Article II. On Jurisdiction

Jurisdiction, taken generally, is a certain moral power of governing subjects. Ecclesiastical jurisdiction is twofold: one kind is in the external forum, and is the power of making laws, inflicting punishments, etc.; the other is in the internal forum, and is the power of absolving or binding in the tribunal of Penance.

We shall treat chiefly of the latter. It is also twofold, namely: 1. ordinary, which belongs to someone by reason of an office having the care of souls annexed to it; 2. delegated, which is given to another by one having ordinary jurisdiction.

545. Principles. - I. The power of jurisdiction is necessary for hearing confessions, nor does the power of Order suffice. The reason is that absolution is a judicial sentence which cannot be rendered except upon subjects. Subjects must therefore be assigned to the Confessor; but this pertains to him who has authority over those subjects. Moreover, this is altogether required for the right governance of the Church. For there would be the greatest inconvenience if the faculty of absolving were independent of those to whom it was said by Christ: Whatever you shall bind shall be bound...; whatever you shall loose shall be loosed. But it is established especially from the Council of Trent, sess. 14, ch. 7: Since, therefore, the nature and character of a judgment demand that sentence be rendered upon subjects alone, it has always been held as certain in the Church of God, and this Synod confirms as most true, that the absolution which a Priest pronounces upon one over whom he has neither ordinary nor subdelegated jurisdiction ought to be of no moment.

546. • II. Ordinary jurisdiction belongs: 1. to the Pope for the whole Church in each forum, for to him it was said by Christ in the person of Peter, Matt. 16:19: I will give you the keys of the kingdom of heaven. And whatever you shall bind upon earth shall be bound also in heaven; and whatever you shall loose upon earth shall be loosed also in heaven; 2. to the Bishop for his diocese, likewise in each forum, since it is committed to him so that he may rule and direct it; 3. to Pastors for their subjects in the internal forum; 4. to Abbots and Prelates of Regulars for their subjects.

III. Ordinary jurisdiction can be delegated, or exercised through another. The reason is that delegation is an act proper to ordinary power. Jurisdiction for hearing confessions, however, cannot be delegated except to a Priest approved by the Bishop, as is established from the things said above concerning approval. With regard to Pastors, the faculty of delegating has become almost useless, since Bishops, to whom it pertains to approve confessors, are accustomed to confer jurisdiction together with approval upon secular Priests, as was said in the note at no. 529.

IV. Delegated jurisdiction is granted by the Church to every Priest in a case of extreme necessity, or at the point of death ¹. It is established from the Council of Trent, sess. 14, ch. 7.

¹ This rule is somewhat stricter if the Author wishes to indicate when jurisdiction is delegated by the Church. See Question 2 below, where mention occurs of jurisdiction delegated apart from extreme necessity or the point of death.

V. Delegated jurisdiction for hearing confessions expires through revocation made by the Superior or through the lapse of the time fixed; likewise by the death of the one delegating or his cessation from office, if it was given for some particular person and judgment has not yet begun, or even if it was given generally but with the clause at the discretion of the grantor, at our pleasure, or another similar clause. - St. Liguori, nos. 558, 559; Scavini.

547. Questions. - QUESTION 1. Can delegated jurisdiction be subdelegated?

Reply. Generally speaking, negative, namely, unless there is added a special grant of the one delegating; and then it is considered to be subdelegated in the name of the one delegating. The reason is that the delegate has only that power which is granted to him; but only the power of exercising jurisdiction is granted to him, not of committing it to another, unless something else is expressed. Therefore, etc. Except if someone is substituted in the place of an ordinary Pastor with universal delegation, for example, in place of a deceased Pastor; or if someone is delegated for the whole class of causes. - St. Lig., no. 566, and others commonly.

548. • QUESTION 2. Does the Church supply jurisdiction when penitents invincibly do not know of its defect?

Reply. It must first be observed that a defect of jurisdiction can occur in diverse circumstances. For an error can be either common among the faithful or private to some person alone. Again, a Priest lacking jurisdiction can have a colored title, or only a presumed title. A colored title is a title indeed false in itself, but truly conferred by a Superior, and therefore bearing the appearance of a true title, although from some cause it labors under a hidden defect of nullity. Thus a Priest who is simoniacally appointed Pastor obtains an invalid title from Canon law; and if he was constituted in the parish by a legitimate Bishop ², he has a colored title. A merely presumed title, however, is one which is believed by the faithful to be present, although it does not exist. These things being established:

² It could happen that a merely colored title was possessed in the Bishop who institutes the pastor, for example, if he had occupied the see with a hidden vice of simony. To this pertains the third case in Statuimus 107, cause 1, q. 1, namely, that of one who is ordained non-simoniacally by a simoniac.

I say 1. The Church certainly supplies if the error is common among the faithful and is at the same time joined with a colored title. The reason is drawn from the common interpretation of the Theologians, resting upon diverse passages of law. For, as they say, the Church, as a pious mother, is deservedly considered to supply jurisdiction for the good of souls when she can do so ³. - St. Lig., no. 572.

³ This holds equally whether someone has ordinary or delegated jurisdiction. It holds, moreover, even if the Confessor knows that he does not have jurisdiction, for example, one who knows that the time of his approval has elapsed, or that by force of a sentence secretly intimated to him he has been suspended from hearing confessions.

I say 2. More probably, the Church also supplies if there is common error without a colored title, but with only a presumed or factual title. For the same reason presses as in the preceding case, since in this hypothesis also innumerable souls could perish. - Thus Suarez, Lugo, Lessius, Billuart, Bonacina, Diana, Henriquez, Pontius, etc.; and St. Lig., Viva, Elbel, Sporer, Roncaglia, Gobat, Holzmann, Herinx, Cardenas, Gousset, etc., consider this probable. Certain others contradict it, however, for example, Busembaum, Navarre, Sylvester, Cajetan, Ugolino, Covarruvias, etc.

I say 3. The Church is not considered to supply jurisdiction if the error is private, for example, if it is that of one or a few. The reason is that the Church is not considered to supply except by reason of the common good, namely, after the manner of a general provider or governor who attends only to the general good of society and leaves the good of private persons to the care of particular providers. - Thus the Theologians most commonly against a few.

549. • QUESTION 3. Is it lawful to absolve with doubtful jurisdiction?

Reply. Negative, unless some necessity urges. St. Alphonsus, no. 571, thinks that a necessity of this kind is present: 1. if the precept of annual confession urges; 2. if the penitent must celebrate Mass or receive Communion and otherwise would incur a mark of infamy; 3. if the priest is bound to celebrate from obligation.

QUESTION 4. Is it lawful to absolve with probable jurisdiction?

Reply. With St. Alphonsus, bk. 6, no. 573: The common opinion ⁴ teaches that it is lawful to absolve with probable jurisdiction, provided the opinion is truly probable, supported by grave reason and authority. Thus Sanchez, Lugo, who considers it most safe, etc.; and Sanchez, Tamburini, Cardenas, Dicastillo, Illsung, Gormaz, Stoz, etc., cited by Croix, bk. 6, part 1, no. 117, call it morally certain.

⁴ Of the three opinions which St. Alphonsus (loc. cit.) reviews concerning this matter, he places this one second. The first, which he attributes to Concina, Antoine, and Elizalde, denies that it is lawful, because from proposition 1 condemned by Innocent XI it is not lawful in the administration of the Sacraments to use a probable opinion, lest the sacrament be exposed to the danger of frustration. He wholly rejects this opinion (ibid.), however, and observes with Viva, Wigandt, and Gonet that the Proposition speaks of opinions concerning those things in which the Church can do nothing..., but not concerning jurisdiction, which can well be supplied by the Church; and it is presumed with moral certitude to be supplied in this case for the good of souls. To this pertain those words of Croix (bk. 6, part 1, no. 117): Whenever there is a probable opinion for jurisdiction..., it is the most common opinion with Suarez, Koninck, Filliuccius, Reginald, Lessius, Bonacina, Diana, and Aversa that even then the Church supplies..., if perhaps jurisdiction is absent. And Sanchez, Verricelli, Dicastillo, Tamburini, Cardenas, Arsdekin, Sporer, Gormaz, Stoz, and Laurentius say that this is safe in practice or morally certain.

** The VV., who devote no fewer than thirty-two columns (pp. 485-501) to attacking those things which are said here concerning this question, object first (p. 487) against this Note: 1. Concina vigorously maintains that it can by no means be presumed that the Church supplies; 2. the older authors cited by John Sanchez thought that the Church does not supply; 3. certain authors cited by the Salmanticenses deny that it is lawful to absolve if another endowed with certain jurisdiction is present; 4. not a few authors cited by Tamburini deny that the absolution is valid.

Reply. These things attack not the Note but directly the opinion of the holy Doctor Alphonsus; wherefore someone will not easily understand to what, finally, Vindications of the holy Doctor of this kind tend. But to the individual points:

To 1. Reply. Let it pass. If it thus pleases the VV., let them prefer vigorous Concina even to St. Alphonsus; we shall never fail to prefer the holy Doctor to Concina.

To 2. I deny the whole. The question which John Sanchez (disp. 44, no. 10), Garcia cited by Sanchez (De Benef., vol. 1, part 5, ch. 8, nos. 87 and 132), and Guttierez, Zerola, Sorbo, Rodriguez, Veia, Aegidius, and Vasquez cited by Garcia (In III Part., q. 93, art. 3, dub. 4) treat is this: Whether one approved by one Bishop is considered approved for any diocese whatever. Therefore, these things do not pertain to the matter. But further: the VV. themselves (loc. cit.) add that Garcia brought forward declarations of the Cardinals in aid of himself, which is most true, namely, concerning that question. For otherwise, how do the VV. not hesitate to reproach the holy Doctor Alphonsus also for handing down as certain this doctrine also, which the Sacred Congregations of Cardinals rejected? And here it must be added that John Sanchez (disp. 44, no. 4) handed down most expressly and without any limitation the doctrine which we propose here.

To 3. These things also are against St. Alphonsus, who, for example, adduces John de Salas for himself, and indeed deservedly, contrary to how the Salmanticenses cite him.

To 4. Do not the VV. see Lugo and Suarez numbered among those not few Authors? And do the things which we have before our eyes agree that we should believe that, according to the opinion of Lugo and Suarez, absolution in the case is to be considered invalid? Let us conclude: this method of plundering citations here and there, without adding whether they are brought forward well or badly, or to what end and in what sense by the Authors, contributes to nothing other than casting darkness over questions; and this certainly is not the office of those who wish to benefit science by their labors.

See the reasons in the same St. Alphonsus, who concludes from them thus: This custom therefore being established as certain, it is certain that it is lawful to administer the sacrament with probable jurisdiction; although he rightly observes that the Confessor, in absolving, would not absolve with only a probable opinion, but with one morally certain, not by direct certitude, but by reflex certitude.

St. Alphonsus proposes thus another opinion which he says that he follows, which, namely, teaches, as he says, that it is indeed lawful to administer this sacrament of penance with probable jurisdiction, but only when there is a cause of grave necessity or great utility, as Elbel ⁵ and Wigandt say, or a reasonable cause, as Suarez ⁶ and Sporer say. The reason for this limitation is that, although the Church in that case can well be considered to supply jurisdiction for the good of souls, nevertheless, when no just cause is present, she is not presumed to will to connive at the mere liberty of priests ⁷.

⁵ Elbel (Conf., XII, no. 311) does not require a cause of grave necessity, but a just and grave cause. He followed, namely, his own Marchant, whom he cites.

⁶ Suarez has nothing of this kind.

*** Here the VV., after filling two columns with texts of Suarez (p. 489), conclude: Since Suarez calls more certain, or at least more probable, the opinion that it is not lawful to administer the sacrament with probable jurisdiction and to expose it to the danger of frustration unless some grave or reasonable cause urges, etc.

Reply. I deny the whole. For Suarez (disp. 26, sect. 6, no. 9) has nothing of this kind, and concludes the disputation concerning this matter thus: Finally, if all these things are joined together, they produce sufficient moral certitude, so that it is therefore lawful to use a probable opinion in the use of this jurisdiction. But he introduces mention of a grave or reasonable cause only when he adds counsel, for he continues: Nevertheless, I would always admonish both ministers and penitents to use the more certain or at least the more probable way, unless some grave or reasonable cause urges. Where, then, is that assertion that the more probable opinion is that it is not lawful unless, etc.?

