ARTICLE II: ON JURISDICTION

What jurisdiction is, and what its various species are, see n. 149.

1393. 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 passed except on subjects. Therefore subjects must 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 a very great inconvenience would arise 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 especially clear from Trent.

II. Ordinary jurisdiction belongs: 1° to the Pope for the whole Church in both forums; 2° to the Bishop for his diocese, likewise in both forums, since it has been committed to him precisely that he may rule and direct it; likewise to the Archbishop, while he visits the subjects of his Suffragans; to the Capitular Vicar; to the Vicar General; and, for the internal forum, to the Canon Penitentiary of the Cathedral church; 3° to parish priests 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 a proper act of ordinary power. Cf. n. 150. Nevertheless jurisdiction for hearing Confessions cannot be delegated except to a priest approved by the Bishop, as is clear from what was said above concerning approbation. As regards parish priests, the faculty of delegating has become almost useless; since Bishops, to whom it pertains to approve confessors, are accustomed to confer jurisdiction and approbation together, as was said in n. 1391.

IV. Delegated jurisdiction is granted by the Church to any priest in a case of extreme necessity, or in the article of death, or, as others will have it, the Church then supplies jurisdiction. This is clear from Trent.

V. Delegated jurisdiction for hearing Confessions expires by revocation made by the Superior, or by the lapse of the prefixed time; likewise by the death of the one delegating, or his ceasing from office, if it was given for some particular person and the judgment has not yet been begun; or also if it was given generally, but with the clause: at the will of the one granting; at our good pleasure, or another similar clause. Cf. n. 151.

1394. Questions. - Query 1° What is the jurisdiction of confessors in the Ecclesiastical Provinces of the United States, ordinary or delegated, and to what places does it extend?

Resp. 1° According to those things which we said in n. 1138, the common opinion almost up to this time has been that the jurisdiction of all priests is delegated. Therefore they cannot absolve those committed to them in a foreign diocese. See however T. I. (b), p. 471.

Resp. 2° That ancient custom, that approbation given for the diocese of one of these Provinces would be valid also for the others, which custom had been introduced in the year 1810 by a quasi-pact of the Bishops, has been abrogated.¹

Resp. 3° All priests among us are accustomed to be approved and are considered approved for the whole diocese, "although," as Kenrick rightly observes,² "they ought not to use the faculties committed to them to the burden of others; wherefore, only with the good leave of the Missionary of the place, ought they to hear Confessions outside their Mission."

Query 2° Can delegated jurisdiction be subdelegated?

Resp. Neg., generally speaking, namely, unless a special concession of the one delegating is added; and then it is considered to be subdelegated in the name of the one delegating himself. The reason is that a delegate has only that power which is granted to him; but to him is granted only the power of exercising jurisdiction, not of committing it to another, unless something else is expressed. Therefore, etc. - For exceptions see n. 150.

Query 3° Does the Church supply jurisdiction when penitents invincibly are ignorant of its defect?

Things to be noted beforehand concerning a title of jurisdiction and error concerning it. - A title of jurisdiction in general is an act by which power for performing ecclesiastical functions is conferred.

A title is true or false: it is true when it labors under no vice; but in order that it be true, three things are required: 1° the free power of the one granting; 2° the ability of the one receiving; 3° the due form in the act of concession.

False is that which labors under a vice concerning one of the three things just indicated. It is also called putative relatively to those who, ignorant of its vice, deem it legitimate.

A false title can be either fictitious, or colored, or simply or notoriously null.

Fictitious is that which was not granted by a Superior, or not for the case, or place, or time, or person, concerning which there is question.

Colored is that which was granted by a legitimate Superior, and of itself would be apt for conferring jurisdiction if it were not voided on account of a hidden defect; but that hidden defect can occur: 1° in the one granting. Thus, e.g., if the death of the Bishop were unknown, his Vicar General would have only a colored title; 2° in the one receiving, whether some vice preceded, e.g. hidden irregularity, or excommunication; or whether he was deprived of his title, and this is unknown; 3° in the act, as if hidden simony had intervened, by reason of which the act would be void.

Simply null is that which was granted by a Superior to whom it does not pertain to grant, e.g. by an Archbishop, outside the cases in which the faculty of supplying the negligence of Suffragans is attributed to him; or if it was indeed granted by him to whom it pertains to grant, but labors under a vice manifest to all or almost all.

Error concerning the title can be either common among the faithful, all or almost all of the place where Confessions are heard, or private only of some person.

