Appendix I. On the Jurisdiction and Approval of Regulars

Regulars, by reason of privileges and immediate dependence upon the Supreme Pontiff, differ in several matters of jurisdiction from secular Priests. Hence:

557. • I say I. Regulars properly so called, or those who emit solemn vows and are endowed with the privilege of exemption ¹, and are therefore exempt from the jurisdiction of Bishops, receive jurisdiction immediately from the Pope for hearing the Confessions both of their own members and of secular persons. Hence is understood the jurisdiction granted to individual religious Priests, with the consent of their Superior being added ². This is established from Canon law, especially from the Decretal Super cathedram, from the Clementine Dudum de sepulturis, and likewise from other Constitutions which, although they were afterward modified, especially through the Council of Trent with regard to privileges, nevertheless remained unrevoked with regard to the substance of jurisdiction. - Thus commonly with Lugo, disp. 21, no. 4; Lacroix, no. 1552; Billuart, diss. 6, art. 6.

¹ The privilege of exemption does not of itself imply a delegation of jurisdiction immediately from the Supreme Pontiff; for the one can subsist without the other. In fact, however, all mendicant Religious, and those who by an indult of the Apostolic See have communication of privileges with them, are accustomed to receive jurisdiction from the Roman Pontiff through the prelates of their proper Order. Concerning this matter, a Religious of each Order should consult his own Constitutions and the privileges granted to his Order.

² Rather than consent, you would say a communication or delegation of jurisdiction.

I say II. Regulars receive from the Superiors of their monastery or Order approval together with jurisdiction for hearing the confessions of their own members; but for hearing the confessions of secular persons they receive approval from the Bishop of the place where the confessions are to be heard. The reason for the first is that the Council of Trent required the approval of the Bishop only for the confession of secular persons, and changed nothing in the ancient discipline with regard to the confessions of Regulars. The reason for the second is evident from the Decree of Innocent XII in the year 1700, by which it was decreed that Confessors, whoever they may be, both secular and regular, can in no way hear secular penitents without the approval of the Bishop of the place.... - See the things said at no. 538.

I say III. Regulars cannot confess, at least ordinarily, outside their own Order without the consent of their Superiors; indeed, even in the Monastery they cannot confess to anyone other than the one designated by the Superior himself. Those who dwell outside the Monastery, however, or are traveling, cannot confess except to a companion, if they have one who is fit; but if they do not have one, they can confess to any Priest, whether regular or secular. - These things are established from the privileges known to have been granted to all Religious Orders by Innocent IV and by other Supreme Pontiffs. - See St. Lig., no. 575; Lacroix, no. 1524; Laymann, etc. Recall also the things said above concerning the religious state, no. 174.

558. Resolutions. - 1. Although Regulars have jurisdiction from the Pope, nevertheless they have it bound with regard to hearing the confessions of secular persons, since for the validity of absolution the approval of the Bishop is required as a condition sine qua non.

2. A Bishop can grant approval to Regulars at pleasure without restriction, or with some restriction as to time, places, persons, etc.

3. If the Bishop expressly granted approval only for some transitory act, for example, for conducting some mission, the faculty received is considered to be valid only for that act and for every judgment then begun.

4. If the Bishop, or your Superior by his delegation, grants you approval for a determined class of penitents, the faculty cannot be extended to others, as is evident. But if the request for a faculty from the Bishop or from the Superior is general, and the concession was not restricted, the faculty obtained is not limited to the work which was the occasion of the request. Thus, for example, if you seek a faculty on the occasion of giving spiritual exercises to Nuns in a certain convent, by the same faculty received you can hear also the confessions of other faithful. The reason is that whatever is not excepted is contained in the concession. Except, however, reserved cases, which by law itself are never understood to be comprehended in a general faculty of hearing confessions ³.

³ Thus expressly Boniface VIII (chapter Si Episcopus 2, De Poenit. et Remiss. in VI): If a Bishop grants to his subject that he may choose for himself a fit confessor, the one whom he chooses has no power at all in cases which are specially reserved to that Bishop, since those things which someone would not probably grant specifically are not included in a general concession.

5. A religious missionary summoned by a Bishop to conduct a mission in his diocese by that very fact receives tacit approval for hearing confessions during the time of the mission for which he is summoned. The same must be said if he was requested by a Pastor or another Superior with the permission of the Bishop. Nevertheless, he is considered approved only for ordinary cases. Hence in practice recourse must always be had to the Bishop to determine the extension or measure of the approval ⁴.