⁷ St. Alphonsus was the first, as it seems, who distinctly proposed this limitation of the preceding or second opinion, as he himself calls it, as a certain third opinion diverse from the second.

But if the matter is considered theoretically, this opinion, by the very fact that it is regarded as opposed to the second, ought perhaps to appear weaker. For if the preceding opinion, by his own admission, is common, indeed most common, and is held and called most safe and morally certain by Theologians of the first rank, what weight indeed can be given to the opposite opinion, which Marchant, with no one preceding him, introduced (vol. 1, tract 2, tit. 3, q. 4), and which Sporer (De Poenit., no. 718) finally fortified only by the aid of three false citations, namely, those of Francis Bardi, John Sanchez, and George Gobat, with a fourth likewise false citation of Suarez added in St. Alphonsus, who taught nothing of this kind?

And indeed, the weakness of this cause arises and is revealed from that same principle which is the foundation of the former most common opinion, namely, from the custom, in the words of St. Alphonsus, of almost all confessors of absolving with probable jurisdiction. Suarez testifies to this custom thus (De Poenit., disp. 26, sect. 6, no. 6): Nevertheless, it is arduous, and it seems to be CONTRARY EVEN TO THE CUSTOM OF GOD-FEARING MEN, to oblige all men to this, namely, that, if it can be had, a minister having certain and undoubted jurisdiction be chosen.

Cardinal De Lugo also testifies to the same custom thus (De Poenit., disp. 19, no. 34): THE PRACTICE OF PLAINLY ALL CONFESSORS has this, that they embrace probable opinions concerning absolution from censures by virtue of the Bull of the Crusade, a Jubilee, or another faculty; and thus they absolve, not imposing that before death they cause themselves to be absolved again by another who has certain power.... Since, therefore, from this common practice of all there follows a manifest danger for all penitents who, thinking themselves already absolved, no longer take care concerning absolution from that censure and would remain incapable of sacramental absolution, it must be admitted that the Church, on account of this common error, confers jurisdiction for preventing those harms, or certainly that those opinions upon which that danger is founded are not true.

But St. Alphonsus himself (cited no. 573) also has these things concerning a universal custom of this kind: In the Church there is a universal custom of almost all confessors of absolving with probable jurisdiction, as Suarez, Lugo, Cardenas, Arriaga, Diana, Croix, and all the other authors cited for this opinion commonly testify. But the common opinion of the Doctors establishes moral certitude concerning the aforesaid custom.

Moreover, behold the argument which St. Alphonsus himself draws from this (ibid.): This custom therefore being established as certain, it is certain that it is lawful to administer the sacrament with probable jurisdiction, since the custom itself furnishes jurisdiction, as Suarez, Navarre, Barbosa, Cardenas, Quaranta, and Pellizzarius teach; and they prove it from Canon law, etc. Suarez employs the same argument more briefly thus (loc. cit., no. 7): And it is confirmed from the universal custom of the Church, which is a sufficient sign of jurisdiction, as was said above. But it is the universal practice of the Church that priests safely use jurisdiction of this kind, namely, probable jurisdiction, in the administration of this sacrament.

This common and certain doctrine having therefore been established beforehand, whatever Sporer and Elbel, after their Marchant, constructed readily collapses of itself, as though, namely, the Church does not will to grant jurisdiction unless some cause of necessity or utility devised by them compels the use of probable jurisdiction, etc. For from the premises, jurisdiction follows the universal custom. But the universal custom, such as is presented to us by the most common opinion and such as already existed even before Marchant was born (as is evident from the testimony of Lessius, Suarez, Sanchez, etc.), never required that grave cause of necessity or great utility for the licit use of probable jurisdiction. Therefore Sporer and Elbel groundlessly introduced the fear that, if causes of this kind should perhaps be lacking, the sacrament would be exposed to the danger of frustration through defect of jurisdiction, and that consequently the use of probable jurisdiction would for this reason become illicit. But Marchant seems to have been driven astray by confusion between doubtful and probable jurisdiction; nor does he seem sufficiently to have observed that probable jurisdiction requires that a person, not rashly, but prudently, relying upon solid reason, judge that jurisdiction is not lacking to him.

There is added the reason which Suarez (loc. cit.) supplies. It pertains (he says) to the fitting and prudent governance of the Church that she not permit so necessary a Sacrament frequently to be uncertain and doubtful, however much it may exist under a probable opinion. To the same point likewise pertains what Croix has (bk. 6, part 1, no. 119), saying: It is certain that Christ instituted the Sacraments in such a way that He did not will their administration or reception to be morally impossible and odious to the faithful who would administer or receive them. Therefore it is certain that an administration or reception subject to excessive scruples or difficulties is not according to the institution of Christ; therefore, if there is no other way of avoiding such an administration or reception except that someone act according to an opinion that is merely probable, it is lawful to act according to it. And from this there is a twofold argument against that theory of Marchant. For who denies that the most common opinion, which does not require the condition introduced by Marchant, is more than probable? Therefore it pertains to the prudent and fitting governance of the Church (as Suarez says), and the institution of Christ requires (as Croix has it), that it be lawful to act according to it. Again: who does not see that the administration of the sacraments becomes subject to innumerable scruples and difficulties when, lest it be exposed to the danger of frustration, the degree either of necessity or of utility which is required for the use of probable jurisdiction according to this theory must also be weighed? But it pertains to the fitting and prudent governance of the Church that so necessary a sacrament not frequently be uncertain and doubtful; nor does the institution of Christ permit the administration of the sacrament in this way to become odious and subject to scruples and difficulties both for those administering and for those receiving it. Therefore.

And these things indeed, as I have said, if the matter is considered theoretically. For as regards practice, although with St. Alphonsus one might prefer that probable jurisdiction not be used unless some reasonable cause requires it, what George Gobat observes (Theol. Experim., bk. 7, no. 120) is most true, namely, that a cause of this kind is never absent. For probable opinions concerning jurisdiction generally turn upon faculties to absolve granted either by force of privileges, or by the indult of the Bull of the Crusade, or on the occasion of some Jubilee, etc. Hence this case generally occurs when (as the same Gobat says), after you have begun in good faith to hear a penitent, a doubt arises for you concerning one or another sin; and consequently when, unless you use this doctrine, the penitent would be compelled to repeat the confession before another. But, as is known, the burden of confessing the same sins twice has always seemed most grave to the Doctors, so much so that for this reason they excuse one from confession before Holy Communion, or at least from the integrity of confession. Therefore, even if you wish to follow the opinion of these few, a grave cause, indeed one graver than those which St. Alphonsus after Sporer considers reasonable and sufficient, will never be lacking to you.

** Finally, the VV. took it most ill that this third opinion of St. Alphonsus should therefore be called less firm, as though Marchant first introduced it, and indeed contrary to a doctrine which otherwise the holy Doctor himself acknowledges to have been held in the Schools as common, indeed as most common and most safe, and even as morally certain.

Accordingly, 1. they deny (pp. 490-492) that this opinion was first introduced by Marchant. 2. They deny that the citations by which Sporer fortified it are to be regarded as false. 3. They deny that the second opinion is to be regarded as most common, indeed even as common, when Marchant's limitation, and consequently St. Alphonsus's, is excluded. 4. Finally (pp. 494-496), they endeavor to strengthen St. Alphonsus's opinion by the opinions of certain Authors.

Reply to 1. In order to prove that St. Alphonsus's opinion did not first proceed from Marchant, the VV. cite Suarez, Reginald, and Coninck. But these citations conclude nothing. For 1. Suarez merely suggests counsel; he does not assert any necessity. See the preceding Note. 2. The same must be said of Reginald, who (bk. 1, no. 103), citing Suarez, merely intimates with him that it is fitting that one having certain jurisdiction be preferred to one having doubtful or less probable jurisdiction. 3. Coninck, however (De Poenit., disp. 8, nos. 41-44), disputes about jurisdiction that is strictly doubtful; but he does not touch in the least the question concerning jurisdiction which the Church supplies when a Confessor uses probable jurisdiction. And these things are manifest from the fact that at the end (no. 47, note 2) he warns that in the case the sins are to be repeated with a Confessor having certain jurisdiction. Therefore the credit for that new opinion introduced by Marchant must be reserved entirely to Marchant.

Reply to 2. The VV. produce two authors (p. 491) as though rightly cited by Sporer, namely, John Sanchez and Gobat. But 1. what they bring forward from John Sanchez has nothing to do with the matter, as was already shown in the preceding note. 2. Gobat (bk. 7, no. 114) acknowledges that he was led to regard the contrary opinion as probable by the number and weight of the Authors. But most of those authors are, of course, those whom we have already said were produced by John Sanchez (see the preceding Note) for an entirely different question, and therefore irrelevantly here. Therefore. Moreover, Gobat finally concludes (no. 117): Whence it follows that he does not sin in particular who absolves from a case which some, contrary to others, probably judge not to be reserved. Therefore Gobat too is wrongly produced as an adherent of Marchant.

Reply to 3. Cardenas, a contemporary of Marchant, wrote (disp. 2, no. 160): The most common opinion among the Doctors is that the Church supplies a defect of jurisdiction if perhaps that defect occurs while the Confessor uses a truly probable opinion. Therefore that doctrine was already most common before Marchant wrote. Therefore Marchant's opinion departed from a doctrine already most common.

Nor is this enough. Cardenas continues in the same place (no. 165), saying: It is the practice and custom IN THE WHOLE CHURCH that Confessors absolve on the basis of a... probable opinion concerning jurisdiction. To prove this he adduces (no. 166) these words from Suarez: It is THE UNIVERSAL PRACTICE OF THE CHURCH that priests safely use jurisdiction of this kind (probable jurisdiction) in the administration of this Sacrament; then (no. 167) these words from Lugo: This is the practice of all the faithful, and OF THE WHOLE CHURCH; then (no. 168) these words from Arriaga: Since, therefore, it is the custom of THE UNIVERSAL CHURCH safely to use jurisdiction probably presumed, the Church is considered tacitly to approve it; then (no. 169) these words from Diana: It is evident from the common opinion of the Doctors, and Confessors everywhere absolve with a probable opinion; and after he adds the testimony of Bonacina, he finally concludes (no. 171): And in this same manner ALMOST ALL THE THEOLOGIANS commonly speak. Whence thus: the most common doctrine and universal practice of the Church existed before Marchant introduced that opinion of his. Therefore, even apart from Marchant's limitation, that opinion is to be regarded and called altogether most common.

Therefore the more recent opinion of Marchant, and of St. Alphonsus after Marchant, has against it the most common opinion of almost all theologians and the practice of the universal Church.

Reply to 4. That pitiable band of Authors who later followed the footsteps of Marchant and Sporer detracts so much the less from the unanimous consent of the Schools, the more evidently it contradicts itself in giving the reason for that new limitation. Their reason, which St. Alphonsus also adduces (loc. cit.), is this: that the Church is not presumed, when no just cause is present, to will to connive at the mere liberty of priests. These words, according to Holzmann, Marchant, Sporer, Henno, etc., whom St. Alphonsus cites, signify that the Church then does not supply jurisdiction if the Confessor's opinion is false, and consequently that in the case the sacrament is exposed to the danger of frustration. But that general principle, namely, that the Church does not supply jurisdiction lest she connive at the Confessor's liberty, is considered utterly false by those same Authors when (as was observed in the Note with Suarez and Croix) harm to souls would follow from it. Hence Henno (De Poenit., disp. 8, q. 5, concl. 3), to the objection that the Church does not approve what she prohibits, therefore she does not give jurisdiction to him whom she prohibits from absolving, replies: She does not approve it as lawful, I concede; as valid, in favor of one invincibly deceived, I deny. And again: We will that the Church indeed sometimes supply the defect in favor of penitents, but never for the benefit of a putative or probable confessor. And again: Although the confessor knowingly doing this would sin, nevertheless the confession of the penitents would be valid. Hence St. Alphonsus also (bk. 6, no. 272): This reason by no means proves the point; for, granted that the Church denied jurisdiction of this kind to impious priests, it would not thereby be prevented that they... disseminate their errors; and conversely the faithful, on account of the invalidity of their confessions, would be exposed to an evident danger of perdition. Therefore, by the admission of these Authors themselves, it is false that the sacrament is exposed to the danger of frustration through defect of jurisdiction. Otherwise, surely no one would say that a priest sins who in the case follows an opinion which, as is manifest from the foregoing, is most probable, most common, most safe, and morally certain.

