Case LXIX: Outside Confessor: a Case from the Law of Regulars

Applied correction from Woywod's opening insert: CASE LXIX is solved with certainty by Canon 519 of the Code. It states: "If a religious even of an exempt Order for the sake of peace of conscience makes his confession to a priest approved by the bishop of the diocese where the confession is made, though such priest be not appointed by the superior of the Order for the confessions of the religious, the confession is valid and licit. All contrary privileges of Orders are hereby revoked."

Father F., a religious, has had the misfortune to fall grievously, and the sin committed is, moreover, a reserved one in his Order. He is greatly ashamed of it, and can not get himself to confess his sin either to his ordinary confessor, or to any other in the Order, although according to the constitution of the Order, he is bound to do so. He finally goes to a certain secular priest in whom he has special confidence on account of his venerable age, and is absolved. Subsequently, however, he is frequently troubled with scruples about the validity of his Confession to the secular confessor.

Questions: 1. Are there cases in which a religious may confess to a priest not of his own Order?

2. If so, can such confessor absolve in a case reserved by the Order?

3. Are the doubts of Father F. well founded or not?

Ad i. Although according to the papal constitution the (exempt) regulars in general may only confess to their superiors, or to those priests of the Order authorized by them, still there are cases in which a religious may make his Confession to an outside priest, a regular of another Order or a secular priest. Apart from a special privilege, which may be given to members of an Order to confess outside the monastery, even to a secular, there is a distinct instance given in the decree of Clement IV, Virtute conspicuos, and in a later almost identical decree of Boniface VIII, which allows a regular in some cases to seek a confessor outside, namely in necessitate articulo. Now what is meant by necessitatis articulo?

Piatus Mont. briefly answers this question as follows: Some require for this an extreme necessity, such as the moment of death. Others add to this case the case of prolonged residence among unbelievers, where there are no other brethren of our Order. Others, finally, extend this case to the necessity of avoiding scandal, or of preventing the penitent’s spiritual ruin, or of providing for his salvation. ( Praelectiones Juris Regularis, ed. II. tom. I. p. IV. c. I, a. 2, qu. 1.)

A religious away from his monastery ex causa rationabili et cum licentia Praelati, or on a journey, may, in the event of not finding a suitable religious, go to Confession to any non-regular. Whether in such case the confessor thus chosen must be approved or not, is a mooted question. Authorities, such as Saint Alphonsus (l. VI. n. 575), Lehmkuhl (tom. II. n. 394), Ballerini and others, deny this, while Piatus for important reasons advocates the approbation, by remarking in his Praelectiones J. R. (pag. 416, qu. 12): Others, however,... require that the priest chosen be approved. For jurisdiction in this case is conferred upon the confessor neither by the regular prelate nor by the Roman Pontiff. Not by the regular prelate, since a regular superior cannot, even within the Order, appoint anyone unless he is suitable and has been found such by examination. Nor by the Supreme Pontiff, because in privileges the Roman Pontiffs always require that a suitable confessor be chosen. Now no one can be considered suitable unless he has been approved by his superior, and quotes further proof of his contention, especially a decision of the S. Congr. Episc. et Regularium, according to which the religious of an Order are allowed, by consent of their superiors, to confess to a "sacerdos extraneus" “provided that he has been approved by the Bishop,” if the constitution and statutes of the Order do not oppose it. Our canonist will have this applied to secular confessors, while according to the sententia communissima for a regular confessor approbation of his own superior should suffice (Op. cit. pag. 417 qu. 13). How does this concern our unfortunate Father F.? Was he privileged, although not away from the monastery, and in spite of a copia confessarii, to go to a confessarius extraneus without fearing that such Confession would be invalid? We believe we can answer this in the affirmative for the following reasons: Let us place ourselves in the position of Father F. He has committed so grievous an offense that for very shame he can not make up his mind to reveal his sin to a confessor who is his colleague, whom he must often meet, with whom he daily associates. Although P. Albertus a Bulsano O. C. teaches in his "Expositio Regulae F. F. Minorem" (ed. nov. pag. 385): Care must be taken that no one go out fraudulently to wash away before another Confessor sins which he blushes to confess to a Confessor of his own order; for, according to the common maxim, fraud and deceit ought to protect no one^*, yet we must well discriminate here between the shame that is naturally allied to the confession of a simple peccatum grave, and which does by no means of itself justify a religious in seeking, against the papal regulations and the constitution of his Order, an outside confessor, and the mortification that a peccatum, unusual for the standing of the penitent, especially in a certain materia, brings with it, and which in a religious may be so great, that it would be asking of him something akin to heroism, to confess such case, under conditions which according to the rules of his Order are joined to an acknowledgment of such character.

