Fourth Commentary: On the Decree of the R. and U. Inquisition concerning Absolution from Papal Cases. Cf. n. 575

1. Two general questions can be raised concerning this Decree. The first is what its value, or force of obliging, may be. The other is what its objective extension may be.

2. As regards the First question, several indeed doubt concerning the force of obliging of such a Decree, and by thus doubting they seem in reality to deny it. The reason is that such a Decree seems a certain new law, derogating from the whole law of the Decretals; but this law is neither approved in specific form by the Supreme Pontiff, nor legitimately promulgated. But Decrees of the Sacred Congregation, even of the Supreme and Universal Inquisition, approved by themselves and only in common form, merely published, cannot constitute a new law, although they are of the greatest authority and weight. Cf. Ballerini, note (a), n. 130, Vol. 1, Comp. P. Gury; St. Alphonsus, book 1, n. 106; Pichler, Prolegom., n. 46; Schmalzgrueber, Dissert. Prooemial., nn. 373-377; Reiffenstuel, Prooem. in Ius Canonic., nn. 130-134. Besides, the matter is confirmed from the very practice of the Sacred Penitentiary, on which alone the present Decree rests, drawing all its intrinsic strength from the same practice. For this practice, by no law, is to be held as a true law; nor does it have the conditions, especially in the subject matter, necessarily required for forming at least a custom having force of law. Cf. Ballerini, Vol. 2, Comp. P. Gury, n. 867, note (b), n. 25 ff. of the same note. Finally, the same Sacred Congregation of the Inquisition, interrogated concerning this same matter, responded on the day 18 July in the year 1860: "Let him consult the Decretals of Clement III related in chapter 15, Cum desideres, and chapter 26, Quod de his, De Sent. Excomm., and approved authors, among whom St. Alphonsus de Liguori, book 7, ch. 1, on Censures, nn. 84 to 92." Moreover, in the cited places of the Law and of St. Alphonsus nothing is had concerning the obligation of seeking absolution by letter, when an impediment stands. Indeed St. Alphonsus, l.c., says that the doctrine is common, more probable, and safe, that he who has an impediment of appearing before the Pontiff is not bound to seek absolution by an intermediary or by letter, even from the Sacred Penitentiary. But it seems strange that a contrary practice should have prevailed in so brief a time. Nor indeed can this contrary practice be sufficiently proved absolutely, since perhaps many and by far more were those who, consulting the Decretals and approved authors and especially St. Alphonsus, gave absolution, no faculty having been sought by letter from the Sacred Penitentiary. When a doubt had been proposed by the Most Reverend Peter Bertapelle, in Const. Apost. Sed., Padua 1877, n. 218, "Whether through the Constitution Apostolicae Sedis there was derogated in any part from the power which law and universal custom had conceded to Bishops concerning those impeded from personally setting out to Rome?" the Secretary of the S. Penitentiary, although in an altogether private manner, deigned to rescript: "Nothing has been innovated." Cf. Gury-Dumas, Cas. Consc., Vol. 2, n. 646; Gury-Ballerini, de Poenit., n. 575.

3. These things notwithstanding, several others, and learned Theologians at that, think that such a Decree has a true and proper force of obliging all. For Decrees of Sacred Congregations, and especially doctrinal Decrees, such as the present one is, of the Supreme Universal Inquisition, approved by the Supreme Pontiff in whatever form and manner, have the same authority as if they emanated from the Supreme Pontiff himself, and consequently have the force of law. Hence it is not strange at all if a simple Decree of a Sacred Congregation derogates without another formality from the Pontifical Constitutions themselves which up to now were in force. Nor indeed, that they may oblige, is promulgation necessary, since knowledge alone of the same suffices. For there ought to be one judgment and one profession of Christ's faithful concerning doctrine and morals. Therefore by this very fact that something has been doctrinally defined by the Holy See, immediately or mediately, or has been decided for the sole purpose of protecting the security of doctrine, those knowing it now ought, without another promulgation, to hold and profess it. Cf. Paul Villada, Cas. Consc. his praesertim tempor. accommod., Brussels 1887, Part 3, Case 8; Nouvelle Revue Theologique, Vol. 18, p. 378.