And let these things suffice for resolving the doubts of the VV. concerning the central point of the controversy; for to pursue every lesser matter with which the VV. fill those thirty-two columns must be regarded as useless labor and as bringing mere weariness to readers. They object, for example, that Marchant, contrary to what is said in the Note, properly distinguishes probable jurisdiction from doubtful jurisdiction. Reply: I deny the whole. For Marchant (loc. cit., q. 6), under the title of jurisdiction DOUBTFUL IN PRACTICE, treats of a priest who is perplexed in a practical doubt concerning jurisdiction. Hence he gives the example of a scrupulous priest who finds a man situated in danger of death and meanwhile remains doubtful in practice whether he has jurisdiction and can absolve him, and cannot resolve himself toward either side with respect to acting. These things, as is evident, do not pertain to the matter.

What pertains more to the matter is to observe that Marchant and his followers consider the use of probable jurisdiction lawful in nearly the same cases in which they consider lawful the use of jurisdiction that is strictly doubtful. Since among these cases they also mention danger of death, they truly seem then to have forgotten the doctrine of the Council of Trent, according to which any priest can absolve any penitents from any sins and censures. Moreover, the fact that these Authors require nearly the same causes for the licit use of probable and doubtful jurisdiction perhaps indicates that the conditions of this controversy had not been sufficiently perceived by them in every respect.

550. • QUESTION 5. Does a Vicar General have ordinary jurisdiction, so that he can delegate others to hear confessions?

Reply. The more common and true opinion affirms against a few. The reason is that the Vicar General, although appointed by the Bishop, does not have jurisdiction from the Bishop himself, but from the canon by which he is declared to constitute as it were one person with the Bishop. - St. Lig., no. 558.

QUESTION 6. Can heretics and excommunicated persons who are to be avoided ⁸ validly absolve in danger of death when another Priest is lacking?

⁸ It is proper here to understand also suspended, interdicted, and irregular priests, those degraded, schismatics, notorious heretics, and even apostates from the faith to Mohammedanism, for example, etc.

Reply. Affirmative. The reason is that all Priests can absolve at the point of death, as is established from Trent, sess. 14, ch. 7 ⁹, according to the things said in Principle IV. - See St. Lig., no. 560.

⁹ Thus the Tridentine Synod: 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.

With regard specifically to excommunicated persons, Cardinal Albitius (De Inconst. in fid., etc., ch. 18, no. 39) relates that a great controversy arose at Rome, some objecting for the negative opinion a Declaration of the Sacred Congregation of the Council which Fagnanus relates (In C. Quoniam, De Constit., no. 28). But although (Albitius says) the books and registers of the decrees of the Congregation of the Holy Council of Trent were sought with the greatest diligence, the said declaration could not be found. It must therefore be said that the aforesaid declaration was not made, or, if it was made, that it was expunged from the aforesaid books as contrary to the common opinion of the Theologians who wrote after the Council. And I know also that in the year 1682, during the Pontificate of our Lord Innocent XI, this opinion was debated in the Sacred Congregation of the Holy Office; and since some of the Cardinals followed the opinion of St. Thomas, it was brought back to the balance. The matter having been reported to the Most Holy Father, His Holiness in his prudence ordered that there be no debate over the said opinion and that it no longer be called into doubt.

St. Alphonsus, in the earlier editions of his Work (see the Bassano edition with the fictitious date Rome, 1757), since he had not yet learned what Albitius related, wrote concerning this matter (bk. 6, no. 560): The second opinion TO BE FOLLOWED denies it, and St. Thomas holds this, etc.; where he also presses the aforesaid Declaration mentioned by Fagnanus. He afterward learned from Collet the things which we have related from Albitius, and added them to the same paragraph together with the decree of Innocent XI; moreover, in the later list of retractations (no. 19) he retracted that former opinion. Nevertheless, he did not delete the word to be followed (through forgetfulness, as is evident). It has been useful to warn of this, lest anyone, reading only the beginning of that paragraph 560, as is the custom of those concerned merely with knowing the Author's opinion, wrongly embrace that opinion as though it were St. Alphonsus's.

The decree of Innocent XI is confirmed by the Constitution Apostolici muneris of Benedict XIV, where, declaring valid the absolution imparted by a Priest to an accomplice in a shameful sin, he draws the reason from the cited decree of the Tridentine Synod; this matter will recur later.

551. • QUESTION 7. Can a simple Priest absolve not only at the point of death, but also in danger of death?

Reply. Affirmative. The reason is that the necessity of the penitent is almost the same in danger as at the point of death. Moreover, it is established from Canon law that the point and danger of death are taken as the same. - St. Lig.

Danger of this kind is considered present: 1. in a dangerous illness; 2. in time of plague; 3. in a difficult childbirth; 4. in a grave surgical operation; 5. before a very dangerous voyage; 6. in battle, or in other similar circumstances. - St. Lig., no. 561.

QUESTION 8. Can a simple priest absolve a dying person even when an approved Confessor is present? Reply. The Doctors disagree among themselves; and St. Alphonsus (bk. 6, no. 562), after weighing the reasons for each opinion, finally gives his judgment in these words: Nevertheless, notwithstanding these things (namely, the arguments adduced by him for the affirmative opinion), I think that the first opinion (namely, the negative) should not be departed from, on account of the authority of the Roman Ritual (De Sacr. Poenit., near the beginning), where it is thus said: But if danger of death threatens, and an approved (note this) Confessor is lacking, any Priest can absolve from any censures and sins. Simple Priests can therefore absolve if an approved Confessor is lacking; therefore they cannot if an approved Confessor is present. Thus St. Liguori, who otherwise, although he called his own opinion most common, nevertheless expressly cites sixteen Doctors, and others tacitly, for the opposite affirmative opinion; to them nine others can easily be added from Lugo (De Poenit., disp. 18, no. 23), Diana (vol. 5, tract 8, res. 26, no. 3), Barbosa (De Off. et Potest. Ep., part 2, alleg. 25, no. 79), and the Salmanticenses (De Poenit., ch. 11, no. 29) ¹⁰. Moreover, those who follow the affirmative opinion do not deny the probability of the negative; and likewise those who prefer the negative freely concede the probability of the affirmative, either implicitly, when they call their own opinion merely more probable, or even explicitly, as do Lezana and Stephen of St. Paul cited by the Salmanticenses (loc. cit.), and Viva, Sporer, Elbel, and Cardinal De Lugo cited by St. Alphonsus (loc. cit.). Of these the last, that is, Lugo, surely a most weighty author, thus gives his judgment concerning it (De Poenit., disp. 18, no. 23) against Aloysius Turrianus, who had called this opinion improbable: Whence it is established that Luis Turrianus went too far in censuring this opinion by saying that this opinion is improbable.... Certainly it cannot be denied that an opinion held by so many and such weighty Doctors is probable, especially since it is founded upon the words of Trent, which cannot easily be explained by the adversaries ¹¹.

¹⁰ Thus at least twenty-five Doctors can be produced who follow the opposite opinion. This agreement of Doctors proves that the argument sought from the Roman Ritual in this matter is not of invincible strength. For it cannot be supposed that this text was unknown to so many Doctors; yet those who adhered rather to the negative opinion considered the affirmative no less probable on that account. And indeed, although there are several things also in the Roman Ritual which pertain to defined doctrines, nevertheless some things are found concerning which freedom of disputing in the Schools is granted by the Church to the Doctors. Indeed, although Cardinal De Lugo gathered arguments sought from every side by which he might fortify that same negative opinion which he had adopted, he does not mention this reason at all.

** Against these few lines the VV. oppose no fewer than twelve columns (pp. 501-506). But to what end? They contend for two points, namely: 1. that St. Alphonsus rightly and deservedly called most common the opinion which he follows, although at least twenty-five Authors can be cited for the opposite; 2. that the principal argument for the same opinion is very rightly sought by the holy Doctor from the Roman Ritual.

Reply. As regards the first, let it suffice to observe two things briefly. And 1. indeed I truly fear that this manner of disputing by the VV. may perhaps recall to the minds of readers that saying (Deut. 25:13): You shall not have diverse weights in your bag.

And indeed let the reply be recalled here which the VV. made to those objecting that St. Alphonsus had against him the most common opinion of the Doctors when, namely (see above, no. 549, Question 4, with the Notes), he condemns with Marchant the use of probable jurisdiction unless some necessity or grave cause urges. The VV. replied in these words (p. 490): But in truth the opinion that this is lawful (namely, to absolve with probable jurisdiction) indiscriminately, without any necessity or reasonable cause, is by no means common, and much less most common, as will be evident from the following Article. But what, finally, do they bring forward in that Article of such great weight that the opposite opinion cannot be called most common, or even common? Besides Marchant, Sporer, and Elbel cited by St. Alphonsus, they themselves add the names Collet, Gonet, Henno, Holzmann, Billuart, Amort, Cuniliati, and Croix; for it has already been shown (loc. cit.) that Suarez, Reginald, Gobat, Coninck, and John Sanchez are vainly drawn by them to that side. But if that small band of authors could sufficiently enable the VV. to deny that an opinion should be called most common, or even common, which otherwise most weighty Doctors (as we saw loc. cit.) testified to be most common and vigorous in the universal practice of confessors, what reason is there for their now contending that an opinion should be called most common against which not a few, but at least twenty-five Authors stand, and which one author, as it seems, St. Alphonsus, called most common? Would anyone by an altogether less equitable right invoke here the saying: You shall not have diverse weights?

The VV. insist (p. 503) that it must be observed before all else that Doctors are not to be counted arithmetically, but weighed, and that the negative opinion (that of St. Alphonsus) is held and defended by almost all the more illustrious Doctors.

Reply. To say nothing now concerning this very recent canon according to which an opinion is or is not to be regarded as common or most common, will not that saying again recur to the minds of readers: Weight and weight, measure and measure? For did that very small band of Authors, which they themselves opposed to the most common opinion of the Doctors, consist of the more illustrious Doctors, or did they not rather oppose it to an immense company of the more illustrious?

Moreover, to add the second point here, as we said, it was not without cause written in the Note that AT LEAST twenty-five stand for the opposite opinion; for these were collected only from St. Alphonsus, Lugo, etc., and others could easily be added. But to settle the matter more briefly, it will be useful to learn from the testimonies of the Authors what, finally, is the true state of this controversy. Behold Reiffenstuel writing thus (tract 4, dist. 4, no. 33): MANY deny it... nevertheless MANY other Doctors consider the opposite probable. And Stoz (bk. 2, q. 2, no. 52): But MANY of the ancients and VERY MANY of the more recent teach the contrary opinion (from which, namely, St. Alphonsus departs). And Clericatus (De Poenit., decis. 37, no. 28): There are on each side probable opinions because of the reason and the MULTITUDE OF DOCTORS CONTENDING FOR EACH. Do these things leave room for either of those opinions to be called most common?

But now to the second head, namely, the force of the argument which St. Alphonsus takes from the Roman Ritual for his opinion. The VV. indeed (pp. 504-505) are wholly occupied in seeking the reason why no one used this argument, although so many Authors of every age touch upon this question; and they give as the reason that some wrote before the publication of that Ritual by command of Paul V, while others did not see that the same argument had been proposed by anyone.

Reply. It ought indeed to seem grievous to dwell upon these absurdities. First, does not St. Alphonsus urge that the things said in the Ritual concerning the absolution of a dying person had been established according to the approved usage of antiquity? Why, then, do the VV. present those things as unknown to Theologians before the edition published under Paul V? Moreover, does not St. Alphonsus add in the same place another argument taken from the Catechism of the Council of Trent? Will the VV. also grant that this catechism was a monument hidden from the eyes of all theologians? Rather than portray all theologians as though blind, or as strangers in a matter most familiar, let us both judge and acknowledge what the thing itself proclaims: neither did those who preferred the opinion afterward adopted by St. Alphonsus find anything in these monuments which they thought could bring any support to the cause defended by them; nor, again, did those who stood for the opposite opinion perceive in the same monuments any difficulty from which they judged that their own opinion had to be extricated.

