Case LII: The Jurisdiction to Hear Confessions

Caius, an alumnus, is sent from his seminary to a parish not far away to assist on a feast day. It being Paschal time, Caius received from the bishop jurisdiction to hear confessions, but explicitly for this day only. Caius therefore heard confessions, held services and made ready to return to the seminary. But suddenly the parish priest is taken ill, and he asks the alumnus to remain another day, because on that day also will people come to confession. Caius objects that he has jurisdiction only for this one day, but the parish priest says: “I will give you jurisdiction. I have iurisdictio ordinaria and can therefore delegate you, the same as I could for assistance at marriage. Of course I can only delegate you for my

‘ parishioners, not for the diocese as the bishop can. You will have potestas ordinis through Holy Orders and iurisdictio delegata from me.” This argument does not quite convince Caius, for if that were so, he thinks, for what purpose did the bishop restrict his jurisdiction just to this particular day? Yet, he satisfies his conscience by reasoning: This is a case of necessity, and if the bishop knew of it he would most certainly give me jurisdiction; I may then rightly é presume the jurisdiction.

In the worst case—he reasons further—there prevails error communis so that the Church supplies the jurisdiction if absent. He remains, hears confessions the following day, and returns to his seminary.

Questions —I. What is to be thought of the parish priest’s argument, and what of the arguments of Caius?

II. Were the absolutions given by Caius valid or not?

In order that the absolution in the Sacrament of Penance should be valid, there are necessary for the priest hearing confession, besides potestas ordinis, also approbatio and iurisdictio, The approbatio is the authoritative declaration that the priest in question is capable, scientifically and morally, of hearing confessions, the iurisdictio is here the bestowal of the faculty to render decisions pro foro interno.

That approbatio as well as iurisdictio are necessary is evident from the Tridentine (Sess. 14, cap. 7, and sess. 23 de ref. cap. 15), iurisdictio is necessary iure divino, approbatio however iure ecclesiastico, as the latter was first introduced by the Tridentine. Although frequently both are given to the priest uno eodemque actu, yet it is necessary in many cases that approbatio and iurisdictio should be precisely distinguished. Naturally approbation precedes jurisdiction, - for only to the priest declared capable are assigned certain faithful as subditi, over whom he is to exercise jurisdiction. Presuming as known the terms iurisdictio ordinaria and delegata we will pass on to answer the questions.

Ad. I. The parish priest’s argument is not valid. Of course he himself has iurisdictio ordinaria and can, if nothing prevents, delegate another priest, for instance to perform marriage. But for hearing confession there is not merely iurisdictio necessary, but also approbatio, and the latter per Episcopum loci.

Caius had received approbatio and iurisdictio uno actu from the bishop, but only for one day, for the second day both were lacking to him. The parish priest could not give jurisdiction to Caius because the approbation which the Tridentine requires was lacking. Previous to the Tridentine the matter would have been different. The matter is stated by LEHMKUHL (II, n. 371) as follows: Although by the nature of the matter anyone who possesses ordinary power can communicate it to another, nevertheless by the supreme ecclesiastical authority, upon which every exercise and validity of jurisdiction ultimately depends, it has been established that no one may exercise delegated jurisdiction in the sacred tribunal of penance—at least as regards the confessions of secular persons—unless he has received approval from the bishop of the place. Hence it has come about that delegation given or to be given by those who are inferior to the bishop has become almost useless.

Since the approbatio per Episcopum loci is always necessary, a parish priest can not delegate a priest, who has approbation and jurisdiction in another diocese, to hear confessions. Exempt from this law are only the parish priests themselves (and a fortiori the bishops) in regard to their subditi, so that they can hear their parishioners’ confessions also in another diocese without approbatio per ordinarium loci, because the Tridentine itself excepts from this law those in possession of a parish benefice.