⁴ This passage of the Author seems somewhat obscure; nor is it sufficiently evident whether he speaks of the mere extension of approval beyond the time or occasion of the mission, or indeed of the extension of the faculty also to reserved cases. Whatever the case, the counsel of approaching the Bishop is useful in either hypothesis.

6. When a religious Superior, by delegation of the Bishop, employs a subject for the general works of the sacred ministry, apart from the hypothesis of some special restriction, he is considered to grant him an unrestricted faculty for any penitents whatever and also for all the reserved cases contained in the episcopal concession. The reason is that he is considered to grant all that he can and is accustomed to grant, according to the aforesaid rule: Whatever is not excepted is contained in the concession.

559. Questions. - QUESTION 1. Can Regulars outside the house, when a fit companion is lacking, confess to a Priest not approved?

Reply. Affirmative, from the common opinion. But the Reply of the Sacred Congregation of the Council to the Bishop of Hildesheim, dated November 18, 1769, which could be opposed, is by no means contrary, since there is question there of Religious who had companions of their Order at hand, as is evident from the acts of the same Congregation ⁵.

⁵ Compare the things said above in the note at no. 174.

QUESTION 2. Can a Bishop without cause deny approval to Regulars?

Reply. Negative. For, Pignatelli says, Regular Confessors receive jurisdiction not from the Bishop, but from the Supreme Pontiff, and approval is required only as a condition so that jurisdiction can be exercised. Therefore Bishops cannot prohibit Regulars from absolving at some time.... (Consultationes canonicae, vol. 4, consult. 163).

560. • QUESTION 3. Can a Bishop approve Regulars with a limitation of time, persons, or places?

Reply. Affirmative. This is established from various Decrees of the Holy See. - See St. Lig., Hom. apost., tract 20, no. 103 at the end. Nevertheless, in approving Regulars the Bishop cannot prohibit them from hearing confessions at the Paschal season. This is established by a Decree of the Sacred Congregation dated September 22, 1668.

QUESTION 4. Can a Bishop revoke approval granted to Regulars?

Reply 1. He cannot revoke the approval of all Regulars of the same community without consulting the Sacred Congregation of Bishops. Thus from the Bull Superna.

Reply 2. The Bishop can, however, revoke the approval of individual Regulars considered individually, but only for a just cause concerning confession; and this holds even if the Religious was approved after a prior examination. Thus St. Lig., Hom. apost., tract 20, no. 103, clearly teaches from the same Bull.

561. • QUESTION 5. After approval SIMPLY granted, but without a prior examination, can a Bishop recall a Regular to an examination?

Reply. Affirmative, as it seems. For the Bull does not prohibit recalling to an examination without cause except Regulars approved after a prior examination.

QUESTION 6. Does a Regular once approved in some diocese need a new approval if, after changing his residence, he returns to the same diocese?

Reply. Negative. The reason is that one approved indefinitely and without limitation remains approved at least until an implicit revocation of the approval; but in the present case no revocation intervenes, not even an implicit one. Therefore, etc. - Thus Lacroix, no. 1541; Lugo, disp. 21, no. 44, with the common opinion.

QUESTION 7. Does a Regular approved in some diocese need a new approval in order validly to absolve if, after changing place, he passes through the same diocese?

Reply. Negative, because approval granted indefinitely and without limitation endures until revocation ⁶. - Lacroix, no. 1541.

⁶ Lugo aptly observes (De Poenit., disp. 21, no. 43) that by the very fact that a priest enters the territory of another Bishop, he begins to be a subject of that Bishop and to have him as his Ordinary in relation to hearing the confessions of that flock. But by the very fact that, by setting foot in that territory, he becomes a subject, he recovers the approval which he received before and has not yet lost through revocation. Compare the things said above in the note at no. 544.

562. • QUESTION 8. Does a Religious validly absolve secular persons by delegation of the Bishop, but without the knowledge of his Superior?

Reply. Affirmative. The reason is that the Religious already has jurisdiction from the Pope through his Superior; but once this has been received, it endures until it is expressly revoked. Moreover, the approval of the Bishop is possessed. Therefore nothing is lacking for that Religious validly and licitly to absolve. - Billuart and others.