Moreover, a fitting reason is not lacking why both the Ritual and the Catechism said that in those circumstances a simple priest can hear a confession and impart absolution if the proper priest or another approved priest is lacking. They indicate, namely, when a simple priest may exercise that ministry not only validly but also without any notoriety or astonishment among the faithful. For who does not know that it is altogether foreign to the custom of the faithful, who are generally ignorant of these matters, that they should employ as confessor one whom they know has not yet been deputed to that ministry? Does not Benedict XIV also excuse from the crime of an accomplice the priest who hears the confession of an accomplice for this reason, that another not yet approved cannot be summoned without astonishment? There was therefore a reason why that circumstance should be indicated, namely, when a simple priest could not be called by others to hear a confession, or present himself, without notoriety and astonishment. This astonishment, indeed, has already begun to cease, after the scarcity of priests has caused pastors who somewhere have no other assistant except one not yet approved not rarely to be accustomed to employ him to assist the sick and consequently to absolve them sacramentally at the opportune time.

To what was said in the Note, that those who hold the negative opinion do not deny the probability of the affirmative, the VV. object (p. 505) that very few among the older authors are found to do so, while the more recent assert it only insofar as a grave cause is present.

Reply. St. Alphonsus also mentions Viva, Sporer, Elbel, and Lugo, whose most lucid words Gury also related in the text: Certainly it cannot be denied that an opinion held by so many and such weighty Authors is probable, especially since it is founded upon the words of Trent, which cannot easily be explained by the adversaries. And in these words indeed you have solid foundations of probability, namely, the grave weight of authority (so many and such weighty Authors) and a firm reason (the words of Trent, which cannot easily be explained by the adversaries). Moreover, are not two others cited by the Salmanticenses, Lezana and Stephen of St. Paul, added to those four? Do not the VV. themselves add (loc. cit.) Palaus and Trullench? Furthermore, Reiffenstuel, Clericatus, and Stoz have been cited above on this same matter. To these can also be added Caspensis (in Mastrius, disp. 21, q. 9, art. 1, no. 204), Babenstuber, who (part 6, disp. 6, art. 1, no. 8) calls it very probable, Giraldi, who (tract 7, ch. 13, no. 18) writes: It cannot be denied to be very probable, Marchant, who (tract 2, tit. 1, q. 3, concl. 5) says: I would not wish to derogate from this opinion so as to deny that it is probable, Catalani, who (part 3, q. 6, ch. 13, no. 8) writes: I do not deny the probability of the affirmative opinion, and Mendo, who (Epit., word Confessio, no. 12) consents to the same. To these add also those who (as the VV. themselves say) call the negative opinion merely more probable. Therefore, lest we inquire further in vain, do not these things suffice so that it can truly be said that even those who prefer the negative opinion do not deny the probability of the opposite?

¹¹ The same Lugo, with regard to the negative opinion which he himself otherwise prefers, observes (loc. cit., no. 25) that the principal foundation for it is taken by some (in fact most of them) from the end of the concession, which was to come to the aid of the necessity of the faithful; this certainly seems to cease when an approved Confessor is present. This reason, however (he continues), in my judgment would not suffice to separate the universality of the words (namely, of the Council of Trent) and the absolute concession which the first opinion (namely, the affirmative) brings forward for itself. For the necessity of the faithful could have moved it to grant the faculty with that whole breadth.

He himself, however, seemed to find a firmer foundation in this, that the Synod had said that this had always been observed in the Church: as though, namely, it had not always been the custom in the Church that, when a Prelate was present, an inferior priest could absolve a dying person from reserved sins. But, with due respect to so great a man, these things seem directly to conflict with the words of the Synod itself, which expressly testifies (sess. 14, ch. 7) that it has always been observed in the same Church of God that THERE IS NO RESERVATION AT THE POINT OF DEATH. But where there is no reservation, the question who has the faculty over reserved sins is plainly superfluous.

It must be observed, moreover, that before the Tridentine Synod the approval of the Ordinary was by no means necessary for hearing confessions. This alone, therefore, was required: that jurisdiction be conferred by the Bishop or Pastor, either directly, when some priest was designated to hear confessions, or indirectly, when the faithful were given the faculty of choosing some priest as Confessor. Hence, since according to the testimony of the Tridentine Synod it had always been observed in the Church of God that at the point of death any priest could absolve any penitents from any sins and censures, the matter comes to this: jurisdiction was considered to be granted to any priest in that case, and consequently the penitent could choose any priest. But, as we have said, no approval of the Ordinary was then necessary, and consequently there could be no distinction between approved and unapproved priests. Therefore the hypothesis is empty by which it is imagined that, from the custom of those times, an approved priest was to have been preferred to an unapproved one at the point of death.

552. • QUESTION 9. Can a Pastor summon a Pastor of the same or of a different diocese to hear confessions in his parish?

Reply 1. As regards a Pastor of the same diocese, although by force of his office he has special jurisdiction only for his own parish, nevertheless, by an almost universal custom, he can hear confessions throughout the whole diocese also, unless the Bishop decrees otherwise. The proper customs of places, however, must be consulted.

Reply 2. As regards a Pastor of a different diocese, diverse opinions are given, as Benedict XIV says (Instit. 86, no. 7). Those who affirm argue from Trent that a parochial benefice serves for universal approval. Others deny it; their opinion, St. Lig. says (no. 544), receives strength from a Reply of the Sacred Congregation of the Council dated December 31, 1707. - Benedict XIV admits the first opinion in those places where such a custom exists.

553. • QUESTION 10. Can a Priest approved by the Bishop hear the confessions of the faithful without the permission of the Pastor?

Reply 1. As regards liceity, negative, if confessions are heard in a Church subject to the Pastor. The reason is that due order altogether requires that, since the Pastor is the immediate Superior in his Church, permission to exercise sacred ministries there be sought from him. The Pastor's permission is not required, however, for hearing confessions in a chapel of regulars or nuns; the permission of the local Superior or Superioress suffices. Reply 2. As regards validity, it is certain according to all that the permission of the Pastor is not required outside the case of annual confession. Indeed, it is not required even for annual confession, at least of itself, or by common law. This is established from the common doctrine of the Theologians against certain persons, and also from the present custom and universal practice of the Church, as Benedict XIV testifies, Instit. 18. But if somewhere this custom does not prevail, the confessions are nevertheless to be regarded as valid unless the Bishop expressly contradicts it; for if he is silent, he seems to consent to the universal custom of the Church ¹². - Gousset, no. 478.

¹² John XXII (C. Vas electionis, Extrav. De haereticis) condemned also this article of John of Pouilly, Doctor of Paris: The decree Omnis utriusque sexus remaining in force in a General Council, the Roman Pontiff cannot bring it about that parishioners are not bound to confess all their sins once a year to their proper priest.

Launoy revived the condemned error; and when this opinion, hostile to peace, had begun to infect pastors in France, Clement VIII in the year 1592 issued this decree (in Benedict XIV, Inst. 18, no. 7): We decree that both the said Friars... and the other aforesaid privileged persons to whom this has been granted by the Apostolic See, provided they are fit and approved by the Ordinary, may lawfully confess their sins, even at the Lenten and Paschal seasons and at any other time....

And Clement X (Const. Superna, sect. 4, no. 5) decrees and declares that Regulars once approved can, in the diocese of the approving Bishop, at any time of the year, even the Paschal season, hear the confessions even of any sick persons without any permission of the pastors or the Bishop...; and that those who have confessed to the said simply approved Religious at the Paschal season have satisfied the Constitution which begins Omnis utriusque sexus, with regard to confession alone.

As regards the hypothesis mentioned by the Author, however, of a Bishop contradicting it, there exists in Pignatelli and Pitonius (De Confess., no. 36) a Declaration of the Sacred Congregation dated April 5, 1584, expressed in these words: The decree of a Bishop in which it is stated that no Confessor, even one approved by the Ordinary, may hear the confessions of anyone during the Paschal season without the permission of the proper pastor is in no way to be observed.

554. • QUESTION 11. Does a delegate validly and licitly absolve after the expiration of the term of a delegation to be renewed annually, for example, if a crowd of penitents should come together for some great solemnity?

Reply 1. Of itself he absolves invalidly, that is, by reason of jurisdiction, because in fact he has none. Nevertheless, more probably he absolves validly by reason of common error, on account of which the Church is considered to supply for the good of souls.

Reply 2. Of itself the Priest sins gravely if he knowingly does this. The reason is that he exercises the office of Confessor without legitimate authority; and although the Church then supplies, he is nevertheless guilty because he improperly compels her to supply.

QUESTION 12. Can a Priest approved in some place hear the confessions of travelers arriving there? Reply 1. Affirmative absolutely as regards Regular Confessors, who have this special privilege from the Holy Apostolic See. - See the Constitution Superna of Clement X ¹³.

¹³ And in the Constitution Inter cunctas of Paul III to the Fathers of the Society of Jesus: Those of you who are priests may hear the confessions of any of Christ's faithful of either sex coming to you from anywhere, etc.; this privilege is established to be common also to the other Mendicant Regulars.

Reply 2. Affirmative also as regards secular Priests. The reason is that such is the custom, having force from the tacit consent of the Ordinaries, which is equivalent to present ratification. - Thus more commonly the Theologians and Canonists. - See St. Lig., no. 569.

555. • QUESTION 13. Can a Bishop under pain of invalidity prohibit his diocesans from going outside the diocese to confess?

Reply 1. Negative, if they go outside the diocese to confess to Regular Confessors, who have the privilege of hearing the confessions of all the faithful coming from anywhere. - Suarez, De Relig., tract 10, bk. 9, ch. 2, no. 8; Reiffenstuel, tract 14, dist. 8, q. 1, no. 11; Laymann, bk. 5, tract 6, ch. 10.

It is confirmed by a Declaration of the Sacred Congregation in Fagnanus, on the chapter Omnis utriusque sexus, no. 79, where it has this: The Sacred Congregation declared that Regulars within the diocese of the approving Bishop can also absolve penitents of another diocese, since they have jurisdiction from the Pope..., whose jurisdiction is not restricted to the limits of any territory, but the whole world is his diocese.

Reply 2. Affirmative, if they confess in another diocese to secular Priests. The reason is that, as Fagnanus says, by common law no Priest can absolve a penitent not subject to him, even in that diocese in which he is approved; nor can the tacit consent of the Bishop of the penitents be supposed in the case, since by hypothesis he is unwilling ¹⁴.

¹⁴ In this sense Palaus, Lugo, the Salmanticenses, Bonacina, Suarez, Vasquez, etc., are to be understood, whom St. Alphonsus (bk. 6, no. 569) cites as limiting the faculty granted to travelers of confessing to any approved priest of the place in which they are found by this condition: provided that they do not deliberately depart from their own domicile in order to confess elsewhere. And since those Doctors speak in this sense, what St. Alphonsus with Tamburini and Mazzotta urges against them cannot be admitted, that it is a general rule of law that no one is considered to act fraudulently who uses his own right. For there is no right of confessing outside the diocese against the will of one's proper Ordinary; nor can a contrary custom be introduced, because of that Constitution (C. Si Episcopus 2, De Poenit. et Remiss. in VI): Nor can it be introduced by any custom that someone, apart from the permission of his Superior, may choose for himself a confessor who can loose or bind him.

The Doctors give this most lucid reason for that Constitution: a custom of this kind is repugnant to divine law, which establishes that no one can be loosed or bound except by his proper judge. Thus Suarez (De Poenit., disp. 27, sect. 3, no. 5): It is replied that to choose a confessor without the permission of one's proper Bishop is repugnant to divine law; and therefore the Pontiff (Boniface VIII) signified in that text (C. Si Episcopus) that custom cannot prescribe against this law; in which this custom differs greatly from any other human law. You have the same from Dominic Soto (In IV, dist. 18, q. 4, art. 2, concl. 1), Vasquez (In III Part., q. 93, art. 2, dub. 2, nos. 5-6), and, omitting others, from Melchior Cano, who (Relect. De Poenit., part 6) completes the matter briefly thus: It must be held as established that the precept of confessing to one's proper priest is divine.... Therefore without a commission of this kind (delegation of the Ordinary) an alien priest is not the minister of this sacrament; and consequently by divine law we are bound to confess to our proper priest. For a confession which is made to another by the faculty of the proper priest is considered to be made to the proper priest. And hence he repeats that it cannot be introduced by any custom that someone may choose for himself a confessor apart from the permission of his Superior, etc., as the cited chapter Si Episcopus has it. For, as Cano adds, If it were only of positive law, some custom could prevail. And (note well) he concludes: All the scholastic Authors agree in this opinion, and therefore Blessed Thomas, etc.

