129. Jurisdiction of the Confessor

1. "Laelius, a vicar, notices on Holy Saturday that the time for which he had been approved has elapsed. Therefore he sends a messenger to the vicar general, to whom he was very well known and familiar, for the sake of asking an extension of the approval. But, being persuaded that the grace asked would certainly be granted to him, as in fact it was granted, he receives confessions several hours before the return of the messenger.

It is asked: Whether Laelius acted validly and licitly?

R. Laelius indeed validly absolved, although destitute of jurisdiction, common error standing; but he sinned gravely by hearing confessions without the due faculty, and by compelling the Church to supply, because it is not licit to absolve from merely presumed jurisdiction. Besides, it could happen that the superior, for some unknown cause, was going to deny the faculty asked, or that he was absent, etc." Thus Fr. Gury 548.

Speaking practically, it is indeed not licit to absolve from merely presumed jurisdiction, because the sacrament is exposed to the danger of nullity if in reality jurisdiction is not granted for any cause whatever. But if, as in the Case, jurisdiction is truly granted, and was granted when someone begins to hear confessions, is the absolution given with such jurisdiction, reasonably presumed, invalid? Presumed, namely, concerning the present, and not concerning the future, or interpretatively, with the truth on the part of the thing corresponding to the presumption. Moreover the absolution seems valid; for although certain knowledge a posteriori of the granted jurisdiction is not yet had, jurisdiction is nevertheless had, since, absolutely speaking, for having jurisdiction knowledge of it is not required, since its whole effect depends on the will of the superior constituting subjects. And thus, although a simple confessor believes that he lacks jurisdiction even in the article of death, yet if, when the case occurs, he truly wishes to absolve, he validly absolves. Likewise, "if the parish priest, Sempronius asking, allows an outside priest to be present at a marriage, and he, ignorant both of the petition and of the concession, assists, one must stand for the value of the act." D'Annib., p. 1, n. 225; Laymann, De Legib., c. 23, n. 10; I. M. vol. 1, n. 249; vol. 2, n. 760.

Cardinal De Lugo, treating the question of presumed jurisdiction, d. 19, n. 23, says: "If the presumed will is a will indeed existing in the superior, but not sufficiently explained, a distinction must be made. For if it is merely internal, and disclosed by no external sign, it effects nothing; both because jurisdiction is not given in a human way except by human signs, and also because this sacrament must be a sensible sign, in which, just as the form must be sensible, so also must the power of the minister be. But it is not sensible if it is founded only on the internal will of the superior, manifested by no sensible sign. But if that presumed will is manifested by some external sign, although not altogether explicit, then it will suffice for the value of absolution. But what those signs ought to be depends on the circumstances and the judgment of a prudent man. Suarez adds, d. 26, s. 1, n. 17, that even if such signs make a probable estimation concerning the present consent of the one delegating, such jurisdiction is not to be used unless there is no opportunity of knowing the will of the superior more clearly and expressly, and from another source there is sufficient cause for administering the sacrament. Yet this is opposed to the common opinion, which Suarez himself defends, d. 26, s. 6, that it is licit to administer this sacrament with probable jurisdiction and power." The signs, not altogether explicit, of which Lugo and Suarez treat, are present signs and manifest actually to the confessor. Wherefore in reality there does not seem to be question of jurisdiction sought by letter. But since that knowledge of the jurisdiction granted is not necessary at most except for the acceptance of the same jurisdiction, and the acceptance is sufficiently understood through the very petition and letter sent by the confessor, it does not seem that for this reason the act is to be held invalid.

Indeed Gousset 478 says: "To absolve validly, it is not enough to be sure that the bishop would give faculties if he were asked; for it is one thing that a bishop would grant, another thing that he actually grants, jurisdiction. A simple presumption does not suffice; but if there is reason to believe that the bishop actually grants faculties for this or that present circumstance, the absolution is valid."