These things having been noted beforehand:

Resp. 1° The Church certainly supplies if the error is common and at the same time joined with a colored title. The reason is drawn from the common interpretation of Theologians supported by diverse places of the Law. For, as they say, the Church, as a pious mother, is deservedly considered to supply jurisdiction for the good of souls, since she can do this.²

Resp. 2° According to an opinion probable to St. Alphonsus, but whose opposite he says is more common, the Church also supplies if common error is present without a colored title, but with a title only esteemed or fictitious. For the same reason urges as in the preceding case, since also in this hypothesis innumerable souls could perish.³

Resp. 3° The Church is not considered to supply jurisdiction if the error is private, e.g. if it is of one or a few. The reason is that the Church is not considered to supply except by reason of the common good, after the likeness namely of a provider or general governor, who attends only to the general good of society, and leaves the good of private persons to the care of particular providers. - Thus very commonly the Theologians against a few.

Query 4° Is it lawful to absolve with doubtful jurisdiction in a doubt of fact, for example in a case in which it is doubted whether it was truly conferred by the Superior, or whether the time for which it was granted has elapsed?

Resp. Neg., unless there presses the necessity of annual Confession, of celebrating or communicating in order to avoid infamy, of celebrating from obligation, or of absolution from mortal sin otherwise not to be had for a long time; in these cases however only conditionally, with the burden on the penitent of confessing again if he learns that the confessor truly lacked jurisdiction, and with contrition elicited before Communion (n. 1344. q. 8° under 8°).

Query 5° Is it lawful to absolve with jurisdiction probable by probability of law?

Resp. Affirm., provided the opinion is truly probable, supported by grave reason and authority. For in this case custom itself confers jurisdiction, and by force of this custom the confessor, in absolving, would not absolve with only a probable opinion, but with morally certain certitude, not direct, but reflex. - Nevertheless it is not lawful to use this jurisdiction except when a cause of grave necessity or of great utility is present, as Elbel and Wig. say, or a gravely reasonable cause, as St. Alphonsus explains. The reason is that, although in that case, for the good of souls, the Church can well be considered to supply jurisdiction, nevertheless, with no just cause added, she is not presumed to wish to connive at mere freedom of priests.²

Query 6° Do excommunicated persons to be avoided, the suspended, the interdicted, the irregular, the degraded, schismatics, notorious heretics, apostates, etc., validly absolve in danger of death, when another priest is lacking?

Resp. Affirm. The reason is that all priests can absolve in the article of death, as is clear from Trent.³

Query 7° Can a simple priest absolve not only in the article, but also in the danger of death?

Resp. Affirm. The reason is that there is nearly the same necessity of the penitent in danger and in the article of death. Besides, it is clear from Canon Law that the article and danger of death are taken for the same thing.¹

But danger of this kind is considered present: 1° in a dangerous illness; 2° in time of plague; 3° in a difficult childbirth; 4° in an arduous surgical operation; 5° before a very dangerous navigation; 6° in battle, or in other similar circumstances.²

Query 8° Can a simple priest absolve a dying person, even when an approved confessor is present?

Resp. Doctors disagree among themselves; and St. Alphonsus, after weighing the reasons of each opinion, finally gives his judgment in these words: "Nevertheless, these things notwithstanding," namely the reasons for the affirmative brought by him, "I think one must not depart from the first opinion," namely the negative, which he calls very common, "on account of the authority of the Roman Ritual (On the Sacrament of Penance, near the beginning), where it is said thus: But if danger of death threatens, and an approved (note this) confessor is lacking, any priest can absolve from any censures and sins whatsoever. Therefore simple priests can absolve if an approved confessor is lacking; therefore they cannot if an approved one is present."³

Except: 1° if the approved confessor would not wish or would not be able to hear the Confession, because then it is the same as if he were lacking; 2° if the approved confessor is excommunicated by name, suspended, interdicted, irregular, degraded, a schismatic, notoriously a heretic, an apostate, because then the simple priest is to be preferred; 3° more probably, if the approved confessor were of another diocese, because with respect to the sick person he is by no means called approved; 4° probably, if the dying person so shuddered to manifest his crimes to the approved confessor - because, e.g., he is his enemy, or a blood relative, or the object of sin - that he would be in danger of confessing sacrilegiously; 5° if the sick person could not confess to the approved confessor without great difficulty or inconvenience, thus Mazzotta, alleged by St. Alphonsus and not disapproved; 6° if the approved confessor comes after the Confession with the simple priest has already begun; 7° if the approved confessor is the accomplice of the sick person in a shameful sin.⁴

What the law is, if there is question of reserved sins when one having the faculty is present, see n. 1403. q. 4°.

Query 9° Can a parish priest call in a parish priest of the same or of a different diocese for hearing Confessions in his parish?