** The interpretation of St. Alphonsus's mind which is appended at the end of this Note ought surely not to have seemed gratuitous. For the text of the holy Doctor (bk. 6, no. 569) has thus: The Doctors commonly teach that travelers, in view of custom and the tacit consent of the Bishops, can confess to any approved priest in the place where they are found. Thus Palaus, Lugo, Concina, the Salmanticenses, Bonacina, with Suarez, Vasquez, etc. The aforesaid Authors nevertheless limit this: provided that the travelers themselves do not deliberately depart from their own domicile in order to confess elsewhere. But Tamburini, Renzi, and Mazzotta, with Pontius, Filliucius, and others, say more truly that the aforesaid limitation need not necessarily be observed, from that general rule of law that no one is considered to act fraudulently who uses his own right; nor, moreover, is it established from elsewhere that the Ordinaries have ever given any sign of their dissent in the aforesaid case. As though he said: The common opinion is that travelers, in view of the consent of the Bishops and custom, can confess, etc. But it in no way appears that this consent is lacking even if travelers deliberately depart in order to confess elsewhere. Therefore the aforesaid limitation of the Doctors need not necessarily be observed, etc. Therefore a sense foreign to St. Alphonsus's words was not gratuitously attributed to him in the Note.

This one thing perhaps remained: that in the Note itself it should have been indicated more expressly that the holy Doctor does not altogether seem to have grasped the sense of the aforesaid limitation among the Authors cited, as though, namely, they considered invalid the confession of a traveler confessing outside the diocese even when no indication of dissent by the Ordinaries appears. For an abnormal opinion of this kind is entirely foreign to their mind; and therefore it was said in the Note that they are to be understood as speaking of those confessing outside the diocese against the will of their proper Ordinary. That point was omitted because it was already sufficiently clear from the entire context of the Note.

But behold, the VV. protest (p. 508) that these are not the sentiments of the holy Doctor; for (they say) those words, the Ordinaries have never given any sign of their dissent, are not those of St. Alphonsus, but of Tamburini, whose opinion the holy Doctor adduces.

Reply. I, however, would never consider it lawful for me to write these things concerning St. Alphonsus. For if we believe the VV. here, the quoted words are so far from being attributed to St. Alphonsus that the holy Doctor rather rejects them, as expressing an opinion rejected by him. But who, I ask, could so deny trust to his own eyes as to admit these things? Is there even the slightest indication in the cited text of the holy Doctor that he does not admit, but rather rejects, that final part of the opinion? Indeed, does he not adopt the entire opinion of those Authors as his own (they say more truly, he says), and oppose it to the preceding opinion, which imposed the limitation rejected by him? All the more because he does not there report the words or text of Tamburini, as the VV. suppose to the contrary, but expresses in his own words the sentiments which are common both to Tamburini and Mazzotta and Filliucius, and even to Pontius (in Tamburini, bk. 5, ch. 4, sect. 3, nos. 11 and 12), all of whom expressly suppose that the consent of the Ordinaries is not lacking.

But the reason which moved the VV. here to distort the opinion of the holy Doctor in this way is not obscure. For elsewhere, as we shall see, the holy Doctor has certain things which in the case exclude the consent of the Ordinaries, and therefore directly contradict the obvious sense of the text cited above, which supposes the consent of the Ordinaries to be necessary.

Nor, however, do the VV. thus sufficiently consult the honor of the holy Doctor. For either they contend that even in the cited text the holy Doctor wished, against the common opinion of the Doctors, to exclude the necessity of the consent of the Ordinaries; and besides the fact that they openly do violence to the words of the holy Doctor, they furthermore represent St. Alphonsus as a man who, in order to exclude the necessity of consent of this kind, irrelevantly and altogether incongruously objects against the adversaries that doctrine of the Authors which professes that consent to be altogether necessary. Or they concede, as the context requires, that the holy Doctor, with the Authors whose doctrine he adopts, supposes the consent of the Ordinaries to be necessary; and thus the charge of contradiction cannot be avoided in any way.

1. But now let us approach the principal point of the controversy. Although the VV. could produce no text of St. Alphonsus in which the holy Doctor affirms that absolution is valid if someone, against the will of his proper Ordinary, seeks it from a Confessor outside the Diocese, they nevertheless bring forward another passage of the holy Doctor (p. 511) from which they might deduce this, namely, where St. Alphonsus denies that absolution is imparted to visitors from the consent of their Ordinaries. For the holy Doctor has thus (bk. 6, no. 588): Travelers, according to the present custom..., namely, because they are absolved everywhere by any approved confessor, are today no longer absolved by the will of their Bishops, but by the will of the Church, which, by approving such a custom, has granted the faculty that they be regarded as inhabitants of the place where they confess. And indeed from this principle laid down that consequence follows of itself. For the confession made to an alien priest would therefore be considered invalid because, if the proper Ordinary absolutely resists, he assuredly does not communicate jurisdiction to the alien priest. But that principle of St. Alphonsus supposes that jurisdiction is possessed from elsewhere, and not from the proper Ordinary of the penitent. Therefore the reason why that confession should be considered invalid ceases.

To defend this new opinion of St. Alphonsus, the VV. attempt to establish three things: 1. that St. Alphonsus rightly relies upon custom; 2. that the Constitution of Boniface VIII cited above in the Note presents no obstacle; 3. that it is falsely affirmed that jurisdiction must be given by the Superior of the person who is to be absolved.

Since this concerns the supreme principles by which the whole economy of interior jurisdiction, or jurisdiction of the internal forum, is governed, it is fitting to dwell somewhat more laboriously upon these matters, and at least in part to supply those things which were otherwise omitted for the sake of brevity. See the Note at no. 573 in the edition of 1869.

2. And to begin with the last point, upon which all the others in reality depend, the VV. (p. 526) do not hesitate to place this title over their article (art. 1, q. 13): The distinguished Professor improperly asserts as an axiom the doctrine held among all, that jurisdiction must be given by the Superior of the person who is to be absolved.

Reply. If, in order to defend this new theory of St. Alphonsus, it is necessary to deny the doctrine that jurisdiction must be given by the Superior of the person who is to be absolved, this indeed ought to be sufficient for judging in what place this new theory can and ought to be held.

And indeed jurisdiction is defined as power over subjects; but he is called a Superior who has this power ordinarily, that is, by reason of Office, and can give or delegate it to others. I ask: since no one gives or can give what he does not have, who besides the Superior can give that power or jurisdiction?

3. Nor indeed is there question here of mere tenets of the School. It is a decree of the Council of Florence: The minister of this sacrament is a priest having authority to absolve, either ordinary or by commission of a Superior. How, then, will an authority to absolve now be thrust upon us which is neither ordinary nor committed by a Superior?

4. It is a decree of the Council of Trent (sess. 14, ch. 7): Since the nature and character of a judgment demand that sentence be rendered upon subjects alone, it has always been held as certain in the Church of God that the absolution which a priest pronounces upon one over whom he has neither ordinary nor subdelegated jurisdiction ought to be of no moment. Whence thus: it is essential that sentence be rendered upon subjects alone; otherwise absolution is of no moment. But he has no subjects who has no jurisdiction, either ordinary or subdelegated, that is, committed by a Superior. How, therefore, will anyone infer a jurisdiction for absolving which is neither ordinary nor handed down by a Superior?

5. Since, moreover, this (as the Tridentine Synod has it) has always been held as certain in the Church of God, hence that saying of Innocent III in the Lateran Council (chapter Utriusque sexus 12, De Poenit. et Remiss.): If anyone, however, for a just cause wishes to confess his sins to an alien priest, let him first seek and obtain permission from his proper priest, since otherwise the latter cannot absolve or bind him. And since by the name proper priest here can be meant only one who has ordinary power, because only one who possesses ordinary jurisdiction can give permission, that is, delegate jurisdiction (with respect to each of the faithful, however, three persons subordinated to one another possess this ordinary power, namely, the proper Pastor, the proper Bishop, and the Roman Pontiff), therefore it is necessary that whoever does not have ordinary jurisdiction, who is here called an alien priest, obtain it from one having ordinary jurisdiction, that is, from a Superior. How, then, can anyone produce a jurisdiction which some priest has not received from the Superior to whom the subject belongs?

6. Nor is there reason for anyone to remain uncertain concerning the sense of those words, let him first seek permission, etc. For permission to confess to an alien priest, just as also the faculty of choosing a confessor, or the faculty of subjecting oneself to an alien priest, or to commit one's subject to another, and other modes of speaking of this kind, signify, as is most well known, the delegation of jurisdiction. St. Bonaventure (In IV, dist. 17, part 3, art. 1, q. 2) expressed it in these words: To commit to another one's own right and the power of absolving. St. Thomas, however: To commit those things which belong to jurisdiction, as he has (Suppl., q. 8, art. 6, ad 1): Someone can use the jurisdiction of another by the latter's will, because those things which belong to jurisdiction can be committed.

7. The aforesaid forms of speaking refer to a twofold manner of granting jurisdiction, namely, directly and indirectly. For, as Suarez says (De Poenit., disp. 28, beginning), jurisdiction can be granted or delegated in two ways: first, directly, by granting jurisdiction to a priest...; secondly, on the part of the penitent, when someone is granted the faculty of choosing a confessor, not as though jurisdiction were given to the penitent to whom permission is granted, but, as the same author has it (sect. 1, no. 2), it is only a power to choose or designate such a person; and when he has been designated, the Pontiff or ecclesiastical Prelate who gave such a faculty confers jurisdiction upon him. It must therefore be held as settled and certain that the formulas to give permission to confess to an alien priest, or to choose an alien priest, and other similar formulas, signify delegation or the conferral of jurisdiction upon that priest to whom the subject will confess.

8. From this it follows that there is no need that the priest who is chosen in the case already have jurisdiction from elsewhere. For the jurisdiction required for absolving this penitent is conferred upon him by the very fact that he is chosen. Francis de Vitoria expressed this clearly thus (Sum., no. 150): It is asked whether one who has authority to choose a confessor... can choose a simple priest not yet appointed to hear confessions. I reply absolutely... that without any scruple he can choose any priest, as Cajetan also says.... The reason is that in this alone does a priest having jurisdiction differ from one not having it: the former has matter, while the latter does not; and nothing else is lacking to the latter for being able to absolve except matter upon which he may exercise the power which he received when he was ordained. Since, therefore, one receiving (the faculty of choosing) is given the power of subjecting himself to whomever he wills, the priest thus chosen now has matter and jurisdiction concerning him; hence nothing is lacking to him. This doctrine is afterward called common among the Doctors by the same Author.

Concerning this matter, among others, Suarez also says (De Poenit., disp. 28, sect. 3, no. 5): I say first: before the Council of Trent, a Pastor by force of common law could validly and licitly commit his jurisdiction to any priest who according to natural or divine law was fit to minister this sacrament, even if he did not have any other jurisdiction or the approval of the Bishop. And again (ibid., no. 6): I say secondly: according to the ancient law, by a general faculty given for choosing a confessor, any priest fit by divine law could be chosen, without any other condition or approval required by human law. From where, however, did jurisdiction come in the case to the priest chosen, unless from the Superior who gave permission to choose?

Nor indeed is the condition of things different after Trent. For the difference consists only in this, that now the priest who is chosen needs the approval of the Ordinary in whose territory he hears the confession. Nevertheless he needs jurisdiction, which in the case is from the choice of the penitent. Hence Melchior Cano (Relect. de Poenit., part 6): An approved priest can be chosen even if otherwise he has no subjects and no jurisdiction whatever.

Let the conclusion therefore finally be this: It is a doctrine defined in the Ecumenical Councils of Florence, Trent, and Lateran that an absolution conferred by another besides the proper Superior is invalid apart from a commission or permission obtained from that same Superior. But a commission or permission of this kind signifies the direct or indirect communication of jurisdiction. Therefore every absolution imparted without jurisdiction conferred by the penitent's Superior is invalid.

9. Hence, when treating of confession to be made outside the diocese, both Theologians and Canonists, all alike, both older and more recent, always mention, and indeed inculcate, the necessity of permission, commission, or consent of the Superiors or proper Ordinaries.

Of the older authors Cardinal Turrecremata will suffice, who writes thus (In Cap. Omnis De Poenit., no. 6): A penitent desiring to confess to an alien priest... must seek permission from his own proper priest or from a Superior. It is evident, because the alien priest, without a commission made to him by one of them, has no power. This is evident from the chapter Omnis utriusque, etc.

As regards the more recent, Azor (part 2, bk. 3, ch. 12, q. 10), to the question whether the rector of one parish can hear the confessions of a parishioner of another, replies: By no means, unless with the express or tacit consent of that Rector to whom that parishioner is subject; for jurisdiction is required for hearing the sacred confession of penance. Do you see how consent here signifies the conferral of jurisdiction?