And the same seems to be said if there is question not of jurisdiction sought by letter, but of jurisdiction sought through a messenger. And thus Schmalzgrueber, l. 4, tit. 3, n. 206, says: "A marriage celebrated before a priest of this sort is valid, even if he does not yet know that permission has been granted to him, but gathers this only from conjecture of the time. The reason is that then the permission given is considered accepted by this very fact, that he to whom it was given, or another in his name and with his knowledge, sought it. From this it follows that a marriage is validly celebrated before a priest at that time in which the messenger, bearing the letters of concession of the permission sought by him, is still on the way, even though the priest himself is ignorant that it has been granted to him. I said, validly celebrated; for before knowledge of the permission granted to him, he will illicitly assist at the marriage, because by thus assisting he exposes the sacrament of marriage, contracted before him, to the danger of nullity."

And the same is to be said much more if jurisdiction is sought not through a simple messenger, but through a procurator, and he has not yet returned and communicated the knowledge to the mandator. The reason is that, since the procurator bears the person of the mandator, the matter is the same as if it had been transacted among those present. D'Annib., p. 1, n. 224; Sanchez, l. 3, d. 36, n. 6, 8; Reiffenstuel, l. 5, t. 33, n. 41 seqq.; Tamburini, tr. De Casib. reserv., c. 9, § 1, n. 10, 21; Bertagna, De Casuum reservat., p. 153 seqq.

2. "Casimirus the confessor, while he is earnestly occupied in receiving confessions, began to doubt whether the time of jurisdiction granted to him had already expired or not. But he cannot resolve the doubt, because he has lost the episcopal letters. Nevertheless, without doubt he continues to hear confessions and absolve, relying on this principle: In doubtful or probable jurisdiction, the Church certainly supplies. But afterward, moved by scruple, he resolved to abstain from confessions until he should obtain renewal of the faculty. Meanwhile, however, being earnestly asked, he still absolves several penitents, namely a parish priest about to celebrate on a feast day and agitated by anxiety; a woman laboring in difficult childbirth and abhorring the parish priest; a man whose confession he had already begun, and who could not persevere longer in the state of mortal sin without the greatest trouble; and others like these.

It is asked: What is to be said about the manner of acting of Casimirus?

R. Casimirus acted badly in the first Case by absolving with jurisdiction doubtfully present practically or negatively, when no necessity or grave cause was urging. For it is not true that the Church certainly supplies in doubtful jurisdiction, grave cause being excluded, since this is commonly denied by theologians. Nevertheless he validly absolved, because in such a Case the Church supplies jurisdiction at least on account of common error. He could also licitly absolve if, with conscience formed, he probably thought that he was not destitute of jurisdiction. But he acted validly and licitly by absolving in the later Cases, because a grave cause of absolving was urging, and therefore the Church was deservedly considered to supply jurisdiction. Thus St. Liguori teaches, 573." Thus Fr. Gury 550.

In the first Case Fr. Gury seems implicitly to assert that the Church probably supplies jurisdiction when jurisdiction is negatively doubtful; but that it certainly supplies when jurisdiction is positively doubtful; and he openly asserts that it supplies it in the later cases of necessity, when jurisdiction is doubtful, concluding that St. Alphonsus 573 so teaches. But in this place the holy Doctor does not speak of jurisdiction truly doubtful, but probable, which is quite different. The Church indeed supplies jurisdiction in a twofold case: 1.º when common error underlies, on account of the common good, Lig. 572; 2.º when a probable opinion underlies in a doubt of law, on account of the same common good, Lig. 573; Suarez d. 26, s. 6, n. 7; Lugo d. 19, n. 29; not likewise in a doubt of fact, for example, if one to whom it was entrusted at the choice of the will of the person himself, or for a certain time, doubts lest perhaps the one who entrusted it has died, or lest the definite time has passed. Yet it is licit also in this negative doubt of fact to give absolution if "by absolution being denied notable detriment would threaten the soul of the penitent," Lig. 431, or if the doubt arises "after the penitent has begun to confess his sins, because to him the right of obtaining absolution has already been acquired." D'Annib. 321. But in each Case the absolution must be given under condition, because of reverence for the sacrament; and the penitent, if he confessed mortal sins, should be warned about it, so that, if afterward perhaps it becomes known that the confessor really lacked jurisdiction, the penitent may again confess those sins as he ought, and duly provide for his salvation. Lig. 432, 571.