Resp. 1° As regards a parish priest of the same diocese, although by force of his office he has special jurisdiction only for his own parish, nevertheless from the almost universal custom he can hear Confessions even in the whole diocese, unless the Bishop decrees otherwise. Nevertheless the proper customs of places must be consulted.

Resp. 2° As regards a parish priest of a different diocese, various opinions are brought, as Benedict XIV says. Those who affirm argue from Trent, because a parochial benefice would serve for universal approbation. Others deny, whose opinion, St. Alphonsus says, receives strength from the Response of the Sacred Congregation of the Council, December 3, 1707. - Benedict XIV admits the first opinion in those places where such a custom exists.

Query 10° Can a priest approved by the Bishop hear the Confessions of the faithful without the leave of the parish priest?

Resp. 1° As regards liceity, neg., if Confessions are heard in a Church subject to the parish priest. The reason is that due order altogether requires that, since the parish priest is the immediate Superior in his Church, leave to exercise sacred ministries there be sought from him. Nevertheless the leave of the parish priest is not required for hearing Confessions in the Chapel of Regulars or of Nuns, but the leave of the Superior or Superiorissa of the place suffices.

Resp. 2° As regards validity, it is certain according to all that the license of the parish priest is not required outside the case of annual Confession. Indeed neither is it required for annual Confession, at least per se, or by common law. This is clear from the common doctrine of Theologians against some, and also from the present custom and universal practice of the Church, as Benedict XIV testifies, and as is clear from the declaration of S. C. de P. F., July 2, 1827. - But if somewhere that custom is not in force, nevertheless the Confessions must be held valid, unless the Bishop expressly contradicts; for if he is silent, he seems to consent to the universal custom of the Church.

Query 11° Does a delegate validly and licitly absolve after the elapsed term of a delegation to be renewed every year, e.g. if a crowd of penitents should flow together to some great solemnity?

Resp. 1° He absolves invalidly per se, i.e. by reason of jurisdiction, because in fact he has none. Nevertheless he will probably absolve validly by reason of common error, on account of which the Church is considered to supply for the good of souls.

Resp. 2° The priest sins gravely per se if he knowingly does this; the reason is that he exercises the function of confessor without legitimate authority; and, although then the Church supplies, he is nevertheless guilty because he unduly compels her to supply.

Query 12° Can a priest approved in some place validly hear the Confessions of pilgrims coming there?

Resp. 1° Affirm. absolutely as regards regular confessors, who have this special privilege from the Holy Apostolic See. - See the Constitution Superna of Clement X.

Resp. 2° Also affirm. as regards secular priests; the reason is that such is the custom having force from the tacit consent of Ordinaries, which is equivalent to ratihabition in the present. - Thus the more common Theologians and Canonists.

Query 13° Can a Bishop, under penalty of invalidity, prohibit diocesan subjects from going to confess outside the diocese?

Resp. Negatively, whether they go to confess outside the diocese to regular confessors, who have the privilege of hearing the Confessions of all the faithful coming from anywhere, or whether they confess in another diocese to secular priests. The reason is that, with the present custom of absolving pilgrims standing, these are no longer to be said to be absolved from the tacit consent of their Ordinaries, but from the will of the Church, which, by approving such a custom, grants to all approved confessors jurisdiction over pilgrims presenting themselves at their tribunal, excepting only those who go elsewhere in fraud of reservation. (18) p. 419.

Query 14° Can a simple priest absolve those sailing on the Ocean, or from whom must approbation be obtained?

Resp. 1° He cannot absolve per se, unless in probable danger of death, as was said above; because a priest of this kind outside that case lacks every jurisdiction.

Resp. 2° The approbation of the Bishop of the place whence the ship sets sail is required and suffices, and the faculty endures until it reaches a place where another ecclesiastical Superior possessing jurisdiction has been established. Thus S. C. O., March 17, 1869.

Query 15° Can military Chaplains absolve them everywhere without the approbation of the Bishop of the place?

Resp. 1° Affirm., if they have been specially delegated by the Supreme Pontiff to the spiritual care of soldiers, or by a major Chaplain approved by the Pope.

Resp. 2° But if they lack this special delegation, they can indeed hear Confessions in the diocese of the approving Bishop, and also outside it on the road and in camps from the tacit consent of the Bishops, as is clear from universal custom; nevertheless they cannot validly absolve in stations nor in garrisons without the license of the Bishop of the place, because they have no jurisdiction. This is clear from various Declarations of the Sacred Congregation, which P. Zacharia reports apud Lacroix. See also St. Alphonsus.