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Supplied Jurisdiction According to Canon 209

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Supplied Jurisdiction According to Canon 209 THE CATHOLIC UNIVERSITY OF AMERICA CANON LAW STUDIES No. 122 SUPPLIED JURISDICTION ACCORDING TO CANON 209 AN HISTORICAL SYNOPSIS AND COMMENTARY A DISSERTATION Submitted to the Faculty of Canon Law of the Catholic Univensity of America in Partial FulfIIIment of the Requirements for the Degree of DOCTOR OF CANON LAW BY FRANCIS SIGISMUND MIASKIEWICZ, J.C.L. Priest of the Archdiocese of Boston THE CATHOLIC UNIVERSITY OF AMERICA PRESS WASHINGTON, D. C. 1940 21 2 NIHIL OBSTAT: CLEMENT V. BASTNAGEL, J.U.D. Censor Deputatus. IMPRIMATUR: ? WILLIAM CARDINAL O’CONNELL Archiepiscopus Bostoniensis. Boston, May 9, 1940 Copyright 1940, by The Catholic University of America Press PRINTED IN THE UNITED STATES OF AMERICA BY THE WATKINS PRINTING CO., BALTIMORE [EXACT COPY ADOBE ACROBAT VERSION, 2004] 3 TO HIS EMINENCE WILLIAM CARDINAL O’CONNELL IN REVERENCE AND GRATITUDE 4 TABLE OF CONTENTS FOREWORD................................ 1 PRELIMINARY NOTIONS ARTICLE I. JURISDICTION ....................... 3 A. Definition ............................ 3 B. Division of Jurisdiction....................13 C. Subjects of Jurisdiction....................18 ARTICLE II. THE SUPPLYING OF JURISDICTION ...........21 HISTORICAL DEVELOPMENT ARTICLE III. THE ROMAN LAW INFLUENCE ............32 ARTICLE IV. THE PRE-GRATIAN DEVELOPMENT .........41 ARTICLE V. THE INFLUENCE OF GRATIAN ............47 ARTICLE VI. THE INFLUENCE OF THE GLOSSATORS .......50 ARTICLE VII. THE SUBSEQUENT DEVELOPMENT UP TO THE CODE ..........................55 A. Application to Both “Fora” .................55 B. Breadth of the Application of the Principle of Juris- diction ..............................57 C. Application to Cases of Delegated Power .........62 D. Common Error .........................67 I. Quality of the error ...................69 II. Place of the error ....................70 III. Subjects of error.....................72 IV. Extent of common error................74 V. The measure of common error............78 E. Necessity of a Title ......................81 F. Probability of Fact and of Law ...............87 I. Probability as a source of jurisdiction........90 II. Supplying in probability of fact or of law ......98 CONCLUSIONS ............................. 104 SUMMARY ............................... 106 21 vi Supplied Jurisdiction According to Canon 209 CANONICAL COMMENTARY INTRODUCTION ARTICLE I. CONDITIONS REQUISITE FOR THE SUPPLYING OF JURISDICTION ..................... 115 A. Common Error ......................... 115 I. Introductory notions .................. 115 1. Error and ignorance................ 115 2. Common....................... 116 II. Traditional interpretation of common error..... 116 III. Interpretative error ................... 121 1. Arguments against the strict interpretation of common error.................... 124 2. Arguments for the interpretative theory..... 127 3. Highlights of the interpretative theory...... 128 IV. Appraisal of the interpretative theory........ 130 I. Textual arguments................. 133 II. Contextual arguments............... 135 a. Difficulties alleged against the traditional Theory...................... 135 b. Context of the Code............... 143 c. Sequels of the interpretative theory...... 148 V. Theory identifying error and ignorance ....... 151 I. Gist of the ignorance theory............ 151 II. Evaluation and criticism of the ignorance theory......................... 152 VI. Conclusion........................ 156 I. General notions................... 157 a. The common good ............... 157 b. Canon 209, a repetition of the old law . 160 c. Canon 209, and epikeia ............ 161 II. Qualifications of common error......... 163 a. Extent of common error............ 163 b. Quality of common error ........... 168 (a) Real..................... 168 (b) Probable................... 169 (c) Explicit or implicit............. 169 Table of Contents vii (d) Actual or virtual.............. 169 (e) Practical or speculative.......... 171 c. Measure of common error.......... 172 d. Place of error .................. 175 e. Subjects of error................ 176 B. Doubt ............................. 176 I. Doubt .......................... 178 II. Positive and probable ................. 182 1. Pre-Code interpretation.............. 184 2. Text of the Code.................. 185 3. Consideration of the context of the Code.... 188 4. Involvement of the common good ........ 191 5. The practice of the Rota.............. 192 6. Conclusion...................... 193 III. Doubt of law and of fact ............... 194 1. Preliminary notions................. 194 a. Scope limited to ecclesiastical laws alone . 194 b. Relation between canon 209 and canon 15 . 