But if there is question of a doubt of fact and of a negative doubt, Busembaum in St. Alphonsus, and St. Alphonsus, n. 571, openly admit the doctrine set forth above in the preceding paragraph. But if again there is question of a doubt of fact and of a positive doubt, Busembaum in St. Alphonsus, n. 571, holds that in that case the Church supplies jurisdiction. "But if," he says, "from a probable reason he resolves the doubt, namely that he has jurisdiction, although with fear of the opposite, he absolves absolutely and licitly; both because then he is practically and morally certain, and because in that case the Pope gives faculty." St. Alphonsus himself seems implicitly to hold the same in the cited n. 571, and seems openly to hand on the same in n. 573, but with the limitation of necessity or utility. There the holy Doctor indeed treats the general question: "Whether it is licit to administer the sacrament of penance with only probable jurisdiction." He brings forward various opinions, and then himself embraces the opinion which says that "it is indeed licit to minister this sacrament of penance with probable jurisdiction, but only when there is present a grave cause of necessity, or of great utility, or a reasonable cause." But although the holy Doctor speaks thus generally about probable jurisdiction, nevertheless he seems to have had in mind rather probability of fact than of law, from the examples then brought forward. For immediately he adds: "A cause of this sort occurs: 1.º when the penitent needs the help or counsel of that confessor. 2.º If the accomplice of the sin of the penitent is known to the confessor who possesses certain jurisdiction, and unknown to the confessor having only probable jurisdiction. 3.º If the confessor who has probable jurisdiction prudently fears that the penitent will not make an integral confession before him who has certain jurisdiction. 4.º Sporer adds: lest the penitent fall into some aversion or harmful suspicion toward the certain confessor. 5.º If the precept of confession is urging, or some singular indulgence is to be gained, or because someone will not be able to confess for a long time."

D'Annibale, p. 1, n. 80, speaking generally about jurisdiction, says: "It is supplied in a doubtful matter, provided the doubt is not merely negative, but positive and truly probable. Not negative, for example, if I doubt, still more if I am ignorant, whether jurisdiction has been entrusted to me; but positive, or of law, suppose whether the Church supplies jurisdiction with common error alone...; or of fact, otherwise than I once thought, as if jurisdiction was entrusted to me for a certain time... whether the time has passed. The reason is that thus it has been introduced by custom, and that jurisdiction can be acquired by custom is of settled law." But, notwithstanding the asserted custom, concerning which there is no certainty, D'Annibale himself excludes doubt of fact on the same p. 1, n. 342; and p. 3, n. 321, published however after the death of the eminent Cardinal, absolutely affirms that the Church supplies jurisdiction when there is a probable opinion in a doubt of law, but by no means in a doubt of fact. And indeed, as Suarez argues, d. 26, s. 1, n. 7, in a doubt of law, or of a common question of law, "the ignorance which arises from the probable opinion of doctors is common and public, and could harm the common people if in the matter itself ministers lacked jurisdiction. And therefore it is not licit to argue to private ignorances or errors which can intervene in particular facts, because it does not pertain to good governance that provision be made for all these, which could not be done without other greater inconveniences; but to provide for common and public necessity is very fitting and necessary." I. M. 770, 771.

3. Leonardus, a priest approved in the diocese, absolved many penitents, even at Easter time, against the will of the parish priests. He also continues to do this after the bishop prohibited the faithful, at Easter time, from confessing to anyone outside the parish without permission of the parish priest.

