Scholion. On Supplied Jurisdiction

Jurisdiction can be conceded in an ordinary way, for example by conferring an office to which jurisdiction is annexed, or by express delegation, and in an extraordinary way, namely by supplying deficient jurisdiction, as it is called. Concerning this supplied jurisdiction, the following things are to be noted.

I. Notion. The Church is said to supply jurisdiction when, in the very exercise of the act, it confers jurisdiction in a transitory way. This can indeed be done absolutely or hypothetically, according as jurisdiction is certainly or only probably lacking.

II. When is jurisdiction supplied? Canon 209 establishes: In common error or in positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and internal forum. Therefore jurisdiction is supplied:

1. In common error, namely when a sufficiently large part of the community thinks that the required power belongs to someone, although in fact it does not belong to him. It is said:

a) A sufficiently large part. Moreover, it suffices that morally all members of the community err. Likewise, it is enough that the greater part be in error, both because then the error can in some way be called common, and because the common good, which the Church intends to provide for, seems entirely to require this. It probably suffices that many err, many, I say, whether absolutely, as 200, or relatively to the community; likewise it is probably enough that the foundation of common error has been posited, as if the name of a priest lacking jurisdiction has been affixed to a confessional. The reason is sought from this: otherwise it would often be difficult to determine whether or not common error was present. I have said "probably suffices," because with respect to the later cases there are reasons for doubting,¹ both because formerly the notion of common error was not applied sufficiently commonly to the said cases, and because such error is in reality not yet common.

b) Of the community, namely "of a people, neighborhood, parish, college, community, etc., provided that in such a community there are not fewer than ten people.... The reason is that ten constitute a people."²

c) They think. Doubt properly so called does not suffice, but at least that state of mind is required which is called opinion.³

When common error stands, supplied jurisdiction extends itself also to those members of the community who are not occupied by the error.

2. In positive and probable doubt, whether of law or of fact. It is said:

a) In positive and probable doubt, that is, as these words seem to be taken here, when for the existence of jurisdiction there are relatively grave reasons, or a relatively grave reason.

b) Whether of law or of fact. Doubt of law is had if, after considering law or custom, it is positively probable that jurisdiction is present. Doubt of fact is had if it is positively probable either that the private fact of concession of jurisdiction has taken place, or that jurisdiction privately conceded has not yet expired.

Corollary. In the case in which the required common error is only probably present, the Church also supplies only probably.⁴ Nor should you say that in the case jurisdiction is probable, and therefore by force of can. 209 is certainly supplied. For the words "the Church supplies jurisdiction in positive and probable doubt whether of law or of fact" signify, in their obvious sense, that the Church supplies jurisdiction if it probably exists independently of the Church supplying; but they do not involve this: that the Church supplies jurisdiction in positive and probable doubt concerning jurisdiction supplied by it, that is, by the Church.

¹ Others do not doubt: Vermeersch, Theologia Moralis Principia, III, 459; Jombart and Guns in Nouvelle Revue Theologique, 1923, pp. 173, 539 sq.; Aertnys-Damen, II, 359; Schaepman, Nederlandsche Katholieke Stemmen, 1928, p. 44.

² Reiffenstuel, Ius Canonicum Universum, V, I, 249.

³ Doubt properly so called is the state of a mind fluctuating between two parts of a contradiction. It is distinguished into positive and negative, according as someone doubts on account of equal or nearly equal motives, or on account of no motives or slight motives on each side. Where one side is held as more probable than the other, there is not doubt properly so called, but opinion, which is the state of a mind adhering to something knowable with prudent fear of erring.

⁴ Otherwise Jombart, Nouvelle Revue Theologique, 1923, p. 176.

III. Use of supplied jurisdiction. Having considered the greater kindness of the Church with respect to this matter,¹ it must be said as follows:

1. In the case of common error, a grave cause is required in order that it be permitted to use supplied jurisdiction. The reason is that the Church, in the case in which jurisdiction is certainly lacking, is of itself greatly opposed to conceding it in a way abnormal in itself; hence one should not have recourse to it without a grave cause. With these things considered, the following sin gravely: 1. a priest about to hear confessions who omits the petition for jurisdiction, relying on jurisdiction to be supplied by the Church on account of common error; 2. one who, even if the occasion of petitioning jurisdiction in time is lacking, has recourse to the concession of supplied jurisdiction without a grave cause. Nevertheless, great utility of the people constitutes a grave cause.

One who proceeds without a legitimate cause, although he receives jurisdiction, does not incur the suspension of can. 2366 issued against one who, without necessary jurisdiction, has presumed to hear sacramental confessions.

2. In positive and probable doubt, the use of supplied jurisdiction seems lawful for any just cause. For in the case in which jurisdiction is already probably present, the Church is not so gravely opposed to conceding it in a way abnormal in itself; there is question only of a concession for caution, as it is called. Such a case would be if the petition of the concession were not without some difficulty, or would later have place more conveniently (cf. St. Alphonsus, VI, 573).

¹ Before the Code, the Church more probably did not supply in common error unless a colored title was present; likewise it was doubtful whether the Church supplied in doubt whether of law or of fact.