194 2. Doubt of law..................... 196 a. Kinds of doubts of law ............. 197 (a) Intrinsic probability ............ 197 (b) Extrinsic probability............ 198 a° Private probability of law...... 199 b° Public probability of law....... 200 b. Examples..................... 202 3. Doubt of fact .................... 210 a. Decisions of the Roman Rota......... 212 b. Examples..................... 217 4. Conclusion...................... 219 ARTICLE II. APPLICATION OF CANON 209............. 221 A. In Reference to the Twofold Forum ............ 221 B. In Reference to Ordinary and Delegated Power .... 223 I. Jurisdictional power.................. 224 1. In positive and probable doubt either of fact or of law........................ 225 2. In common error................... 225 viii Supplied Jurisdiction According to Canon 209 a. Ordinary power................. 225 b. Delegated power................. 230 (a) Universal delegation............ 232 (b) Delegation for one case.......... 235 II. Assistance at marriage................. 239 1. Historical survey................... 239 2. Post-Code interpretation.............. 248 a. Non-jurisdictional character of the act of assistance at a marriage ceremony...... 248 b. Applicability of canon 209 to marriage . 248 c. Extent of application to marriage....... 256 (a) Ordinary assistance............. 256 (b) Delegated assistance............ 258 a° Pre-Code attitude............ 258 b° Attitude of the Code .......... 260 a’ In doubt ............... 260 b’ In common error.......... 261 α Application to universal delegation to assist at mar- riage................ 263 β Application to assist at one marriage.............. 271 III. Non-jurisdictional power................ 279 1. Non-jurisdictional power wielded by one who has an office..................... 280 2. Purely dominative power.............. 282 a. Pre-Code background.............. 283 b. Post-Code doctrine............... 286 c. Conclusion.................... 288 ARTICLE III. LICIT USE OF CANON 209.............. 290 A. Common Error ........................ 291 I. Minister......................... 291 II. The faithful....................... 296 B. Doubt ............................. 298 C. Penal Sanctions ....................... 300 I. Imputability of the censure .............. 302 II. The sanctions...................... 303 Table of Contents ix III. Applicability of canon 209 .............. 303 IV. The necessary jurisdiction.............. 305 V. Presumption....................... 310 CONCLUSIONS ............................. 310 BIBLIOGRAPHY ............................ 313 ABBREVIATIONS............................ 325 BIOGRAPHICAL NOTE ......................... 327 ALPHABETICAL INDEX ........................ 329 CANON LAW STUDIES ........................ 335 x Supplied Jurisdiction According to Canon 209 FOREWORD Canon 209 in the Code of Canon Law constitutes ecclesiastical legislation which contains not only many but also highly impor- tant and far-reaching implications. Perhaps there is no other canon which has been—or which will continue to be—the source of so much concern for priests in the greater or lesser interests they may have as canonists. Certainly there are few, if any canons which have provoked so much argument and contention or have been the subject of so vastly diversified doctrinal inter- pretation. The ultimate reason for this state of affairs is the fact that in canon 209 there is not question of solving one isolated problem. On the contrary, an adequate solution of the problem of the applicability along with the extent of the application of canon 209 presumes necessarily, and depends upon, a previous solution of other problems which are inseparably interwoven in the texture and pattern of this suppletory principle. Since there are so many angles and, above all, so many possibilities of fact to which these angles can apply, it is easily seen that a complete explanation and a definitive solution of the problems offered by canon 209 may rightfully seem to transcend the capacity of any concentrated study upon a subject so thoroughly involved. Despite the numerous intricacies which are latent within canon 209, the writer cherishes a hope that by his analysis of the main lines of historical evidence and by his application of legally acceptable principles in their proper mutual interrelationship, he may, as he presents the variously conceived difficulties, offer a fully workable basis for the correct juridical interpretation of this canon, With such a purpose in view, therefore, this study of canon 209 will be made under the two general headings of its historical analysis and of its doctrinal commentary. The historical treat- ment, premised with the consideration of certain preliminary legal notions, which of necessity enter into the historical discus- sion, will attempt to trace the
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