It is asked: Whether Leonardus absolved validly against the will of the parish priests? Whether against the will of the bishop of the diocese?

R. "1.º Leonardus validly absolved, against the will of the parish priests, even at Easter time, because, from the common interpretation, one's own priest to whom the faithful must confess once in the year is understood to be any approved priest. 2.º He could not validly absolve at Easter time if the bishop decreed that parishioners should confess to parish priests alone, because the bishop can validly restrict jurisdiction." Thus Gury 540. But a statute of this sort would first be contrary to common practice and custom. Besides, it has already been prohibited by several Decrees of the Sacred Congregations, and by them it has been declared that it cannot be tolerated. Cf. Enchir. Mor., 3rd ed., n. 778, 782.

"The Holy See has always held the maxim that the liberty of Christians must not be bound in any way in so delicate a matter as sacramental confession, and it has always willed that it be licit for each one to manifest his faults to that one among the approved sacred ministers who was more pleasing to him. Nor has it equally ever prohibited an approved confessor from hearing in his own church the confession of any Catholic whatsoever who presented himself at the sacred tribunal. Thus it is not prohibited for Christians of one diocese to pass into another in order to confess there. Moreover, although for the fulfillment of the Easter precept every Christian must make his Communion in his own parish, nevertheless he has no obligation of confessing on such an occasion to his own parish priest. This has always been, and is, the maxim, the practice held by the Holy See. Nor has any distinction of rite ever been made, since the administration of such a sacrament brings with it no change of rite; indeed the same Holy See, whenever any doubt has been raised on such a particular point, has declared that no limitation of this kind ought to be made in such a matter. Hence in 1626, on June 5, it severely forbade certain Latin bishops to prevent their subjects from confessing to Ruthenian priests and vice versa." S. C. de P. F., June 2, 1835, Collectan. n. 929, 932.

Finally, as is drawn from the Declaration of the Sacred Congregation, April 5, 1584, and from the Constitution Superna of Clement X, §§ 4, 5, that restriction of jurisdiction of all confessors, even those already indefinitely approved after previous examination, for Easter time would be invalid, and therefore they would absolve validly. Cf. Enchir. Moral. 782; I. M. 776-778.

4. "Antoninus, a parish priest, is accustomed once a year, Hydulphus his vicar accompanying him, to go with not a few parishioners on a pious pilgrimage beyond the borders of the diocese. When they had arrived at the pious sanctuary, both he himself and his assistant earnestly devote themselves to hearing the confessions of their own. They also receive and absolve some other pilgrims approaching their tribunal.

It is asked: 1.º Whether Antoninus, the parish priest, validly absolved his parishioners outside the parish, or even outside the diocese? - 2.º Whether his vicar absolved his own penitents? - 3.º Whether each absolved other outsiders?

R. 1.º Antoninus, the parish priest, validly absolved his parishioners outside the parish and even outside the diocese, without delegation of the bishop of the place, because the parish priest enjoys ordinary jurisdiction, and therefore personal jurisdiction over his own subjects, and can absolve them in every place.

2.º Hydulphus, the vicar, could not absolve his own penitents, as being destitute of due approval or of personal jurisdiction. For the jurisdiction of a vicar is only delegated, and therefore merely local. Yet, common error standing, in reality he did not absolve invalidly.

3.º Neither, neither the parish priest nor the vicar, could licitly of themselves absolve outside pilgrims - add, also validly - namely because of the lacking approval of the bishop of the place. Yet, common error standing, each validly absolved." Thus Fr. Gury 552.