4. But there is another way of considering the aforesaid Decree, which, as more conformable to received principles and reason, is altogether approved by us. This Decree is not some new law, but an interpretation of preexisting law and right. Hence its whole juridical value easily appears. And indeed this Decree pronounces that which had already been established by ancient law, namely that, when an impediment stands, the inferior confessor absolves. But now all circumstances of Society and Commerce, of the difficulty of journeys and of the transmission of letters, having been changed, the Sacred Congregation declares that an impediment of now approaching the Supreme Pontiff, so that an inferior Confessor can absolve from Censures reserved to the Roman Pontiff, is not present unless someone not only cannot personally come to Rome, but also, because of narrowness of time, cannot at least seek absolution by letter. Wherefore the impediment which previously was present was only an impediment of personal access; but the impediment which now is present, the circumstances of times having been changed, is an impediment of personal access and by letter. For someone can treat this matter by letters at present as well and safely as once he could undertake a journey to Rome; indeed, as is plain in itself, someone can now much more easily and safely send a letter than once undertake a journey. But now, if this Decree is nothing except a mere Declaration of Law and Right, that it may have force of obliging there is not required a special approval, or approval in specific form; nor is its solemn promulgation required; but common approval, or approval in common form, altogether suffices, and simple publication, namely that it simply become known. Cf., besides the authors praised in n. 1, Varceno, Comp. Theol. Mor., Turin 1887, Tr. 3, ch. 6, art. 1; Scavini, Theol. Mor., Milan 1874, book 1, n. 173; Joseph D'Annibale, Summ. Theol., 2nd ed., Part 1, n. 182; Ferraris, Biblioth. Canon., v. Declarationes et Decreta, nn. 12-15.

5. Hence the practice of the S. Penitentiary, of which there is speech in the Response to the 1st Question, does not seem to be simply the practice of conceding absolution to those asking. For from this practice nothing can be deduced. Nor does practice of this sort seem to be the removal of the obligation of approaching personally to the Holy See for those very persons who seek absolution from the S. Penitentiary. For those who obtain absolution from the S. Penitentiary, by that very fact are freed from the burden of appearing at some time before the Holy See. But the removal of this burden for these persons cannot be the reason why generally one impeded can no longer be absolved by an inferior confessor as before. Therefore the practice of the S. Penitentiary about which there is question seems to be this: that the S. Penitentiary for all at present, whether they are impeded or not, no longer has as obligatory in practice the prescription of ancient law of personal access, but it is at one's choice either to come in one's own person to the Roman Church, or to approach it by letter. Wherefore, the obligation of exclusively personal access having been removed, the faculty of approaching personally still remains. And thus of one who, while an impediment stands, is absolved, it is not said that he ought afterwards by letter to approach the Holy See, but that at least by letter and through the medium of the confessor he ought afterwards to have recourse to the Holy See. Therefore, in the case of a censure reserved to the Roman Pontiff, whether personal access is possible or not, someone can as before approach the Holy See in his own person or through a procurator in his own name, or have recourse to the same by a letter sent by himself, or finally by a letter sent by the confessor himself. Cf. St. Alphonsus, book 1, n. 186. Hence also removed is the distinction which previously was made between a perpetual and a temporal impediment, for a long and for a short time.

6. The question previously was among Theologians whether, when an impediment of approaching the Supreme Pontiff stands, any confessor in that case could absolve from sin and from reserved censure, or only the Bishop; and only in impossibility of approaching the Bishop would that faculty be made for any confessor. By the present Decree such a controversy is found settled in favor of the opinion which, more congruently with the Law, held that any confessor in that case can impart absolution. Cf. Commentary on Censures, nn. 64, 65.

7. The question likewise was whether, when an impediment stands, absolution is always given directly, or only indirectly. The present Decree also settles this question in favor of the opinion which, again congruently with the Law, asserted that absolution is given directly. For the Sacred Congregation declares that the faculty belongs to confessors of absolving even from censures reserved in a special manner to the Supreme Pontiff. Moreover the same S. C. adds that there is a penalty of reincidence into the same censures unless, within at least a month, the absolved person has recourse by letter to the Holy See. But now, if reincidence is had into censures, the penitent was truly absolved from them and consequently obtained absolution directly as to sins. Cf. Commentary on Censures, n. 51 ff.