^* “He, however, who will shortly undertake a journey for the sake of preaching or some other business may wait so as to make his confession before an outsider.”—(Piatus, op. cit. pag. 419, qu. 15.)

This would, of course, correspond well to the humility of which every religious should be possessed and would also conform to the saying of St. Augustine: "If not ashamed to commit the sin, then be not ashamed to confess it!" All this is very proper and true. But if, nevertheless, our religious can not bring himself to confess his sin to his proper confessor, what then? Is there really no expedient that permits him to take refuge with a confessor outside of his Order?

Perhaps there is a way out of the difficulty and we believe we have actually found it in the cases previously cited by the canonist as articulus necessitatis, among which there is denoted: the necessitas impediendi ruinam poenitentis spiritualem vel consulendi ejusdem saluti. Father F., as already stated, could not get himself to confess his sin to a Poenitentiarius of his Order. The danger to his soul's salvation in this condition is incalculable, even aside from the sacrilege of which he may become guilty, if he remains much longer in this sad state. It is not necessary to prove further that the articulus necessitatis, in the decree of Boniface VIII, may without question be applied to this case of our religious.

Moreover, what else is the papal regulation and the constitution of the Order, which place our Father F. in such difficulties, but a lex humana? It is, however, a well-known and universally accepted principle, that the obligation of such a law, at least when it is affirmative, in general ceases in case of a grave incommodum, or damnum, i. e., damni gravis periculum. (Lehmk. Theol. Mor. I. n. 155.) Inasmuch as our case deals with a damnum spirituale, this principle governs all the more.

It is to be considered, too, that the actual aim of this papal regulation and constitution of the Order, is the bonum of the Order, as also that of the individual member. A confessarius extraneus is not so well qualified to be teacher, judge and corrector, as the religious confessor himself who possesses the necessary knowledge of the rules, constitutions and obligations of the Order, which the former has not, at least not so thoroughly as the latter. Now as Father F. in his present sad state, had most need of just such a confessor, the above regulation would really serve his bonum. But as it is impossible for him to resolve to obey the same, for the reasons stated, then hie et nunc this rule is no longer for him a bonum but rather a periculum gravis damni and an offendiculum salutis, which is certainly very far from the intention of the law-givers. The finis or causa motiva, of this regulation, so salutary in itself for the religious, is therefore removed in the case before us, and for this reason, at least in hoc casu, the legal principle may be applied: Cessante legis ratione cessat quoque ejus dispositio. In other words: Father F. could, on this principle and for the stated reasons, confidently seek a priest outside his Order, at least in this case, to reveal the sad state of his conscience. But now arises the question: Did he require the permission of his superior to this end?

In general a regular does not require the special permission of his superior to confess to a priest not belonging to his, or to any Order, except this is expressly provided by the constitution, or statutes, of the Order, as of course in all cases concerning Confession of regulars, in or outside the order, not only the papal regulations, but also the constitution or statutes of the Order must be considered if the regular does not wish to run the danger of confessing invalidly. Generally the silent permission conveyed in the concession for a stay outside the monastery is sufficient. A mere licentia praesumpta however as advocated for instance by Bonagratia ("Morales Commentarii," pag. 381), does not seem quite admissible, as from such a laxness in the observance of the strict papal regulation that the regular should only confess to a regular^* may easily result.