It must be noted here that what is said by Fr. Gury, and in reality is commonly accustomed to be said, namely that ordinary jurisdiction is personal, and delegated jurisdiction is local, speaking of itself, is said altogether improperly. For all jurisdiction is personal, since it is only over persons. But it is called personal or territorial to signify that it is or is not restricted by territory as to its exercise. Therefore that ordinary jurisdiction is not restricted by territory, and consequently someone can absolve in every place because it is personal, is ineffectively proved from this, if that word personal signifies what is exercised over a person; for delegated jurisdiction is also exercised over a person, and therefore it also could be exercised in every place. But if it signifies that it is not restricted by territory, this is precisely what must be proved, and the same thing would be proved by the same thing. Likewise, that delegated jurisdiction, on the contrary, is restricted by territory because it is local, evidently contains a begging of the principle, because this very thing is what must be demonstrated. Therefore another reason must be assigned why the parish priest could absolve his own parishioners outside the parish and diocese without approval of the bishop of the place, but his vicar could not.

D'Annibale 322 and others think that even the vicar in the Case, at least speaking absolutely, could absolve his own penitents outside the parish and diocese, because of the general reason that delegated jurisdiction according to itself is the same as ordinary, and is exercised over one's own subject as the latter is. This is the whole doctrine of the distinguished author: "Jurisdiction can be prorogued, as otherwise, from time to time, from person to person, from place to place. It cannot be prorogued from case to case because of the reservations, as they call them. From the first, therefore, a penitent is absolved by a confessor by whom he was dismissed unabsolved and about to return soon, if he returns at that time when that confessor has ceased to be. See St. Alph., VI, 537, q. 111. From the second, we absolve travelers in our diocese. From the third, a bishop or parish priest absolves his subjects in another diocese. S. C. C., Dec. 3, 1707; Benedict XIV, Not. 86, 7. Therefore can even a simple confessor absolve his own diocesan subjects outside the diocese? Several deny it from the Pontifical Constitutions, which require approval of the Ordinary of the place. See St. Alph., VI, 548, and first from the Constitution of Innocent XI, April 10, 1700. Some affirm, Suarez, Sanchez, Lugo, Salmanticenses, Mazzotta. This opinion in the point of law seems truer to me, because the delegate uses the jurisdiction of the one delegating. Nor do the Pontifical Constitutions stand in the way; otherwise neither could parish priests do this; and the Constitution of Innocent XI was issued from peculiar causes and for some places, Salmanticenses, Mazzotta. Nevertheless the former opinion is altogether to be held, because from the probable intention of the one delegating, delegated jurisdiction is bounded by territory. But I do not think confessions made are to be repeated, except at the article of death."

But if in reality the delegate uses the jurisdiction of the one delegating, if the delegator signifies nothing positive to the contrary, from the probable intention of the delegator delegated jurisdiction, on the contrary, is not bounded by territory. Therefore the reason why the delegated vicar cannot hear the confessions of his own outside the diocese, and the parish priest can, must be sought from the approval of the Ordinary of the place, which Trent, sess. 23, c. 15, de R., and the Pontifical Constitutions in reality require for all others, apart from a special privilege, except parish priests, but by no means for parish priests. Hence it does not follow that, if delegates could not hear the confessions of their own penitents without approval of the Ordinary of the place, neither could parish priests without that approval hear the confessions of their own parishioners in another diocese. And, if there is any doubt in the Law, it certainly vanishes from custom, which is the best interpreter of laws. I. M. 774.

5. "Sabellus, a priest, surrounded for some time by a great crowd of penitents, after the term of approval had expired, continued to receive confessions, first indeed laboring under invincible ignorance, then also in bad faith. But having therefore been suspended from confessions by the bishop, he nevertheless absolved some little women ignorant of the suspension. Then, taking flight and forging letters from the bishop, he establishes himself in another place to which the report of the suspension had not yet come, and there, for hearing confessions in a certain great solemnity, he is admitted by the parish priest.

It is asked: 1.º Whether Sabellus validly absolved, whether in good or bad faith, before the suspension? - 2.º Whether he validly absolved the little women after the suspension, and the faithful after the flight?

