Question III: Whether the acts of a judge who has not a true but only a putative title are valid, so that not even he sins

The FIRST opinion teaches that the acts and deeds done by such a Judge or Parish priest are invalid.

The COMMON, however, and true opinion is that they are valid. So Lessius Tom. 1. lib. 2. cap. 29. dub. 8. num. 65., Filliucius Tomo 2. tract. 40. cap. 6. num. 162., Sanchez Lib. 3. de matrim. disp. 22. num. 5., Tanner disp. 4. quaest. 4. num. 21., Fagundez on the eighth precept of the decal. Lib. 8. cap. 19. num. 5. and 8., where he cites others, and so it was decided in both laws.

As regards D. Bonaventure, I think he stands for this opinion, for in 4. dist. 17. part. 3. dub. 4., assigning the cases in which confession must be repeated, he lays down four. The first is, when the case is reserved and must be remitted to the superior having jurisdiction; and he seems to intimate that this happens only when an inferior, knowing, absolves, since he is bound to remit to the superior.

From which it is deduced that one going in good faith, and confessing a reserved sin only to him who thinks he has jurisdiction, and therefore is not bound to remit to the superior, is validly absolved. That the Seraphic Doctor thus thought is evident from disp. 19. art. 3. quaest. 1., which he proves on foundation 2, and 9. quaest. 2., where the nullity of the deeds is declared only against that case.

It is PROVED first from the Leg. Barbarius, ff. de officio Praetoris, where the case occurred that this Barbarius, a slave elsewhere, was assumed to the Praetorship at Rome, although slaves were incapable of this by reason of their servitude; and nevertheless his acts were ratified by the Roman senate, lest confusions arise; and the same case is defined in general, because it can be removed by that Prince who laid down the incapacity.

The same is had in the Roman Synod, 3. quaest. 7. cap. 1., and it is reported in the chapter infamis, V. verumtamen 3. quaest. 7., there: If a slave, while he was thought free, gave sentence by delegation; although he was afterwards forced back into servitude, the sentence pronounced by him holds the firmness of a res judicata.

The REASON is, because otherwise innumerable confusions would arise in the Republic, if all decrees and all decisions etc. were to be rescinded.

Therefore it is certain from the common doctrine that one elected invalidly, but continuously tolerated, provided nothing required by divine law be lacking, and provided there be in those electing at least a colorable title, can validly exercise various acts of Jurisdiction. I said: provided nothing be lacking from divine law, etc., because if anyone be elected as Confessor who is not a Priest, his jurisdiction is null. So P. Eliseus tract. 10. quaest. 22. num. 15.

The same thinks Lessius, when even the people doubt about the revocation of the power, because the condition of the possessor is better; likewise Diana with others, part. 2. tract. 16. resol. 45., and part. 5. tract. 4., affirm that the acts of a Judge having power only in the estimation of the people still hold; which the same Lessius and Suarez say, 3. part. tom. 4. disp. 26. sect. 6. num. 7., of a judge whose Jurisdiction attaches only to a probable opinion, although such an opinion be in itself false; for the contrary opinion, however, more fight.

From these another question is almost defined: What is to be said of a Judge delegated only to one cause or another, and deciding everything. That such acts indeed do not hold, Innocent teaches, the chapter cum dilecta, num. 10. de rescript.; Ioannes Andreas there, num. 14.; Abb. num. 10.; Guido Pap. decis. 322.; Alex. cons. 77. num. 7. lib. 2.

The opposite opinion, however, is that of Sanchez Tom. 1. Lib. 3. de matrim. disp. 22. num. 16., Anton. the chapter cum dilecta, de rescript. num. 15., Abb. there, number 10., Imola num. 11., Filliucius num. 3., saying that it is the opinion of all. Decius on the chapter sciscitatus, de rescript. num. 38., Bartol. on the Leg. Barbarius, ff. de offic. Praetor. in the second reading, num. 13. and 18., Paludanus 4. dist. 17. quaest. 6. art. 1., Henriquez lib. 5. de poenitent. cap. 14., Fagundez on the eighth Precept, Lib. 8. cap. 19., and others cited by Sanchez.

It is proved from the said chapter infamis, where there is openly talk of a delegated Judge, and yet his sentence is sustained on account of the common error and utility, when he was not the true Judge.

It is proved secondly from the Law 1. Cod. de sentent. et interlocut., there: If an arbiter given by the magistrates, after he pronounced sentence, was in servitude. Thus the Gloss also expounds it, V. si arbiter.

Thirdly, because if a slave, who cannot be a witness, be employed in a testament, it is valid, as is evident from the Law 1. Cod. de testamento.

You will say. In an ordinary judge there concurs a common utility, not so in one delegated to one cause.

It is answered, that here too a common utility intervenes by reason of the office; for when a judge delegates to this one one cause, he constitutes him in a public office, Leg. 3. ff. de iurisdictione omnium iudicum. But the same thing proportionally in the case of the ordinary and the delegated [judge] the S. Doctor judges, 4. dist. 17. part. 3. quaest. 2.