563. • QUESTION 9. Does a Religious validly absolve when his Superior is unwilling, but by express delegation of the Bishop?

Reply 1. Negative, if the Bishop intended only to give approval and, moreover, the Superior is so unwilling ⁷ that he is considered to remove jurisdiction from his subject. The reason is evident. For then the Religious has jurisdiction from no one.

⁷ These things are not to be understood of just any Superior, but of the one who has power to constitute confessors according to the proper Constitutions of each Institute. Hence, if the Constitutions reserve this office to the Provincial Superior, it is manifest that the dissent of the local Superior, for example, of the Rector, Prior, Guardian, etc., cannot bring it about that jurisdiction conferred upon subjects by the Provincial ceases or is suspended.

Reply 2. Affirmative, however, if the Bishop intended also to confer jurisdiction, as is customarily done in present practice. The reason is that a Bishop can indeed confer jurisdiction upon a Religious, no less than upon a secular Priest, over his own sheep. For whoever enjoys ordinary jurisdiction can delegate it to any Priest. - Billuart, etc.

But that Religious would sin gravely against obedience, because in a grave matter he would transgress the precept of his Superior; nor in a case of this kind could he use the privileges which Regulars enjoy, for example, for absolving from certain censures. For a Religious receives a privilege of this kind only through the Superior himself, who by hypothesis grants no faculty to the subject ⁸.

⁸ These things are confirmed by a Declaration very recently issued by the Congregation of Bishops and Regulars (Acta ex iis decerpta, quae apud S. Sedem geruntur, vol. 1, p. 683). For the following doubts were proposed:

I. Whether a Religious not approved by his Superior according to the laws of his own Order, or when that Superior is unwilling, validly hears the confessions of secular persons with the faculty of the Ordinary alone.

II. Whether Regular Superiors having jurisdiction can suspend their subjects from hearing the confessions of secular persons even ex informata conscientia.

And, if affirmative, III. Whether a suspension pronounced orally and without writing is valid.

IV. Whether absolution imparted by one who is bound by such a suspension is valid.

To II. Affirmative; yet in such a way that the suspended Religious hears confessions illicitly, but not invalidly.

To III. Affirmative, since it is imposed after the manner of a particular precept.

To IV. Affirmative.

To V. Provided for in the preceding replies.

It is provided for in the preceding replies because, as the Reply to III has it, the suspension in the case is imposed not after the manner of a censure, but after the manner of a precept by which the subject is prohibited from hearing confessions. Hence the Editor rightly observes (loc. cit., p. 684) that the subject is disobedient, but not a violator of a censure, and consequently does not incur irregularity.

Moreover, the Declaration of the Sacred Congregation supposes that not only approval but also jurisdiction was conferred by the Ordinary of the place upon the Regular in question. Hence in the first question the careful expression with the FACULTY, not with the approval of the Ordinary, was employed. Therefore this Declaration detracts nothing from the COMMON opinion of the Theologians (see Struggl, Theol. mor., tract 11, q. 3, no. 30) that Regulars have jurisdiction from the Supreme Pontiff; this opinion we already saw above, no. 555, expressly confirmed by the Sacred Congregation of the Council. And hence it must be repeated that Benedict XIV (De Synod., bk. 9, ch. 16, nos. 7-8), although he disputes at length concerning the faculty of Regulars for administering the Sacrament of Penance, proves by many things the necessity of approval which Regulars must obtain from the Ordinaries of the places where they exercise the ministry; but he has not a single word concerning the conferral of the faculty or jurisdiction. And hence it must be repeated that the Doctors commonly teach that a Religious suspended by his proper Superior from hearing confessions imparts absolution neither licitly nor validly. See Laymann, De Poenit., ch. 10, no. 19. How this is reconciled with the Declaration just cited, you have in these words of Marcus Struggl (loc. cit., no. 32): It is inferred that the absolution of an exempt Regular Priest who, having been merely approved by the Bishop..., should hear confessions without any actual permission, either express or tacit, of his legitimate Superior, is invalid; because he would not yet have jurisdiction from the Supreme Pontiff, which requires the consent of the legitimate Superior as a condition sine qua non. If, however, the Bishop were at the same time to give his own episcopal jurisdiction to such a Religious, the absolution would be valid even if conferred against the positive will of the Superior. Meanwhile, however, the Regular by absolving in this way would sin lightly or gravely according to the measure of the disobedience and prohibition, as Sporer, no. 682, teaches with Tamburini.

