Case VII: Absolution from Censures Reserved by the Bishop

Applied correction from Woywod's opening insert: CASE VII, page 37.—As regards this case there is a new decree of the Holy Office, 13 July, 1916, which has been embodied in the New Code in Canons 899 and 900. According to the new regulations pastors and those held equal to them in law can absolve from the bishop's reserved cases during the entire period set down for the fulfilment of the Easter duty, and missionaries during the time of the mission. Furthermore, when people who cannot leave the house on account of sickness receive the sacraments at home and when those about to marry go to confession any priest can absolve them from the bishop's reserved cases. Also whenever the confessor judges that the faculty to absolve them cannot be asked without great inconvenience to the penitent or not without danger of violating the seal of confession the priest can for that case absolve them from the bishop's reserved cases. Finally, whenever the penitent goes to confession in another diocese where that sin is not reserved, even though he goes there precisely with that intention, the reservation does not prevent his receiving absolution.

^* Dr. Checchi, in Analecta Ecclesiastica.

Titius, in his confession preparatory for his Easter duty, acknowledges to Caius among other things that he once committed incest with a relative in the second degree. From the remarks of the confessor he learns (what he did not know before) that in the diocese this sin is reserved to the bishop with the censure of excommunication; and, therefore, that he must make his confession to the bishop, as Caius had no faculties to absolve him. However, Titius is in poor health and can not go to the bishop, whose residence is a great distance from the place; moreover, he usually goes to Communion with his wife on the next day (Thursday in Holy Week), and if he omits it this time it will cause scandal and loss of reputation, especially since his wife already suspects him of the very crime he has committed. On hearing this, Caius advises him to go to the pastor, who has, he says, the necessary faculties. Titius reluctantly consents, and when he tells his story to the pastor, the latter distresses him still farther by telling him that his faculties, which were only ad tempus, had recently lapsed. The pastor then consoles him by telling him that he can absolve him on other grounds; since, by a happy chance, he had lately received faculties to absolve from Papal censures, a fortiori he could do the same in cases reserved to the bishop; for, as the ancient theological saw has it: "Qui potest plus, potest etiam et minus in eodem genere."

Quaeritur:

1. Whether and when, outside of danger of death, an ordinary confessor can absolve a penitent from censures reserved to the bishop?

2. Whether Caius could have absolved Titius from the episcopal censure on the grounds that he was ignorant of its existence?

3. Was the pastor's course of action proper, and was his reasoning correct?

Ad. 1. The question is concerning absolution from censures reserved by the Bishop. A special decree of the Holy Office (June 23, 1886) regulates the question of absolving from censures reserved to the Pope. But since this decree does not affect episcopal cases, we must here follow the ancient law of the Decretals.

The question is, moreover, concerning absolution extra mortis articulum.

The Council of Trent, treating these matters, says: “Nevertheless, with great piety, lest anyone perish on this very occasion, it has always been observed in the same Church of God that there is no reservation at the point of death; and therefore all priests can absolve any penitents from any sins and censures whatsoever. Outside that point, since priests have no power in reserved cases, they should endeavor to urge this one thing upon penitents: that they approach their Superiors and lawful judges for the benefit of absolution.”

Accordingly any one who falls under a censure reserved by the bishop, and is not in danger of death, is ordinarily bound to go personally to that superior, not being able to receive absolution from an ordinary confessor. However, it can easily happen that on account of some physical or moral impediment the penitent is lawfully hindered from going to the bishop, while at the same time there may be an urgent reason for his getting absolution—v. g., he can not omit receiving Communion or saying Mass without scandal and loss of reputation; or he will have to miss his yearly Confession or his Easter Communion; or he will have to remain a long while in the state of mortal sin. In such cases neither the Church as a tender mother nor any superior can be considered as wishing to bind the penitent to something impossible, or, at least, very onerous. Therefore under such circumstances the faculties to absolve belong to any confessor. But his course of action will depend upon the nature of the case and the length of the time that the penitent will be hindered from going to the bishop.