8. Finally, a distinction, brought into the midst by someone against the most common opinion of the Doctors, between cases and reserved cases of greater and lesser moment to be absolved when an impediment stands, insofar as the former cannot be absolved by an inferior confessor but absolution must altogether be obtained by letter, but the latter can be absolved by an inferior confessor, is altogether rejected by the present Decree, and indeed reasonably, and altogether suitably to the Law of the Decretals. For the present Decree equates all papal cases among themselves as to absolution to be obtained, when an impediment stands, from an inferior confessor, even if they are censures reserved in a special manner to the Supreme Pontiff. But they are reasonably equated, since there will always be the same impediment, the same danger of grave scandal or infamy from delayed absolution, whether there is question of an altogether enormous matter or of a lighter matter. Those censures are also equated suitably to the Law of the Decretals. For from the Law of the Decretals no distinction is had between censure and censure, between reservation and reservation, between enormous and less grave delict, where there is question of absolution to be given in the case of impediment, precisely by reason of impediment. Nowhere indeed is it pronounced that absolution should be sought by letter if the crime was enormous and an impediment of approaching the Holy See is present. But on the contrary it is openly asserted that they can be absolved, nevertheless with the burden imposed that, the impediment ceasing, they must visit the Roman Church in their own person, approach the Roman Church or its Legate, approach the Roman Pontiff, etc., as is found everywhere in book 5 of the Decretals, Title 39, de Sent. Excomm., and book 3, Title 11, in the Sixth. Nor indeed is this general rule to be confused wrongly with that which is established in some particular case; nor likewise is this general faculty made for an inferior confessor of absolving the impeded, as impeded, to be confused with the special faculty made for a Bishop of absolving from the excommunication of the canon when the striking has not been enormous, but slight or even grave, which special faculty by common law was conceded also to Regular Prelates and has been confirmed by the Constitution Apostolicae Sedis itself. Cf. Commentary on the cited Constitution, n. 49. And indeed the Response of the S. I. C. related in number 3 does not refer to any case whatever, but to an altogether enormous case, to the case, namely, as they say, reserved to the Supreme Pontiff in a most special manner. For there was question of the excommunication "which the Confessor contracted by absolving outside the article of death an accomplice in a shameful sin." But now in the praised Decretals of Clement III, to which the S. C. refers the orator, not even a word is had concerning a letter to be written. In chapter Cum desideres, 15, de Sent. Excomm., it is said that notwithstanding caution given and satisfaction furnished, absolution is to be obtained in the form constituted by the Church. But chapter Quod de his, 26, of the same title, has these things: "Brother, we have judged that you should be responded to thus: that he who asserts that he has fallen into the Canon of a sentence latae sententiae can obtain the benefit of absolution in no other way than through the Apostolic See or its Legate: unless perhaps in the article of death, or by poverty, or infirmity, or old age, he were burdened so greatly that he could not endure the labor of coming to the Roman Church, or were drawn back from this by some other canonical impediment. But from these persons in the form of the Sacrament it has been customary to exact that, strength having been resumed, and opportunity having been granted, they ought to visit the Roman Church in their own person." Cf. chapters Super eo 1, Monachi 2, Mulieres 6, De caetero 11, Ea noscitur 13, Pervenit ad nos

17, Nuper a nobis 29, Cum illorum 32, De monialibus 33, Relatum 37, Canonica constitutione 50, Quamvis incidens 58, De Sent. Excomm., Eos qui 22, of the same title in the Sixth, Quoniam 9, De vita et honest. Cleric.

9. But here it is asked how it still cannot safely be held that, when an impediment stands, any priest or Bishop can absolve from papal cases, if the Decree itself finally teaches this very thing in the Response to the second Question? That is called safe which is without danger. Therefore an opinion which cannot safely be held speculatively, or cannot safely be taught, is an opinion which cannot be taught without danger of error. Likewise an opinion which cannot safely be held practically, or cannot safely be reduced to practice, is an opinion which someone cannot follow in practice without danger of sin. But now, the aforesaid legitimate Declaration of the Sacred Congregation standing, if someone at the present time were generally to say that one personally impeded can be absolved by another inferior, he would expose himself to the danger of erring speculatively and sinning practically. For first, the circumstances of times having been changed, many who previously were truly personally impeded from approaching the Holy See are at present no longer such. Besides, those personally impeded from approaching the Holy See were previously understood to be only those who could not come to Rome in their own person; but now they are understood to be those who neither can come to Rome in their own person, nor because of narrowness of time can seek absolution at least by letter. Wherefore there is no opposition in the Response of the Sacred Congregation to the first and to the other Question, when it affirms, namely, both that it cannot safely be held that a penitent who is in the impossibility of personally approaching the Holy See can be absolved by an inferior confessor, and that a penitent impeded from approaching the Holy See personally and by letter can be absolved by an inferior confessor, when absolution cannot be deferred further by reason of grave scandal or infamy. Cf. St. Alphonsus, book 1, n. 42.