^* It is, of course, another matter, if a religious dwells away from the Monastery. In such a case he may on the strength of this dispensation, confess to a non-regular, and for this the sola devotio suffices according to the almost universal practice of our times, always provided that no restrictions are made by the constitution of the Order or the Superior.

In the case before us our religious is privileged by the decrees of Clement IV, and of Boniface VIII, to confess to a sacerdos extraneus, as he finds himself in necessitatis articulo, and this undoubtedly in the sense of the stated decrees. Whether, however, in some way or other a permission on the part of the superior should be required, we shall not decide. In praxi we should advise Father F., in order to be quite sure about the confession, to seek first the permission of his superior. A prudent and sensible superior will, at least, for single cases, grant such permission willingly and promptly, without going into the matter more closely. Should he, however, cause the petitioner undue difficulties in regard to this permission or if the obtaining of the permission is so obnoxious for the religious that it must be regarded, according to moral principles, as really causing him an incommodum grave, then he would be justified even without the expressed approval of his superior, to betake himself to a confessor outside the Order ex jure divino, by virtue of which every Christian is enjoined to confess mortal sins before receiving the Holy Eucharist, or before celebrating Holy Mass. (Conc. Trid. Sess. XIII, c. 7 et can. XI, De SS. Eucharistiae Sacramento.) In such case this special confessor would have jurisdiction from the Popes or the supreme superiors of religious, they having declared that every religious in necessitatis casu may be absolved by an outside priest.^* Ad 2. Since the facultas a reservatis Ordinis absolvendi is possessed only by the superiors, and the Poenitentiarii authorized by them, it is evident that a confessor not belonging to the Order can not absolve from the same, unless he has previously received the necessary delegation. The latter, however, need only be a silent one, and is already included in the permission to confess to a Confessarius extraneus, ex justa et rationabili causa, and the latter can either directly or indirectly absolve from the reserved offenses according as (here again) the constitution or the custom of the Order, or the special regulations of the superior permit. How does this apply to our case? Father F. has rendered himself guilty not only of grievous sin, but of a sin reserved in his Order. Could the secular priest to whom he went to Confession absolve him also from this reserved case? After all that has been said upon this subject the answer to this question can not be doubtful. This confessor could, no doubt, absolve the penitent religious, and that directly if he has asked his superior's permission for this Confession, even if the constitution of the Order to which the regular belongs should not permit such absolution, and this holds good without doubt likewise if the religious should not have obtained an expressa superioris licentia, because it would have been for him a too difficult incommodum. The power to absolve directly from the Order's reserved case would in this case, just as in the other, be delegated to the Confessarius extraneus a Summo Pontifice as the supremus Superior Ordinis, as one could not reasonably suppose that the facultas ab Ordinis reservatis absolvendi remains reserved for the superiors and the Poenitentiarii Ordinis even then if the reservation quoad Poenitentem not only not attains its good and salutary aim, but rather is for him in destructionem or in periculum gravis damni, as the case is here, if it is made impossible for our unfortunate religious to confess his peccatum reservatum anywhere else except in the monastery. Our Father F., so as to be quite certain about the absolution a reservato, should, however, go to an approved priest. The reason for this has already been explained in our discussion ad 1. That the penitent should draw the confessor's attention to the circumstance of the reservation need not be further explained.

^* Piatus defends this view, at least in the case when a religious, in casu necessitatis, is by his Superior, without sufficient reason, refused permission to confess extra Ordinem. This view is no doubt proper, also when a regular goes to a confessarius extraneus without the approval of his Superior, because to obtain such would be such a grave incommodum for him, that according to moral principles he could not be obliged to do so, or because the Superior himself joined to his permission such burdensome conditions (as for instance, requiring the petitioner to state the exact reason for the request which would amount to a confession outside the confession) so that in the end the religious would have to confess outside, without permission of his Superior.

Ad 3. Our argument has already answered this question. Father F. need not trouble himself and he may say Holy Mass without fear or doubt about the validity of the absolution.