Let us suppose in the first place that the impediment to seeing the bishop is brevis temporis—that is to say, not lasting beyond six months. Given such an impediment and an urgent case, the confessor can absolve the penitent at least indirectly, imposing on him the obligation of appearing, when circumstances would permit, before the bishop or his representative for such cases, to be absolved directly.

If the impediment to seeing the bishop is longi temporis (between six months and five years), the penitent can be absolved directly; with the obligation of appearing before the bishop or his delegate if the sin be reserved with a censure, but otherwise not. If finally the impediment is perpetual, or beyond five years, the reservation is considered as simply done away with, and the penitent is absolved directly without obligation upon him to appear before the higher authorities. (Cf. S. Lig. VI. n. 585; VII. n. 85 ss.; Bucceroni, De. Cens. 47 ss.)

Ad. 2. Affirmative: that is, Caius could have absolved Titus from the sin of incest reserved by the bishop with the accompanying excommunication.

If it were a question of a case reserved with censure by the Roman Pontiff, there would be no difficulty. For it is the common opinion of Doctors that reservation of such sort is not incurred by those who are unaware of the censure; for papal cases are reserved principally and immediately on account of the censure, from which, as a rule, ignorance excuses. Since in these cases the censure is reserved directly, and the sin to which is attached only mediately, therefore as the sin is indivisible from the censure, when the censure is reserved, the sin also is reserved; and on the other hand, since the censure is the reason for the reservation of the sin, when the reason (viz., the censure) does not hold, the sin is no longer reserved. (Cf. S. Lig. vi, n. 580.)

So when any case is reserved by the bishop with censure, it is equally certain that the censure is not incurred by one who is unaware of it. But the question arises whether, granted that the person is excused by ignorance from the episcopal censure, the sin itself may not remain reserved.

On this point theologians are divided, as may be seen in S. Lig. (VI. n. 581, dubit. 2) Aversa (De poenit. q. 17, Sec. II, Sec. 6); says:

“The censure could indeed simply be removed while the reservation of the sin remained. In reality, however, and concomitantly, the matter stands thus: once the censure has been removed, by that very fact the reservation of the sin also ceases... and if from the outset someone is excused from incurring the censure, although not from the fault—as can happen because of ignorance—he is likewise excused from the reservation of the fault itself. For by the Superior’s intention the reservation of the fault is so joined to the censure that it is found only together with it. And the Doctors commonly agree in this teaching.”

Among more recent writers, Card. D'Annibale (Summ., Vol. I. n, 340, edit. III.) expresses this opinion:

“In cases reserved by the Roman Pontiff either to himself or to Ordinaries, it is agreed that the reservation of the censure is principal and that of the sin accessory; wherefore, if anything excuses from the censure, the reservation ceases entirely. In those which Ordinaries have reserved to themselves, there is not sufficient agreement; the more common opinion holds that both reservations are equally principal, and consequently they think that, even if the censure is absent, the reservation of the sin remains; the less common opinion, which seems to me truer, holds that in these the law is the same as in censures reserved by the Roman Pontiff; and therefore, if the censure is not incurred, the reservation ceases.” And this view is sustained by Ballerini-Palmieri (Vol. V, n. 476, Edit. III).

The contrary opinion, however, is held as the better one by St. Alphonsus (loc cit., n. 581). For this view the following reasons are generally offered:

a. Papal and episcopal cases differ in this, that in the papal cases the censure is reserved principally and indivisibly; in episcopal cases the sin is reserved principally and per se, and the censure is attached to it.

b. This is confirmed by the words in which episcopal reservations are expressed in the table of reservations: "Casus reservati, quibus est adnexa excommunicatio."

c. The same is proved from the end of reservation, namely, that sinners should be more strictly bound, and that they should be deterred from sin by the double reservation.

But the answer to these reasons is not difficult.

As for the first reason advanced, it is certain that Canon Law does not back up the distinction; and moreover, the words in which the reason is expressed do not present an argument for it, but only state the opinion itself in another form.