10. The obligation imposed by the Decree of still having recourse by letter, absolution now having been obtained, and indeed direct absolution, in the case of the aforesaid impediment, begets no difficulty. The reason is that this is the natural consequence of the pre-established Declaration. For just as formerly, from the Law of the Decretals, absolution having first been obtained in the case of an impediment of presenting oneself to the Superior, when the impediment ceased, someone had to present himself to the same Superior; so equally now, in the case of an impediment both of presenting oneself to the Superior and of sending a letter, absolution having been obtained, when there is now time enough for writing and every impediment to it ceases, he ought either to present himself personally to the Superior, or at least by letter to have recourse to the Superior. Hence also as to this part, for the legitimate value of this Decree, neither approval in specific form nor promulgation is required, since again it is not in reality a new law, but a mere Declaration of law, such as is accustomed to be called comprehensive. Cf. C. Quamvis, 58, De Sent. Excomm., etc.

11. Therefore the whole difficulty of the present Decree is reduced to reincidence. Indeed it must also be asserted that this difficulty in reality is none if it is said, as several have thought, that reincidence was not removed by the Constitution Apostolicae Sedis. But the difficulty is really present if, on the contrary, it is said that reincidence was removed by that Constitution, as several and indeed most learned Theologians have taught; and this is truly established by the very tenor of the praised Constitution. In this opinion no other explanation of this part of the Decree can be at hand except that it be said to contain, under this head, an extensive Declaration. Cf. Joseph D'Annibale on the Constitution Apostolicae Sedis, 3rd ed., n. 218; Peter Bertapelle on the same Constitution, nn. 218, 224.

12. We now proceed to the other question, namely concerning the objective extension of this Decree. And first indeed, in the present Decree, as is established from its very tenor, there is not question of Episcopal cases. There is not question of papal cases, but occult ones. Nor indeed is there question of danger or the article of death, which is positively excepted in the second question. Therefore nothing new is to be established in these cases, so far as is by force of the present Decree. Cf. Commentary on Censures, n. 36 ff. Nor indeed would this Decree reasonably be extended from case to case, on account of that special reason also that the Sacred Congregation founds its Decree on the practice of the S. Penitentiary; whether this practice is the same for other cases as for those impeded as to papal cases is not positively established from the same present Decree. Therefore only by reasoning can the same disposition of law be affirmed, even as regards Episcopal cases.

13. But whether in the aforesaid Decree there is question of papal cases, for the impeded, reserved either with censure or without censure, does not lack difficulty. It seems to be affirmed, because in the Questions there is question generally of cases and censures, of all cases reserved to the Pope. But it seems to be denied, 1st, because in the questions themselves the doubt seems to be restricted to censures, so that the word censure restricts and narrows the other word case as to signification; for the allusion is evidently made to the cases of the Constitution Apostolicae Sedis, when at the beginning it is said: Whether it can still safely be held, etc. 2nd. In this same sense proceeds the Response to the 1st; for it is said: attention having been paid to the practice of the S. Penitentiary, especially from the published Constitution of Pius IX of holy memory, which begins Apostolicae Sedis, etc. 3rd. The Response to the 2nd Question treats only of cases reserved with censure, and the reincidence into censures there established regards only these cases. Wherefore, again, then only by legitimate reasoning must the same disposition of law be affirmed for other papal cases reserved without censure.

14. Finally it can be asked whether by the aforesaid Decree there is comprehended the censure of the canon, art. 2 of the second series of the Constitution Apostolicae Sedis. It seems that it must be denied; and the reason is that an exception is made by the same Constitution, and it is said: "excepted, as to reservation, cases and persons concerning whom by law or privilege it is permitted that the Bishop or another absolve."

A. M. D. G.