Moreover, the faculties of this Religious in the case would not extend further than the Bishop can grant them by delegation. Therefore, even if the Religious belongs to an Order to which some special faculty has been granted by the Apostolic See, for example, to some mendicant Order which enjoys the privilege of absolving from Papal Cases (concerning which the Regulars themselves must now be consulted), nevertheless he would absolve invalidly from these. The reason is that he would possess a faculty of this kind only insofar as it were perhaps communicated to him by his Superiors. But in the case the Superiors grant him no faculty. Therefore.

V. And, if negative, whether one who attempts an absolution of this kind incurs irregularity.

The Sacred Congregation of Bishops and Regulars, after discussing the matter, replied on March 2, 1866:

To I. Affirmative.

QUESTION 10. Can Regulars without the approval of the Bishop absolve their servants or other members of the household dwelling in the monastery?

Reply. Affirmative, if these servants or other secular persons are as members of the household, that is, if they remain in the house day and night and are nourished there, so that they are continual table companions and live under the obedience of the Religious.

It is otherwise, however, if they are not so regarded, for example, if they remain only during the day and dwell elsewhere at night, as laborers, daily hirelings, farm workers, etc. Thus from the frequently cited Constitution Superna of Clement X, sect. 4: In monasteries, and also in colleges where life is lived according to regular institutes, both Regular Prelates and the Confessors of the Regulars of those monasteries or colleges can hear the confessions of those secular persons who are members of the household and continual table companions, but not of those who merely serve them. - See Lacroix, no. 1505.

564. • QUESTION 11. Can Regulars absolve resident students without the approval of the Bishop, as being members of the household?

Reply. A twofold opinion is given.

THE FIRST OPINION denies absolutely, because resident students are not members of the household as servants are. For servants are of the house and are therefore called domestics, because by service they are as it were incorporated into the household; but students pay money so that they may receive food, instruction, and education from teachers. - Thus Lugo (Respons. moral.). This seems to be established also from a Decision of the Sacred Congregation of Bishops and Regulars dated June 21, 1848, which was issued on this occasion. For the Bishop of Parma had issued a Decree that the Barnabites, or Clerks Regular of St. Paul, could administer the Sacraments of the Eucharist, Penance, and Extreme Unction to their resident students without any permission of the Pastor of the parish of the Holy Sepulcher, in whose territory the convent of the aforesaid Regulars was situated. But when the Pastor objected, the dispute was brought before the Sacred Congregation, which declared that the Decree of the Bishop was to be reformed.

THE SECOND OPINION very probably affirms. The reason is: 1. because where students or residents actually have complete dependence upon Regulars, they are already members of their household. Nor is it likely that the Fathers of the Council of Trent esteemed less the dependence which binds students to Regulars in respect of education than that which binds servants to them in respect of material service and wages, and consequently wished to bestow the benefit of household membership upon students no less than upon servants. Thus Pichler, Pellizzarius, and Schmalzgrueber. 2. Because several Regular Orders, such as the Benedictines, Theatines, the Congregation of Somasca, the Clerks Ministers of the Sick, etc., and even certain secular Congregations, such as those of St. Sulpice, the Holy Spirit, etc., possess the privilege of household membership for their resident students. But from the communication of privileges the other Regular Orders also obtain such a privilege. Therefore, etc.

This opinion has several Roman Theologians, and indeed most weighty ones, as patrons. Nor does the cited Decision of the Sacred Congregation in the case of Parma present an obstacle. For it is replied that it was given for a most special case and therefore is by no means to be extended to other cases ⁹.

⁹ This declaration of the Sacred Congregation has nothing to do with the present cause. For the dispute there was not concerning hearing the confessions of students without the approval of the Bishop (which cause, moreover, would have had nothing to do with the pastor), but concerning the rights of the pastor in the case of death. Add that the pastor relied upon custom in his own cause; hence this Declaration of the Sacred Congregation cannot be transferred to other cases lacking these circumstances, not even in that question concerning parochial rights in the case of death.

In practice this latter opinion is safe, at least if the Superior of the college or residence declares it. This is evident from the doctrine of St. Liguori concerning the communication of privileges, and also the interpretation of the privileges of Regulars. - Hom. apost., tract 20, De Privilegiis.