R. To the 1st. Affirmatively. The reason is that common error was present, from which it happens that the Church more probably supplies, even when a colored title is lacking. Nor does it stand in the way that afterward Sabellus was in bad faith, because this bad faith does not destroy the common error. Lig. 572.

To the 2nd. Sabellus invalidly absolved those few little women who were ignorant of his suspension, because then there was only private error. But the Church, according to the common opinion of theologians, does not supply jurisdiction in private error, because the Church, as general provider, is not considered to supply except by reason of the common good. But after the flight Sabellus validly absolved, at least probably, because common error was present in the place into which he betook himself." Thus Fr. Gury 545, 546.

The response to the 2nd is not without difficulty. For if Sabellus before suspension, by reason of common error, validly absolved, why after suspension, by reason of the same common error, did he not validly absolve, since he altogether lacked jurisdiction both after the suspension and before it? And if before he was suspended the error in that place was common, how then, after the suspension was unknown, did the error there become private? And indeed, as Fr. Gury himself has it, because after the flight common error was present in the place into which he betook himself, therefore there he validly absolved, at least probably. Therefore the same must be said about the place from which Sabellus had fled, because the error there was common; and therefore, just as he validly absolved other penitents, so he also absolved those little women. Nor does it avail to say that there was question of some little women. For otherwise Sabellus, continuing to hear confessions after the term of approval had passed, would have absolved invalidly at least the first penitents, which neither Fr. Gury says, nor others say, nor can be said. For let it be supposed that on the first day after the term of approval had been completed, that whole crowd of penitents had indeed been at the same time in the church, and after Sabellus heard the confessions of some, an impediment suddenly arising, he could not continue with the confessions of the others: would the absolutions of those few have been invalid? And if that whole crowd, as usually happens, was not all at the same time in the church, but some came after others through the whole morning, would at least the absolutions of those who came first be invalid? And what if, after some had already come and had been absolved, because of a fire, earthquake, invasion of enemies, or some other reason, others could no longer come to the church: would those who were absolved therefore have been invalidly absolved? Then surely it would have to be said that, in order that absolution be valid by reason of common error, it is necessary that that great crowd of penitents had in fact already been absolved. Wherefore the absolution at least of the first penitents would then remain suspended until the fact of a great crowd of absolved penitents is verified. But if this cannot be said, it certainly does not appear why those little women, although they were some and were not innumerable, whether simultaneously or successively, were not validly absolved in the Case, just as the other preceding penitents of Sabellus, who for some time continued to receive confessions without jurisdiction. Otherwise also after the flight Sabellus did not validly absolve at least the first, if after he heard their confessions he could not then hear the confessions of the rest. That is to say, for common error here there is not required common error in fact as to the very effect of that error, namely the fact itself that several are really deceived and confess to one not having jurisdiction, but only common error in law as to the aforesaid effect: namely such a state of affairs that error of many follows of itself, and therefore many can confess to one not having jurisdiction. And then the reason for jurisdiction to be supplied is verified, namely the averting of the danger of common harm. A state of affairs of this sort certainly is had whenever a confessor publicly exercises the office of confessor, so that publicly he is considered a confessor and therefore can hear the confessions of many. "There is common error," says D'Annibale, p. 1, n. 79, "if in that place where someone exercises jurisdiction, for example where he acts as parish priest, he is publicly considered to be endowed with it, from Law 3 to the Macedonian Senatusconsult; whether an error of fact or of law is involved, from Law 41, Mandati; La-Croix, l. 6, p. 1, n. 113; provided the error of law is probable." And Casimirus Gennari, Monit. Eccles., vol. 7, p. 1, p. 85: "Behold," he says, "the theory of common error clearly formulated. When a person, called by canon or civil law to exercise some jurisdiction, exercises it publicly, so that the generality believes that he has the title, even when the title is not there, for the good of persons the jurisdiction is supplied by the legitimate power." It is supplied, namely, by the law; for it is not supplied by him who wrongly gave it or ought to have given it. But when the law supplies jurisdiction, it is the same as if one were endowed with it. Therefore validly, although illicitly, it is exercised by him and also with him who is not ignorant that it is lacking to the one exercising it. D'Annib., p. 1, n. 79. And La-Croix, l. 6, p. 1, n. 112: "When there is given a prudent and common persuasion for the jurisdiction or power of someone, whether ordinary or delegated, for doing something, although that persuasion before God is false, nevertheless it is certain that the Church, if it can, supplies or dispenses, etc." Therefore Sabellus validly absolved even those few little women, because he was still publicly considered to be a confessor and to have jurisdiction. Hence, if not only some but also very many others after them had been absolved, he would have absolved validly, until he was held by the multitude, or publicly, as a confessor. I. M. 769. Cf. following Case.

