati, absolvant, valide parochi et Ordinarii adsistant matrimoniis et ita porro. Haec, si subtiliores explicationes quae necessariae certe non videntur, excludamus, suadent non jure divino, sed humano a quo in quibusdam casibus propter bonum publicum prudenter dispensentur, haereticos et schismaticos etiam notorios, jurisdictionem sive delegatam sive etiam ordinariam retinere et exercere posse.” (Institutiones Iuris Canonici, I, § 576, p. 671.) [Translation: Finally, it is certain, as from antiquity it was received by the Holy Office, that Oriental schismatics, who, as we know, are heretics, and indeed notorious [heretics], not merely on one point, retain true jurisdiction such that priests approved by competent superiors validly absolve, that parish priests and Ordinaries validly assist at matrimony and so forth. These things, if we leave aside more subtle explanations that certainly appear unnecessary, persuade us that not by divine law, but human [law] by which in such cases they are prudently provided on account of the public good, heretics and schismatics, even those who are notorious, can retain and exercise jurisdiction, either delegated or even ordinary.] In addition to the references given cf. Irénikon, 1928, p. 142; Souarn, Memento de Théologie Morale, p. 134; N.K.S., 1927, p. 354, analysed in Jus Pontificium, 1929, p. 232.
198. – Jurisdiction of Orthodox Priests
It is well understood that the priests belonging to separated Eastern Churches inasmuch as they are validly ordained, administer valid sacraments. In those sacraments for which no jurisdiction is required this can be readily perceived, but it is difficult to understand how their absolutions can be valid, since, being separated from the unity of the Church, they appear to lack the necessary jurisdiction.
The principle underlying this question is unassailable, namely: “Praeter potestatem ordinis, ad validam peccatorum absolutionem requiritur in ministro potestas jurisdictionis, sive ordinaria sive delegata, in poenitentem.” [Translation: Besides the power of orders, for the valid absolution of sins there is required in the minister the power of jurisdiction, whether ordinary or delegated, over the penitent.] This rule of canon 872 is much more than an ecclesiastical law; it is founded on the nature of the sacrament of Penance which was instituted by Christ in a judicial form. “Quoniam igitur natura et ratio judicii illud exposcit ut sententia in subditos dumtaxat feratur, persuasum semper in Ecclesia Dei fuit, et verissimum esse synodus haec confirmat nullius momenti eam esse debere, quam sacerdos in eum profert, in quem ordinariam aut subdelegatam non habet jurisdictionem.” (Conc. Trid., Sess. XIV, cap. 7.) [Translation: Wherefore, since the nature and order of a judgment require this, that sentence be passed only on those subject (to that judicature), it has ever been firmly held in the Church of God, and this synod ratifies it as a thing most true, that the absolution which a priest pronounces upon one over whom he has not either an ordinary or a delegated jurisdiction ought to be of no weight whatever. (Dogmatic Canons and Decrees, pp. 102-03)] Therefore, if the absolutions in question are valid, and the whole trend of this reply will be to show that they are, their validity is due to the fact that the absolving priest enjoys jurisdiction granted to him, in some way or other, by the Church.
(i) It is granted, to take one well-known instance, “in periculo mortis” to every priest; any priest validly absolves from all sins and censures in the hour of death, not because absolution is valid without jurisdiction in such cases, but because the Church expressly concedes the faculty to those priests who may not habitually possess it.
Further, it has appeared to many that, outside the danger of death, these absolutions are valid, because jurisdiction is supplied by the Church on the ordinary title of “common error” (canon 209). On this hypothesis the Eastern schismatic priest does not habitually enjoy jurisdiction. He possesses it merely “per modum actus” on the occasion of giving absolution, provided that the rather intricate conditions for invoking the title of “common error” are present in each case.
Against this view, which is simple and easy to understand, it must be pointed out, we think, that the title of “common error” is a familiar notion in Western canon law, but we cannot conclude straightway that the title has an equal validity in Oriental canon law. On the contrary, the first canon of the Code expressly excludes the Oriental Church from the provisions of the Code “nisi de iis agatur, quae ex ipsa rei natura etiam Orientalem (Ecclesiam) afficiunt”. [Translation: “unless it treats of things that by their very nature apply also to the Oriental Church.”] Probably this title is as valid in the East as in the West. Probably, too, the terms of the first canon of the Code allow us to conclude that this portion of Western canon law applies also to the East. Even granted that the validity of this title is beyond dispute amongst Oriental Christians, the most it offers is a supplied jurisdiction granted, for grave reasons affecting the common good, to each individual priestly absolution, whenever the requisite canonical conditions are present.
(ii) May we say more than this? May the proposition be defended that the priests of the schismatic Oriental Churches possess true habitual jurisdiction, and that there is, consequently, no need to invoke any fortuitous title of supplied jurisdiction, whether in the hour of death or in “common error”? Many theologians and canonists in the past have been distinctly adverse to any admission of this kind, but the view which predominates nowadays is in favour of upholding the proposition as just stated.