Valentia (vol. 4, disp. 7, q. 10, punct. 2): It is noted here by the Doctors that one must ALWAYS seek permission from that confessor to whose care a person is otherwise committed, so that he may confess to another. And after citing the chapter Omnis utriusque, he adds: Where it is prescribed that if anyone for a just cause wishes to confess to an alien priest, he is not to do so except with the permission of his proper priest.

Becanus (De Sacram., ch. 38, q. 7, no. 2): It is prescribed that each person confess to his proper priest, or to an alien priest with the consent of his proper priest.... In this sense Trent defined... that the absolution which a priest pronounces upon one over whom he has neither ordinary nor subdelegated jurisdiction is of no moment. Do you see how consent is equivalent to delegation of jurisdiction?

Laymann (De Poenit., ch. 10, nos. 9-10) teaches concerning travelers that they can be absolved by the tacit will of the Ordinaries.

And Roncaglia (De Poenit., q. 7, ch. 2, q. 2): The power of absolving... subjects of another Bishop is founded upon the tacit consent of the Prelates..., so that their proper subjects may be absolved even outside the diocese.

And the Salmanticenses (De Poenit., ch. 11, no. 53) likewise establish that travelers can be absolved in view of custom and the tacit consent of their Pastors.

And Filliucius (tract 7, ch. 9) not only establishes (no. 195) that travelers can confess by the tacit permission of the pastors, but clearly explains (nos. 227-228) that, when someone is given the faculty of choosing a confessor, once the choice has been made, Christ THROUGH THE PASTORS gives jurisdiction to that confessor.

And Palaus (tract 3, disp. 6, part 7, sect. 2, no. 6): Although the Ordinary of the place can minister the sacrament of penance to outsiders and travelers..., he has this from the concession of their proper Ordinary. He repeats this (tract 23, part 13, no. 12).

And Esparza (bk. 10, q. 93, art. 3): The order of Hierarchy in the Church of God demands that each Ordinary have jurisdiction of the forum, even the interior forum, contained within the limits of his diocese, in such a way that no one can validly involve himself with regard to juridical acts concerning the sheep of another, or concerning subjects belonging to another in spiritual matters, EXCEPT BY HIS CONSENT AND DELEGATION.

And lest we gather more here with useless labor, see those things which appear below in the Note at no. 573, where the words of Amort testify concerning the unanimous and constant doctrine of the Church, and where also the texts of the Canonists Pichler and Fagnanus are brought forward. To these can be added Schmalzgrueber (bk. 5, tit. 38, no. 38), and Wiestner, who (bk. 5, tit. 38, no. 57) gives as the reason that sacramental absolution is a judicial act or sentence.... But the nature and character of a judgment demand that sentence be rendered upon subjects alone, since no one can be bound or absolved by one who is not his judge; and Pirhing, who (bk. 1, tit. 31, no. 147) therefore denies that the confessions of visitors can be heard without the express or tacit consent of their proper pastor, since absolution is a judicial act which can be exercised neither licitly nor validly upon one over whom the priest has neither ordinary nor delegated jurisdiction.

10. And worthy of attention are the words by which the same Pirhing expresses the same doctrine thus (bk. 5, tit. 38, no. 35): Nor can a diocesan without the consent of his Ordinary subject himself to the jurisdiction of a pastor who is not his own. There are, of course, some who think that the question can be resolved in the contrary sense by asserting that a visitor becomes the subject of another by the very fact that through confession he subjects himself to that priest, although a stranger. These persons scarcely observe that, according to the meaning of the Doctors, to confer jurisdiction is the same as to assign subjects to someone. What, however, is more absurd than that jurisdiction should be conferred by the penitent merely because he presents himself as subject to the priest? The Theologians do not so speak. Hence Melchior Cano (Relect. de Poenit., part 6) aptly observes that only one who has the faculty from his proper priest presents himself as subject to the confessor whom he chooses. We saw the same noted by Francis de Vitoria above, no. 8: only to one receiving the faculty of choosing is given the power of subjecting himself to whomever he wills. Hence Engel also (Man. Paroch., part 3, ch. 2, no. 6) warned that someone can subject himself to an alien priest only insofar as his proper Ordinary can give that subject permission to submit himself to the jurisdiction of another.

11. Moreover, nothing shows more clearly how far the necessity of the consent of the Ordinary extends, so that by reason of jurisdiction a confession with an alien priest may be valid, than the doctrine of the Authors whom we cited in the Note, who deny validity if the consent of the Superior is lacking.

Thus Lugo briefly (disp. 19, no. 7): Those who travel and make a journey can now, by the tacit will of their Pastors, confess even to that Pastor whom they find in the place where they are, provided nevertheless that they did not deliberately depart from their domicile in order, on the occasion of the journey, to confess to another.

And Suarez (disp. 25, sect. 2, no. 9): It must be observed that good faith is necessary here; for if someone undertook the journey solely for this, that he might have an occasion of confessing to another and not to his proper priest, that would no longer be necessity, but will, and would not be according to the intention of the pastors or according to the custom of the Church; and therefore the confession would not be valid.

And Palaus (tract 23, punct. 13, no. 12): If you were to undertake the journey solely for this, that you might confess to another and avoid confession to be made to your proper pastor, you could not use the aforesaid privilege and faculty; since... they are not possessed from the tacit consent of the proper pastor, and you do not conform yourself to the intention of the Church.

And Bonacina (De Poenit., disp. 5, q. 7, punct. 2, no. 6): Therefore he who undertakes a journey solely for this end, that he may avoid his proper pastor and confess to another, cannot validly confess before the pastor or priest of the place to which he comes, as Coninck, Vasquez, Suarez, Reginald, and other more recent authors well observe.

Moreover, it has already been observed above that these Authors suppose the consent of the proper pastor to be lacking in the case, which Palaus expressly intimates; and therefore, as we saw, Tamburini, Mazzotta, Filliucius, etc., who are customarily cited against them, suppose on the contrary that consent is not lacking.

12. But nothing shows the state of this controversy better than an examination of the reasons by which the new theory is defended. And indeed St. Alphonsus proposed thus (bk. 6, no. 588) that thesis which the VV. also endeavor to defend: Travelers today are no longer absolved by the will of their Bishops.

Let us ask: Did the holy Doctor produce even one author, or could he produce one, for that thesis? Did he confirm it by any argument?

But the VV. also established this thesis, as we have seen: The doctrine that jurisdiction must be given by the Superior of the person who is to be absolved is improperly asserted as an axiom held among all. Again let us ask here: Did they produce even one author, or could they produce one, for a thesis of this kind?

But, you will say, the VV. confirm the thesis by reason. Reply. They indeed bring forward a reason (p. 525), but such a reason as openly makes clear that every solid reason is entirely lacking to them. For they argue thus: From the Constitution of Innocent XII, confirmed by Benedict XIV, Confessors, both secular and regular, whoever they may be..., can in no way hear confessions without the approval of the Bishop of the place in which the penitents themselves reside and choose confessors.... Nor for this does approval once or several times obtained from other Ordinaries of other dioceses avail, even if the penitents were subjects of those Ordinaries who had approved the confessors. But, as Gury says, Bishops now confer jurisdiction together with approval..., and hence by common usage jurisdiction also is called approval. Therefore no Bishop can delegate confessors in another diocese to absolve his own diocesans from sins....

Reply. There will be someone, it seems, who judges that the connection between the premises and the conclusion of this argument is wanting. Accordingly, he will think the reply should be: I concede the Major; I concede the Minor, or let it pass; I deny the Consequent and the Consequence. Another, however, after conceding the Major, will distinguish the Minor thus: Bishops now confer jurisdiction together with approval. Distinguish: they confer it upon those who need it, let it pass; upon those also who do not need it, such as Regulars, subdistinguish: as though it were necessary to them for the ministry of absolving, I deny, because Regulars have jurisdiction not from the Bishop who approves them, but from the Apostolic See; by way of superabundance, let it pass. But another will distinguish the Minor in yet another way thus: Bishops now confer jurisdiction together with approval. Distinguish: jurisdiction over their own subjects, I concede, or let it pass; jurisdiction over those who are not their subjects, such as visitors from another diocese, I deny. For Bishops have no jurisdiction over those who are not their subjects; therefore they cannot give it to others, because no one gives what he does not have.

Accordingly Reiffenstuel (tract 14, dist. 1, q. 1, no. 15), in order to prove that exempt Regulars receive jurisdiction not from the Bishop who otherwise approves them, but from the Apostolic See, argues thus: There is added the reason that the Bishop of the place cannot give so extensive a jurisdiction of hearing the confessions of all the faithful coming from anywhere and of absolving them.... And Laymann, in order to prove that Regulars also need the consent or commission of their own Prelates, writes thus (bk. 5, tract 6, ch. 10, no. 19): Ludovicus Miranda well warns that Priests of Mendicant Orders, in order to obtain the said faculty, need, in addition to the approval of the Bishop, the consent of the Prelate or Chapter according to the custom of each Order; since the Bishop cannot give so extensive a jurisdiction of hearing the confessions of all the faithful coming from anywhere and of absolving them...; but Confessors of the Mendicant Orders receive it from the Supreme Pontiff with dependence upon the consent and will of their Prelates.

13. Therefore, to remove the confusion introduced here by the VV., let those things which pertain to approval and those which pertain to jurisdiction be properly distinguished. The approval of the Bishop in whose territory the confession is made is in a certain manner a condition by which a priest becomes capable of receiving and exercising jurisdiction, from whomever having ordinary jurisdiction it may finally be delegated to him. For it is not necessary that the same priest be approved by all those who may wish to delegate jurisdiction to him. Thus a Regular Prelate, granting to a religious subject the faculty of confessing to secular priests approved by the Ordinary of the place, himself, and not the Bishop, delegates jurisdiction to them; but the Bishop, and not he himself, approves them. Thus a priest deputed by a Regular Prelate to hear the confessions of Nuns exempt from the jurisdiction of the Bishop has jurisdiction not from the Bishop, but from the Regular Prelate; nevertheless he must have approval not from the Regular Prelate, but from the Bishop. And the same thing, in a word, occurs when there is question of those exempt from the Bishop's jurisdiction who nevertheless must choose one approved by the Bishop of the place. And since there is a twofold class of exempt persons, or non-subjects - some are such by reason of Privilege, although they have domicile in the Bishop's territory, as, for example, Regulars; others, however, are such by their nature, or by separation of territory, such as subjects of another diocese - the same rule applies to all of them. Hence that statement of Suarez (De Relig., tract 10, bk. 9, ch. 2, no. 9): Whence it is established that a confessor (from the Mendicants) residing here and approved by the Prelate of this diocese alone can hear the confessions of all who come here to him, even from other episcopates, although such a confessor does not have approval from their Bishops....

Let us conclude, therefore, that the thesis proposed in the Note and opposed by the VV. - namely, that it is to be held as an axiom that jurisdiction must be given by the Superior of the person who is to be absolved - has in its favor the manifest doctrine of the Church defined in Ecumenical Councils, and at the same time the unanimous opinion of the Catholic School; but that the opposite thesis is supported by no aid of authority or reason, not even in appearance.

13. Now to that which the VV. add in defense of that new doctrine. As we saw above, no. 1, they establish two things, namely: 1. that St. Alphonsus rightly relies upon custom; 2. that the Constitution of Boniface VIII cited in the Note presents no obstacle. Yet while the VV. unfold these things, they sufficiently show that they have perceived themselves to be in difficulty.

14. They set forth the first point thus (p. 511): St. Alphonsus rightly teaches that, from a universal custom approved by the Church, Travelers can confess to any confessor approved in the place, even a secular one, provided they do not go into another diocese in fraud of reservation. But someone will reply: Let the whole pass; for these things do not attack the contrary thesis, which denies absolution to be valid only when someone confesses outside the diocese against the resistance and will of his proper Ordinary. But the VV. say nothing there concerning this.

The VV. proceed, bringing forward the words of Filliucius and Tamburini, concerning whom we spoke at the beginning of this Note. But another will reply that these things also do not strike the contrary thesis. For Filliucius and Tamburini suppose that the Ordinary of the penitent does not dissent; Gury, on the contrary, supposes that the Ordinary resists. Therefore these things do not pertain to the matter; indeed, they suggest the opposite.