6. Titius, formerly a monk, afterward an apostate from religion, using false testimonial letters, since he was a simple priest, showed that he had both exercised the office of preacher and received the confessions of nuns. Therefore in a certain diocese he obtains these same offices, both of preacher and of confessor of nuns. But in the faculty letters this clause is placed: "if the things set forth are true and he has exercised the same office elsewhere."

Titius exercises the office entrusted to him with great zeal and the appearance of virtue; but in receiving the confessions of girls who were staying in the monastery for the sake of education, he often commended the state of marriage and insinuated as most grave the burden of the vow of perpetual chastity and enclosure. This finally became known to the abbess, who, exploring more diligently into the manner of his life, recognizes concerning him what was hidden, and also his apostasy from religion. Immediately terrified, she calls a learned confessor and explains the whole matter to him. But he asks within himself:

1.º Whether and under what conditions the Church supplies jurisdiction when penitents invincibly do not know this defect? - 2.º Whether the absolutions given by Titius were valid? - 3.º By what more prudent manner provision is to be made in the Case?

R. To the 1st. The Church supplies jurisdiction by reason of the common good, if nevertheless it could have given it. Wherefore it does not supply it if the abbess, for example, about whom there is question in the Case, were to absolve all the nuns and seculars coming to the monastery. But it supplies it first when someone exercises it with a colored title and common error, by reason already stated of the common good. It supplies second, when someone exercises it with common error, but without a colored title. Several indeed deny this, but others more probably affirm it. For the cause of public utility is the same, common error standing, whether a colored title is present or lacking in the one exercising jurisdiction. It supplies third, when someone exercises it while its probability stands. The reason is the universal custom of confessors in this matter, and custom furnishes jurisdiction. St. Alphonsus, l. 6, n. 573. Probability, namely of law, for example, whether one not approved can validly absolve a dying man when an approved confessor is present. What about probability of fact? For example, whether the time of jurisdiction delegated to me has passed? There are not lacking those who affirm. D'Annibale affirms among others, retracting himself, 3rd ed., p. 1, n. 80, note 78, saying: "Jurisdiction is supplied in a doubtful matter, provided the doubt is not merely negative, but positive and truly probable... whether of law... or of fact, otherwise than I once thought." But this is not commonly admitted, and the same D'Annibale, in the same 3rd ed., p. 3, n. 321, again retracting himself, says: "The Church supplies jurisdiction when a probable opinion underlies in a doubt of law, not likewise in a doubt of fact." But the reason is that, if in favor of probability of law a universal practice and custom of confessors can be affirmed, this surely cannot also be affirmed in favor of mere probability of fact. Hence much more must it be said that the Church by no means supplies jurisdiction in a merely negative doubt, if someone, for example, merely doubts whether jurisdiction was delegated to him; or also, and a fortiori, in ignorance of jurisdiction, if someone namely is ignorant whether jurisdiction was conferred on him. Likewise the Church does not supply jurisdiction if someone uses merely presumed or interpretative jurisdiction, holding for certain that the Church will ratify it. For the act in the Case cannot be made valid by ratification; and most commonly, and by all doctors, this Case is either explicitly excluded, or at least implicitly, since they do not list it with the other cases in which the Church supplies jurisdiction.