To the second D'Annibale answers (loc. cit. nota 25) that the words used in expressing these reservations on the tables do not afford an argument: “for in law even land bound as a pledge is so called (L. 2, de Curat. furios. dan.), and things bound as pledges are so called (L. 22, de Jure fisci), and surely no one would say that the land or thing is accessory to the pledge.”

Finally it is not reasonable that for less serious crimes—and such are those reserved by bishops when compared with those reserved by the Pope—the reservation should be more strict than for graver ones. We conclude therefore that the opinion which holds that censures reserved by the bishop are on the same level in law as those reserved by the Pope, is not wanting in grave probability, both intrinsic and extrinsic. And in this case there were grounds enough and to spare for Caius to act on and absolve Titius.

But even if Caius wished to follow the view of St. Alphonsus that in episcopal cases the reservation remains even though the censure for any reason do not hold, he could still have absolved Titius.

For, in the first place, it is evident from the case that Titius was ignorant not only of the censure, but of the reservation also. Now although the more common opinion holds with St. Alphonsus (VI. n. 581) that ignorance of the reservation does not excuse, the opposite view is held by a number of theologians (Cf. Gury-Ballerini, De Sacramento Poenitentiae, n. 383).

In the second place, even disregarding the point just made, there are other features in the case which are in favor of Titius. He is in poor health, and can not go personally to the bishop, who lives a great distance away; moreover, since he is accustomed to receive Communion on Holy Thursday, he can not omit it without scandal and loss of good name, especially since his wife already suspects him of the incest. There is question, therefore, of a penitent who, though not in danger of death, is legitimately impeded from going to the bishop; and together with this impediment—brevis temporis apparently—there is an urgent reason why he should communicate. Now, as is evident from the answer given above to our first question, in such a matter of urgency Caius could absolve Titius saltem indirecte, with the obligation of going to the bishop or his delegate whenever circumstances would permit. I say saltem indirecte, according to the more common opinion, given by St. Alphonsus (VI, n. 585), and based on the statement of the Council of Trent (Sess. XIV, Cap. VIII) that ordinary priests have no power in reserved cases. But other theologians are of opinion that even in episcopal cases the absolution is always direct, even though the impediment be only brevis temporis. The passage from Trent cited by St. Alphonsus does not affect this, for it clearly supposes that there is ability to reach the superior authorities: “Outside that point, since priests have no power in reserved cases, they should endeavor to persuade penitents of this one thing: that they approach their superiors and lawful judges for the benefit of absolution.”

These theologians admit, however, that in such cases there remains upon the penitent the obligation of appearing before the superior, not indeed for Confession, but to receive from him a fitting punishment or salutary warnings; so that the onus put upon the penitent is practically the same.

Ad. 3. Just as Caius could have absolved Titus, so, too, the pastor could do it. Therefore his action, considered in itself, was right.

But his line of reasoning was wrong. For no confessor, even though he have faculties to absolve from Papal cases, can absolve validly or licitly in cases which the bishop has reserved, unless he has special faculties to do so. Clement X put an end to the controversies which were formerly aroused about this matter, especially with regard to the privileges of regulars, in the Constitution Superna, which declares:

“By the faculties granted to regulars of any order, institute, or society, even the Society of Jesus, through the Mare Magnum or other privileges, no power has been given them in cases reserved by the Bishop.... And those having the faculty to absolve from all cases reserved to the Apostolic See cannot on that account absolve from cases reserved to the Bishop.”

The pastor, therefore, has made a wrong application of the principle: "Qui potest plus, potest etiam et minus in eodem genere." This principle holds good when the more and the less are in the same proximate genus; for instance, if one have the power of dispensing in certain vows, he has the power of commuting the same. So also if he can absolve from papal cases reserved speciali modo, he can absolve from those reserved simpliciter. But papal and episcopal reserved cases, though coming under the same remote genus of reserved cases, are not in the same proximate genus.