But behold, after these things the VV. add as a consequence that St. Alphonsus deservedly asserted that travelers today are no longer absolved by the will of their Bishops, nor is it now any longer asked whether some Bishop has given a sign of dissent. But another will reply: From which of the premises does a consequence of this kind flow?

To confirm these things, the VV. add (pp. 510 and 512) that Bonacina denies that one is validly absolved who confesses elsewhere in order to avoid his proper pastor, while Mazzotta adds that he is validly absolved from the tacit consent of the Ordinaries, or rather of the Pope. But another will reply: Do these things prove that absolution is valid if someone goes to confess to an alien priest against the resistance of his proper Pastor? Do they not rather establish the opposite? Moreover, as regards Mazzotta and Bonacina altogether irrelevantly introducing mention of the Pope here, it must be replied briefly: 1. nothing is extracted from this by which it is proved that absolution imparted by an alien priest is valid when the proper Ordinary resists; 2. this anomaly of recurring to the Pope is to be numbered among those confusions of which there is discussion below in the Note at no. 573, question 5.

15. The VV. themselves describe thus the custom upon which they say St. Alphonsus relied when he denies that travelers today are absolved by the will of their Bishops: In his time, and indeed long before, confessors not only in some places, provinces, or kingdoms, but throughout the whole world, indiscriminately received any penitents who came to them and treated them in the same manner as inhabitants, not inquiring whether they were travelers, or, if they learned this accidentally, whether their Bishop consented and did not object, nor investigating with what intention they had undertaken the journey.... And the Church approved this universal custom; for the Supreme Pontiffs never reproved in the least the same practice prevailing even at Rome under their eyes. But no one denies that a universal custom approved by the Church has the force of law, and indeed the same force as a written law. And therefore it is no longer asked whether any Bishop has given a sign of dissent, for no Bishop has power to contradict a universal law, whether written or unwritten. This, moreover, is the custom to which the VV. afterward say (p. 512) that the Constitution of Boniface VIII presents no obstacle.

16. Let it now be passed over whether all the things pertaining to the practice just described by the VV. can be proved. For someone could ask, for example, whether satisfaction is made to the law which forbids the absolution of those who go into another diocese in fraud of reservation when confessors, as the VV. say, indiscriminately receive any penitents who come to them and treat them in the same manner as inhabitants, not inquiring whether they are travelers, or, if they learn this accidentally, whether their Bishop consents and does not object, nor investigating with what intention they have undertaken the journey. These matters will be treated more suitably elsewhere.

As regards the present matter, it is of the greatest importance accurately to know the nature both of the custom which the VV. describe and contend to have been approved, and of the custom which Boniface VIII, in chapter Si Episcopus 2, De Poenit. et Remiss. in VI, defines cannot be introduced. For from this comparison it will be evident whether the definition of Boniface VIII is rightly or wrongly objected against a new theory of this kind.

17. And indeed it can be said to be by no means obscure what is meant by the custom of which Boniface VIII speaks. Nor can it be introduced by any custom (he says) that someone, apart from the permission of his Superior, may choose for himself a confessor who can loose or bind him. These words clearly refer to the Definition of the Lateran Council (in chapter Omnis utriusque) which establishes these things: If anyone, however, for a just cause wishes to confess his sins to an alien priest, let him first seek and obtain permission from his proper priest, since otherwise the latter cannot absolve or bind him. By that canon, therefore, Boniface defines that no custom can be introduced contrary to the practice concerning which the Lateran Council issued a definition. But, as we saw above, nos. 4-8, the definition of the Lateran Council has this purpose: that no one can validly confess to another besides his Superior unless that other receives delegated jurisdiction from the same Superior; for this is signified when permission is said to be given. Therefore the definition of Boniface signifies that no custom can be introduced by virtue of which someone can validly confess to another besides his Superior unless that Superior, by giving permission, has delegated his jurisdiction to him.

Concerning the permission which the Lateran Synod defines to be necessary, Cajetan says, for example (Sum., word Absolutio, 2): Permission is given in two ways. Either explicitly: when the Pastor says to the people in common, Let each person go to confess to whom he wills; or he says specially to someone, Confess to whom you will; AND THIS IS NOTHING OTHER THAN TO GIVE PERMISSION TO CHOOSE A CONFESSOR FOR HIMSELF. Or implicitly. And this happens first by permitting subjects to travel; for in this permission to travel, permission to confess is believed to be implicitly enclosed, because confession ought to be a companion of travelers.... Secondly, by knowing and remaining silent; as when the Bishop knows that it is customary for his Canons or Pastors to absolve one another, and remains silent. For although it cannot be introduced by any custom that someone may choose a confessor for himself, as is said in chapter Si Episcopus, De Poenit. et Remiss. in VI, nevertheless, from the fact that the Bishop knows and remains silent, he is bound to provide them with a Confessor; and TACIT EPISCOPAL PERMISSION GIVES FORCE TO ABSOLUTIONS, and custom concurs only as a witness of implicit permission. And because of implicit permission of this kind, travelers without the permission of the Pastor can confess at Easter... wherever they find themselves, as those who have permission, etc.

Likewise St. Antoninus (part 3, tit. 17, ch. 4): The Doctors agree in this, that travelers and merchants and other wayfarers, if they do not have permission (at least tacit and implicit) from their Pastors or Bishops..., cannot be absolved by others. But if they set out with their permission, by that very fact they have interpretative permission to confess, since they cannot worthily travel without confession. And lest more be brought forward here, let it suffice to observe that the unanimous opinion of the Doctors (see above, no. 9) which requires at least the tacit consent of the Ordinary pertains to this point.

18. But now let it be examined what kind of custom the VV. defend as legitimate and approved. And 1. this custom signifies (above, no. 14) that travelers are not absolved by the will of their Bishops; therefore, by no consent or permission of the Bishops, neither express nor tacit, neither explicit nor implicit. 2. This custom signifies (above, no. 15) that it makes no difference whether the Bishop of the traveler consents or objects. Therefore the permission of the proper Ordinary is altogether irrelevant in this matter. 3. Therefore, according to this custom, it is not asked whether the Bishop has given a sign of dissent, because the Bishop has no power to contradict this custom by virtue of which subjects can, apart from any permission of his, confess outside the diocese to whomever they please (above, no. 15).

Since these things are so, would you suppose that they agree with the definition of the Lateran Council, confirmed by the Councils of Florence and Trent, namely, that no one should confess to an alien priest unless he obtains permission from his proper priest, with the reason added that otherwise the alien priest cannot absolve him? And since the Apostolic See in chapter Si Episcopus through Boniface VIII defined that it cannot be introduced by any custom that someone, apart from the permission of his Superior, may choose for himself a confessor who can absolve him; and, on the contrary, the VV. contend that a custom is legitimate by which someone, apart from the permission of his Superior, and indeed even against his resisting will, can choose a confessor who can absolve him; how can anyone affirm that this definition of the Church is vainly objected against their theory? Indeed, since a new theory of this kind manifestly conflicts with the definition of Boniface, the matter seems now to have been brought to this: either this new theory, namely, that travelers are absolved by virtue of the custom which they describe, is to be regarded as false, or the definition of Boniface VIII, namely, that a custom of this kind cannot be introduced, is to be judged false.

19. But, as had already been observed in the Note, the definition of Boniface VIII which denies that a custom of this kind can be introduced is by no means a decree of some merely ecclesiastical law against which a contrary custom could be introduced in the course of time. Why? Because the practice against which he denies that any custom can prevail - namely, the decree of the Ecumenical Councils of Lateran, Florence, and Trent - is not some decree of ecclesiastical law, but an institution of divine law.

And it is surely remarkable that the VV. thought no account should be taken of the words of Suarez which were read thus in the Note: It is replied that to choose a confessor without the permission of one's proper Bishop is repugnant to DIVINE LAW; and therefore the Pontiff (Boniface VIII) signified in that text (chapter Si Episcopus) that custom cannot prescribe against this law. And, moreover, was it not added in the Note itself that, according to the testimony of Melchior Cano, all the scholastic Authors, and therefore St. Thomas, etc., agree in this very point?

20. Nor is the reason obscure why this institution and practice must be said to be of divine law, not human law. For who does not know that it is a divine institution of Christ the Lord that the sacrament of penance be administered after the manner of a judgment? Hence the Tridentine Synod argued thus (sess. 14, ch. 7): Since the nature and character of a judgment demand that sentence be rendered upon subjects alone, it has always been held as certain in the Church of God that the absolution which a priest pronounces upon one over whom he has neither ordinary nor subdelegated jurisdiction ought to be of no moment. And since the Church testifies that she can do nothing concerning those things which were established by Christ the Author of the Church, while any custom can have force only from the authority of the Church through legal consent, it is manifest that a custom which exceeds the power of the Church can never be introduced; and such plainly is that custom introduced by the VV.

Dominic Soto, a Tridentine Theologian, speaks aptly and exactly to the matter (In IV, dist. 18, q. 4, art. 2, concl. 1): It is necessary for Confession, and required for its essence, that it be made to one's proper priest, or to one to whom he has committed it. Hence concerning the Canon of the Lateran Council he adds: It would never have restricted confession to one's proper priest unless it understood this to be of divine law and therefore always observed in the Church.... Hence Boniface (chapter Si Episcopus) says: It cannot be introduced by any custom that someone, apart from the permission of his Superior, may choose for himself a confessor who can loose or bind him. But that which is abrogated by no custom is divine or natural law. And hence the same reasoning: for the Church can do nothing concerning the essence of a sacrament; therefore she cannot approve a custom which destroys the essence of the sacrament.

To this point pertain also those words of Vasquez (In III Part., q. 93, art. 2, dub. 2, nos. 5-6): Since it was said above that it cannot be introduced by custom that someone may confess to an alien priest without the permission or consent of his proper priest, as is stated in chapter Si Episcopus, we prove from this that it is of divine law, since the contrary cannot be introduced by custom.... Whence it is gathered that to confess to one's proper priest is not of human law (let the reason be carefully observed), because a contrary custom could be introduced not only with the consent of the Pontiff who had enacted the law, but also with the tacit consent of an inferior.... Since it is of divine law to confess (to an alien priest) with the consent of him (namely, the Ordinary) or of the Superior, prescription cannot be made against it; otherwise, if it were not of divine law.

21. It is useful, however, to have examined carefully what parts custom has in this matter. From this it will be openly evident how those two things are amicably reconciled: namely, both that the Doctors, when treating of the confessions of visitors, commonly appeal to custom, and that it is nevertheless preserved that it cannot be introduced by any custom that someone, apart from the permission of his Superior, may choose a Confessor by whom he can be absolved.

Cajetan proposed the matter briefly and at the same time most clearly (see above, no. 17), where, treating of the implicit permission to confess which the Ordinary grants even to travelers by tacit consent, he concludes: Tacit episcopal permission gives force to absolutions; and custom concurs only as a witness of implicit permission. Therefore custom does not grant jurisdiction, but is an indication of the tacit consent, or implicit permission, of the Ordinary, from which there follows the delegation of jurisdiction to the chosen confessor.

22. Suarez explains these things more fully thus (disp. 27, sect. 3, no. 4): It is always necessary that some sufficient indication of the consent of the Superior intervene, and custom can assist in signifying it. This is rightly declared by the example (and this is the example which, cited above, no. 17, we already saw also in Cajetan) of priests who by custom are accustomed to choose a confessor; for because they are accustomed to confess frequently, it was burdensome for the pastors to hear them all, and therefore they readily consented that they confess among themselves to one another. This consent, not revoked, is as it were continued by custom, and the custom itself is an indication of that consent. Yet because permission always depends upon the will of the Superior, and exemption from at least this tacit consent of the Superior would be contrary to divine law, Suarez therefore adds (loc. cit., no. 6): From which I infer that this faculty (namely, of choosing a confessor) obtained by custom is such that it always depends upon the will of the proper priest, so that, notwithstanding the custom, it is always in his power to revoke it if he wishes; because such a custom formally and directly would be contrary to divine law, since by force of it a subject could choose a confessor while the proper priest objected.

Let the reader, I ask, compare these words of Suarez with those which were transcribed from the VV. above, no. 17, and judge with an equitable mind what is to be thought of the same VV. when they fill five columns (pp. 512-514) with texts of Suarez in order to prove that the cited definition of Boniface VIII presents no obstacle to them.