One way of proving its truth is by showing that the priests of the schismatic Oriental Churches are not really excommunicated, since they are not guilty of formal heresy or schism, nor have they sufficient knowledge for incurring censures even if they are formally guilty. This method of demonstration involves us in all the tortuous paths of the treatise on censures, and there is, in addition, the radical objection that we have no right to assume that our laws concerning censures are to be applied to Oriental Christians. (Cf. Echos d'Orient, 1927, pp. 385-390.)
A far better line of argument is to hold, with recent writers, that Oriental schismatic priests enjoy jurisdiction for absolving from sins, because the Church, for the gravest reasons affecting the salvation of souls, has not withdrawn the necessary jurisdiction from them. This seems rather a sweeping statement, at first sight, but it is strongly supported by two arguments which, though indirect, have nevertheless very great force.
The first is drawn from the universal practice observed in reconciling Oriental schismatics to the Church. The rule, very familiar to us in reconciling non-Catholics, requires a general confession from the newly reconciled person, the reason being that every post-baptismal sin must be absolved by direct absolution. Now, it is not the practice of the Church to demand a general confession from these schismatics when they are reconciled, the inference being that their previous confessions were valid.
The second argument is concerned with the Oriental practice of priests administering the sacrament of Confirmation immediately after Baptism. The Church rarely re-confirms converts from schismatic bodies who have already been confirmed in infancy. There is required, indeed, a special act of the sovereign Pontiff to enable a simple priest to act as the extraordinary minister of this sacrament; or, at least, it is essential that the powers used by Oriental priests from time immemorial have not been expressly withdrawn. The point is elucidated in a rescript from the Holy Office, 5 July, 1853: “Non expedire quod confirmati a sacerdotibus schismaticis denuo liniantur post reditum ad unitatem; et ad mentem: La mente è che nei casi particolari s'informi il Vescovo de luogo preciso ove I convertiti furono cresimati. Che se fosse in Bulgaria od in Cipro . . . o in altro luogo ove espressamente sia revocata tal facoltà, debba riconfermarli absolute. Se in Valachia . . . o in altri luoghi in cui non fu espressamente rivocata, acquiescat.” (Fontes, n. 924.) [Translation: It is not expedient that those confirmed by schismatic priests be anointed again after they have returned to unity; to wit: The opinion is that in particular cases the Bishop should inform himself of the precise location at which the converts were confirmed. If it was in Bulgaria or in Cyprus . . . or in another place where that faculty has been expressly revoked, they must be reconfirmed absolutely. If in Valachia . . . or in another place in which it was not expressly revoked, he may rest satisfied.] Thus the Church considers schismatical confirmation by a simple priest to be valid in those places where his powers have not been withdrawn. The argument is that if the Church has not withdrawn from schismatical priests their power to confirm, it follows that their power to grant absolution has not been withdrawn either; for the latter is more necessary for souls than the former. (l'Ami du Clergé, 1927, p. 569.)
These schismatical priests accordingly draw their jurisdiction from the Church, through their bishops and patriarchs, exactly as they did before the schism. The Church has not wished to deprive them of jurisdiction for the greater good of souls, and one can discover no act on the part of the authority of the Church which can be interpreted as a deprivation of those powers. There is no real objection to this doctrine in the fact that Catholics are forbidden to receive absolution from schismatical priests; it is forbidden because it is an act of communicatio in sacris with schismatics, not because the absolution would be invalid.
To sum up what has been said: it seems better to hold that Oriental schismatics retain their jurisdiction, because the Church has never expressly withdrawn it, rather than to rely on a title of “common error”. This is the conclusion of so well known an authority as Maroto: “Tandem, certum est, uti jam ab antiquo in S. Officio receptum fuit, quod schismatici Orientales, qui pariter ut scimus, non ex uno tantum capite haeretici sunt et quidem notorii, retinent veram jurisdictionem ita ut valide sacerdotes a competentibus superioribus approbati, absolvant, valide parochi et Ordinarii adsistant matrimoniis et ita porro. Haec, si subtiliores explicationes quae necessariae certe non videntur, excludamus, suadent non jure divino, sed humano a quo in quibusdam casibus propter bonum publicum prudenter dispensentur, haereticos et schismaticos etiam notorios, jurisdictionem sive delegatam sive etiam ordinariam retinere et exercere posse.” (Institutiones Iuris Canonici, I, § 576, p. 671.) [Translation: Finally, it is certain, as from antiquity it was received by the Holy Office, that Oriental schismatics, who, as we know, are heretics, and indeed notorious [heretics], not merely on one point, retain true jurisdiction such that priests approved by competent superiors validly absolve, that parish priests and Ordinaries validly assist at matrimony and so forth. These things, if we leave aside more subtle explanations that certainly appear unnecessary, persuade us that not by divine law, but human [law] by which in such cases they are prudently provided on account of the public good, heretics and schismatics, even those who are notorious, can retain and exercise jurisdiction, either delegated or even ordinary.] In addition to the references given cf. Irénikon, 1928, p. 142; Souarn, Memento de Théologie Morale, p. 134; N.K.S., 1927, p. 354, analysed in Jus Pontificium, 1929, p. 232.