Now let us pass to Caius’ views. He believed he could with perfect right presume the iurisdictio. But—and this is taught unanimously—the approbatio and iurisdictio can not be presumed. For the validity of the absolution the Tridentine requires an approbatio actu existens and hence an approbatio praesumta suffices not at all, no matter how probable or certain it may seem that the bishop would grant it. “The approval required for a valid confession must truly have been given (and made known to the confessor); the presumption that approval will be given does not suffice” (LEHMKUHL, II, n. 384, 4). If a priest therefore desires an extension of his jurisdiction from the bishop, he must not, no matter how certain it may be that the bishop will grant the extension, hear confessions before receiving positive information (written or by reliable messenger) that the jurisdiction has been prolonged.

Perhaps in Caius’ favor is his last argument, that there is an error communis and that therefore the Church supplies the defect. The question is, when does the Church supply the lacking jurisdiction? Theologians give a unanimous answer to this: The Church supplies if an apparent title and common error are present, but both must be present at the same time. The titulus coloratus is present if, though the exterior act through which jurisdiction is bestowed, has taken place, it is invalid on account of a secret fault, for instance if exteriorly a parish were quite lawfully assigned to a priest, but the entire act were invalid on account of secret simony. If the jurisdiction has not been given at all, or if, though given validly, it has already expired, yet the people suppose the priest has jurisdiction, then there is present titulus putativus, together with error communis. It is plain that in our case Caius had no titulus coloratus, but only putativus, i. e., there is present therefore error communis sine titulo colorato.

For this case the theologians hold: If a putative title and common error are present, it is not certain whether the Church supplies. LEHMKUHL writes thus: “If only common error is present without an apparent title, many indeed think that the Church still supplies on account of the common good, for which public authority ought especially to provide; but since we have no ecclesiastical law that perhaps establishes this, nor is there a consensus of the Doctors, the entire matter remains doubtful.”

Ad. II. From the aforesaid there follows the answer to the second question and this answer is: It is not quite certain that the absolutions given by Caius on the second day were valid. For, although Sasetti, S.J., says (Compendium Theol. Mor., n. 773): “Probably the Church also supplies if common error is present without an apparent title, but with a merely supposed (= putative) title. For the same reason presses as in the preceding case, since even under this supposition countless souls could perish. Thus many weighty theologians cited by St. Alphonsus, n. 572; and although A. ESCHBACH (Anal. Eccl., 1897, p. 505) writes: “But now the more probable opinion holds that the Church supplies if common error is present, even without an apparent title. Moreover, we are dealing with a favorable matter in which extension is granted,” by all this we do not get beyond the probabilitas, and where a Sacrament is concerned, probabilitas is of little use to us (extreme cases of necessity excepted), what we need is certitudo.

What is to be said of Caius’ action? Objectively he has committed a grievous fault. It is not even allowed to hear confessions, though titulus coloratus and error communis are present and the Church therefore surely supplies the defect, when one knows he has no jurisdiction, but only a titulus coloratus. Even more unlawful is it if only error communis is present, when it is not certain that the Church supplements. “All the more is it not lawful for one who knows himself deprived of all power and title to it to act because of common error alone, both because he usurps a power which he does not possess and because he exposes to danger and harm those for whom it matters that his act be valid” (LEHMKUHL). To what extent Caius was at fault subjectively, we are unable to determine, but it must be admitted that he took the matter too lightly.

The claim will hardly be made that there was a probabilitas of valid absolutions, and that cum iurisdictione probabili one could lawfully absolve. The answer to this would be: In our case there was not only iurisdictio probabilis absent but there was nulla iurisdictio, probable it is only that the Church supplied the defect.

Finally, the question suggests itself, what was to be done after Caius discovered his error? Were the people to be informed that they were only apparently absolved, and that they were obliged to procure certain absolution? This question is by BERARDI (Praxis Confess., n. 1053, IX) answered thus: “There exists no obligation in general to compel the faithful to repeat confessions made bona fide”; ‘ and in support BERARDI refers to the decision by the Congr. Concilii, of December 11, 1683. The matter is to be left at rest; in the worst case the faithful will have these sins indirectly remitted in their next confession. It would be different if the faithful themselves found out that these confessions were of doubtful validity. Some theologians are of the opinion that even in this case the faithful need not be required to repeat their confessions, but the decision quoted by BERARDI says: If those who confessed should themselves learn this or should doubt the invalidity of the confession, they are bound to repeat the confession.

Ignaz Rieder, D.D.