23. In the same manner as Cajetan and Suarez, Valentia proposes the doctrine of the Church thus (vol. 4, disp. 7, q. 10, punct. 2): It must be noted here (he says) that custom... has force so that someone acquires jurisdiction to hear confessions for this reason alone: because when he obtains it with the Superior knowing and remaining silent, by that very fact the tacit consent of the Superior is also considered to intervene. From which... it is understood that chapter Si Episcopus, De Poenit. et Remiss. in VI, where it is said that it cannot be introduced by any custom that someone may choose a confessor without the permission of his Superior, does not conflict with those things which we have said concerning custom. For the things which we have thus far said must be understood of a custom with which at least the tacit faculty of a Superior who knows and does not prohibit concurs.... But that chapter speaks of bare custom to which at least the tacit consent of the Superior is not added; as if perhaps it were established that the custom itself displeased the Superior. For then jurisdiction can by no means be acquired through it. And thus John Medina and Soto rightly reply to this chapter. And again let the reader compare these things with those which we related from the VV. above, no. 17.

Nor otherwise John Marini (Theol. Spec. et Moral., tract 22, disp. 10, sect. 1, no. 17): Prelates are considered to confer jurisdiction upon those chosen (as confessors) when they see and remain silent; and therefore this jurisdiction does not flow from custom, but from the legitimate concession of the Prelate, and is continued by force of such a concession not revoked by successors. Whence custom, properly speaking, does not give the faculty of choosing a confessor, but is a sign of the concession made by force of the persevering tacit consent of the Superior. From these things it is deduced that the Prelate by whose tacit consent the custom is continued can, at his pleasure, by expressing a contrary will, abrogate and entirely abolish it, and that the preceding custom cannot prevail in any way.

And Filliucius (tract 7, ch. 9, no. 233): I ask to whom the faculty of choosing a Confessor has been granted from custom alone. I reply and say first that custom taken by itself cannot grant the faculty of choosing a confessor without the permission of one's proper priest. The reason is that this would be contrary to divine law.... It can, however, be a sufficient sign of a faculty granted by the pastors and never revoked, but persevering through tacit consent.

24. Augustine Michel, Canon Regular, also lucidly proposes this doctrine of the Church in his Theology published at Augsburg in 1712 and dedicated to Cardinal Sacripante. There (tract 4, part 2, q. 2, sect. 2, nos. 26-29), treating of diverse modes of delegating jurisdiction, he discusses among these also indirect delegation by force of the custom of hearing the confessions of travelers thus: Although according to common law (travelers) ought to seek permission from the Pastor, by general custom demonstrating the universal faculty of the Ordinaries they have the right to confess even without it not only to privileged Regulars (who, namely, have jurisdiction from the Supreme Pontiff for all Christ's faithful), but to any other priest appointed in the place of the journey, provided that they travel in good faith and not in fraud of avoiding the Ordinary. He then objects to himself (ibid., no. 29): But you will say: in chapter Si Episcopus 2, De Poenit. et Remiss. in VI, Boniface VIII expressly defines that it cannot be introduced by any custom that someone, apart from the permission of his Superior, may choose for himself a confessor who can loose or bind him. And he replies (ibid.): I reply that we met this objection by the words "demonstrating the universal faculty of the Ordinaries," by which we attribute this permission not so much to custom as to the will of the Ordinaries, yet in such a way that general custom is the witness of this will.

25. Reginald, so greatly praised by St. Francis de Sales, must also be heard. He (bk. 1, no. 77) sets forth the common doctrine of the Church concerning travelers thus: The fourth proposition is that travelers who determine previously to retain their domicile, if they are absent from their domiciles with the permission of their Pastors or Bishops, are to be considered to have tacit permission to confess to an alien priest, as was said above, no. 68, concerning travelers.... Because their Superiors also... are deservedly considered to give them tacit permission to confess, as providing through others for their subjects, whom they cannot provide for by themselves in their absence, concerning those things necessary for the sustenance of the spiritual life.

But as regards the custom of confessing elsewhere to an alien priest, the same Reginald says thus (loc. cit., no. 74): As regards custom, it, as Cajetan rightly observes, word Absolutio, 3, does not give jurisdiction. For this is sufficiently established from the fact that in chapter Si Episcopus, De Poenit. et Remiss. in VI, it is said that it cannot be introduced by any custom that someone, apart from the permission of his Superior, may choose for himself a confessor who can loose or bind him. Therefore custom is only a witness of tacit permission sufficiently granted by the proper priest and not revoked, but, as the continuation of the custom shows, continued with his tacit consent. There is added the fact that to delegate jurisdiction belongs to the Superior having ordinary jurisdiction, not to his subjects whose custom it is. Treating this more fully, Suarez infers from it that jurisdiction obtained by custom always depends upon the will of the priest, so that, notwithstanding the custom, it is always in his power to revoke it if he wishes.

26. Space does not permit more things to be brought forward. But those things are not to be omitted which Coninck has, where (disp. 8, dub. 5, no. 32) he asks whether jurisdiction can be obtained by custom. For it seems (he says) that this can be done from chapter Cum contingat 13, De foro compet.; but what is said in chapter 2, De Poenit. in VI, stands to the contrary: Nor can it be introduced by any custom, etc.

He then adds the following Conclusions. Conclusion I (no. 33): He who does not have jurisdiction cannot acquire it unless either ordinary jurisdiction is given to him, or another jurisdiction is delegated to him by one who can do so.

Conclusion II. In order that someone validly delegate jurisdiction to another, he must know what he is doing and will to do it at least implicitly..., and express this will sufficiently by some external sign, so that it can become known to the other.

Conclusion III (no. 37): Custom never gives jurisdiction when it is employed without the knowledge of those who can give it.

Conclusion IV (no. 38): A custom which is exercised with the Superior openly knowing and not contradicting when he easily can gives jurisdiction not by reason of itself, but by reason of the tacit consent and approval of that Superior.

From this he deduces these two corollaries (no. 39): From which it is evident, 1. that it can happen that this custom begins at first through invalid confessions because of a defect of jurisdiction, before the failure of the Superiors to prohibit is a sufficient sign that they consent; and afterward brings it about that subsequent confessions are valid, after that failure to prohibit is a sufficient sign of consent.

It is evident, 2. that jurisdiction acquired by custom always depends upon the will of the Superiors by whose authority or tacit consent it was introduced. Therefore both they themselves and their successors can always revoke it.

27. Therefore, to conclude at last, what must be held in this matter, and indeed not as some opinion of the School but as certain doctrine of the Church, resting upon the nature and essence of this sacrament as the Ecumenical Councils and the Apostolic See have proposed and solemnly defined it, is reduced to these heads: 1. It is necessary that jurisdiction for absolving a visitor be delegated by one who has ordinary jurisdiction, and indeed ordinary jurisdiction over that visitor. 2. The custom by which visitors are accustomed to confess outside their own diocese does not confer, nor can confer, this jurisdiction. 3. Jurisdiction is acquired from the approval or consent, whether express or tacit, or from the permission, whether explicit or implicit, of the Ordinary or proper priest of the visitors. 4. This approval or consent signifies a delegation of jurisdiction made to the confessor whom the visitor chooses. 5. A sufficient indication of this consent is the custom which is observed with the proper priest knowing and remaining silent. 6. The delegation of jurisdiction so depends upon this consent that it is within the power and will of the proper pastor to revoke that consent, and therefore both to abrogate the custom and entirely to remove jurisdiction for absolving his subject. All these things ought to be beyond controversy. Do the things which the VV. assert above, nos. 15 and 18, agree with them?

28. Nor indeed is it to be thought that the not infrequent assertion of Theologians or Canonists that jurisdiction can be acquired by custom is opposed to these things. Cajetan explains thus the different sense in which this is customarily affirmed (word Absolutio, 2, at the end): A prescriptive custom not of choosing a confessor, but of having the care of souls, brings it about that Cardinals have care of their household, and that with their permission members of their household can confess to whomever they will; in like manner anyone else having a care of this kind can by himself or through another impart the benefit of absolution, for jurisdiction of this kind no less than others can be possessed through prescriptive custom.

On the same matter Henry Pirhing speaks thus (bk. 5, tit. 38, no. 36): A subject or parishioner cannot by force of custom acquire the power of choosing a confessor for himself without the permission of his Superior, not even through a custom of the longest time or even immemorial custom (chapter 2, De Poenit. et Remiss. in VI), nor prescribe such a right.... A Prelate, however, or another constituted in dignity, for example, an Archdeacon, can prescribe, or by legitimately prescribed custom acquire the care of souls over the parishioners of another, and thus become their proper priest and hear their confessions. Hence, when in the cited chapter Si Episcopus 2, De Poenit. et Remiss. in VI, it is said that it cannot be introduced by any custom that someone without the permission of his proper pastor may choose another confessor for himself, it is to be understood unless a priest through long-standing custom acquires jurisdiction to absolve the subjects or parishioners of another. Therefore what the Doctors are accustomed to dispute concerning jurisdiction acquired by custom has nothing to do with our matter.

28. Finally, we shall add this one thing here, so that it may be established what is to be thought concerning the antiquity which someone might perhaps vaunt of the custom by virtue of which, long before the times of St. Alphonsus, confessors not only in some places, provinces, or kingdoms, but throughout the whole world, indiscriminately received any penitents who came to them and treated them in the same manner as inhabitants, not inquiring whether they were travelers, or, if they learned this accidentally, whether their Bishop consented and did not object, nor investigating with what intention they had undertaken the journey.... And therefore it is no longer asked whether any Bishop has given a sign of dissent, because no Bishop has power to contradict a universal law, whether written or unwritten. Would it not by these words be sufficiently declared that, in administering the sacrament of Penance, it is altogether irrelevant, and therefore nothing is to be inquired or cared about, whether sacramental judgment is exercised concerning persons in some way subject, or in no way subject?

But in the dogmatic Constitution of Pius VI which begins Auctorem fidei, these words are read (no. 37): Concerning the power of absolving. The doctrine of the (Pistoian) Synod which, concerning the authority to absolve received through Ordination, declares that after the institution of dioceses and parishes it is fitting that each person exercise this judgment over PERSONS SUBJECT TO HIM, either by reason of territory or by a certain personal right, because otherwise confusion and disturbance would be introduced; insofar as after the institution of Dioceses and Parishes it declares that it is merely fitting, for preventing confusion, that the Power of absolving be exercised OVER SUBJECTS; understood thus, as though for the valid use of this Power that ordinary or subdelegated jurisdiction were not necessary, without which Trent declares that an absolution pronounced by a priest is of no moment; FALSE, RASH, PERNICIOUS, CONTRARY AND INJURIOUS TO TRENT, ERRONEOUS.

QUESTION 14. Do SUCCURSAL PRIESTS in France enjoy ordinary jurisdiction? Reply. Affirmative; for they are Pastors properly so called, and the care of souls is committed to them to be exercised not as vicars of another, but in their own name. The Succursal Priest, or Deservitor, is in fact bound, just as the Rector of the principal parish, by virtue of his office to administer the Sacraments to his subjects; and the subjects in turn must have recourse to him in the same cases in which parishioners must by law approach their proper Pastor and not another, for example, for contracting marriage, for receiving Paschal Communion, etc. - Gousset, no. 479; Vernier, no. 92; D. Bouix, Tract. de Parocho, p. 337, etc.

QUESTION 15. Can a simple Priest absolve those sailing upon the Ocean, or from whom must approval be obtained?

Reply 1. Of himself he cannot absolve except in probable danger of death, as was said above, because outside that case a Priest of this kind lacks every jurisdiction.

Reply 2. By universal custom, the approval of the Bishop of the place from which the voyage is undertaken is required and suffices; for by custom such a Bishop has the faculty of approving the Priest about to sail and of delegating him for the whole time of the voyage. - Thus commonly with Bouvier, sect. 5 at the end.

556. • QUESTION 16. Can military Chaplains absolve soldiers everywhere without the approval of the Bishop of the place?

Reply 1. Affirmative, if they are specially delegated by the Supreme Pontiff to the spiritual care of the soldiers, or by a Chaplain Major approved by the Pope.

Reply 2. But if they lack this special delegation, they can indeed hear confessions in the diocese of the approving Bishop, and also outside it while traveling and in camps by the tacit consent of the Bishops, as is evident from universal custom; they cannot, however, validly absolve in stations or garrisons without the permission of the Bishop of the place, because they have no jurisdiction. This is established from various Declarations of the Sacred Congregation which Father Zacharia relates in Lacroix, no. 1518. - See also St. Liguori, no. 577; Bouvier, De Approbatione; Bouix, De Parocho, p. 66, etc.