To the 2nd. It seems that the response must be affirmative. If a colored title is required with common error so that the Church may supply jurisdiction, a colored title was not lacking in the Case. For a title is a cause by which some right is acquired, and it is colored when, although nothing seems to be lacking to it, nevertheless it labors under a hidden defect, whence it transfers no right. Now Titius obtains from the Ordinary of the place, that is, from one having power for this, faculty letters for hearing confessions, by which letters approval and jurisdiction are accustomed to be legitimately conferred upon all confessors. Therefore Titius did not lack title. But that title was merely colored; for it labored under the substantial defect of obreption, since the faculty of hearing confessions was not granted to him absolutely, but under this formal condition, if the things set forth are true and he has exercised the same office elsewhere; which condition was not verified. Nor indeed was common error lacking in the Case. It indeed seems at first sight to be lacking, since there is question only of one monastery of nuns. Yet in reality common error was present. For common error here is not an error in fact of many, of the greater part of the community, or of the whole community. Since there is question of the validity of acts, and of acts altogether successive, if common error were common error in fact and in second act, those acts would not begin to be valid until after someone had already absolved almost the whole community, or a smaller part of the community, or at least several but not yet many; and then how many? And therefore the matter would always remain uncertain for the last absolved; but for the first, the benignity of the Church would profit nothing, although she supplies jurisdiction by reason of the good of all souls. Besides, if when there begin already to be at least many, or the greater part of the community, or the whole community, the first who is absolved is then certainly validly absolved, and validly absolved by reason of common error, by reason of the common good, how indeed in this one is there had common error and the common good? Therefore common error and the reason of common good were verified already from the first who was being absolved; and therefore already that first one was validly absolved. Wherefore common error cannot be understood as error in fact and in second act; but as common error in law and in first act, that is, in such a state or condition of affairs that error publicly or of the community can and ought naturally to follow, namely if the matter follows its natural course. Moreover such is the state or condition in which Titius is found. For Titius has faculty letters for hearing the confessions of the nuns of the diocese; and therefore not restricted to one or another house of two or three sisters, but he has in the diocese a general faculty of hearing the confessions of nuns, as now the Sacred Congregation of Bishops and Regulars exhorts bishops to do, namely so that nuns can easily have recourse to them. Decree Quemadmodum, Dec. 17, 1890, § IV. But if Titius obtained a special approval for nuns, he certainly obtained approval also for all other Christian faithful, especially since he also simulated the office of preacher. Hence, if he himself began also to hear confessions in some public church, setting up for himself some confessional, as is usually done, from this head also common error appears more than sufficiently in the Case of Titius. Finally, common error is drawn also from the fact that Titius by every art tries to hide his true condition, and publicly to boast himself as preacher and confessor, and as a confessor endowed also with special approval of nuns in that diocese. This indeed is not explained in the Case, but is drawn sufficiently from its exposition, since it is said that he bore before himself great zeal and the appearance of virtue.

To the 3rd. Since the confessions were valid in the Case, the consciences of the nuns and girls are not to be disturbed. Wherefore the defect of jurisdiction of Titius in that monastery must be pressed down in deep silence. But the abbess is bound to denounce the whole matter to the Ordinary of the place. Nor indeed meanwhile can the nuns and girls confess to Titius, and therefore the abbess is bound at once to seek another confessor from the Ordinary. But the obligation in the abbess of denouncing Titius arises not only from the defect of jurisdiction of Titius, but also from the scandal which could easily have been had from that recommendation of marriage, and from that burden of chastity and of religious life declared to the girls either exaggeratedly or beyond all opportunity and prudence.