Question First: Concerning the Absolution of an Accomplice in a Base Sin

I. To avoid lest confessors be able to abuse their power for sinning more freely, Benedict XIV established that every confessor outside danger of death lacks the faculty of absolving his own accomplice in a base sin, and prohibited absolution of this person, outside a case of extreme necessity, under pain of excommunication.

"We interdict and prohibit each and every priest, secular as well as regular... lest any of them outside a case of extreme necessity, namely in the very article of death and then also with another priest lacking who could undertake the function of confessor, dare to receive the sacramental confession of a person who is an accomplice in a base and dishonorable sin committed against the sixth precept of the Decalogue, for that reason any authority and jurisdiction whatsoever over any person whatever for absolving from a fault of this kind having been taken away from him; so indeed that the absolution, if he imparts any, is altogether null and void, as imparted by a priest who exists deprived of the jurisdiction and faculty necessary for absolving validly, which by these our presents we intend to take away from him. And nevertheless, if any confessor has dared to act otherwise, by that very fact let him incur also the penalty of major excommunication, the power of absolving from which we reserve only to Ourselves and to our successors."

Thus in the Bull Sacramentum Poenitentiae, 1 June 1741; which he confirmed and explained more in the Constitutions Apostolici Muneris, 28 February 1745, and Inter praeteritos, 28 November 1749.¹ Moreover the Code of Law ratified this, can. 884:

¹ These documents, as also other responses of the Holy See to be attended to in the present and following question, can be read in De Smet: On the Absolution of an Accomplice and Solicitation.

"The absolution of an accomplice in a base sin is invalid, except in danger of death; and even in danger of death, outside the case of necessity, it is illicit on the part of the confessor according to the norm of the apostolic constitutions and by name of the constitution of Benedict XIV Sacramentum Poenitentiae, 1 June 1741"; - and can. 2367:

"1) One absolving or feigning to absolve an accomplice in a base sin incurs by that very fact an excommunication reserved in a most special manner to the Apostolic See; and this even in the article of death, if another priest, although not approved for confessions, without some grave infamy and scandal about to arise, can receive the confession of the dying person, except the case in which the dying person refuses to confess to another.

"2) He does not escape the same excommunication who absolves or feigns to absolve an accomplice who indeed does not confess the sin of complicity, from which he has not yet been absolved, but conducts himself thus because he has been induced to this by the accomplice confessor either directly or indirectly."

That discipline was established for a twofold end: namely both for protecting the sanctity of the sacred tribunal, or for removing from the sacrament every occasion of baseness and indecency and contempt; - and for meeting dangers to souls, namely for avoiding danger of seduction and relapse into the same sin, and for guarding against detriment of the penitent to be obtained from lesser shame or from defect of serious detestation or purpose.

Moreover, for explaining what has been established, it is necessary to declare what is 1) a base sin, 2) an accomplice, 3) to absolve.

II. A base sin is to be understood without restriction: any sin of lust, that is, against chastity and the sixth precept, not only perfect and consummated, but also imperfect and begun, such as touchings, kisses, embraces, indeed base speech and looks, as the Holy Office declared on 28 May 1873, provided that they are strictly lustful and import complicity; - not however sins against other virtues and precepts. Hence to absolve an accomplice in a sin of injustice, for example, in homicide or theft, is not specially prohibited; although even such absolution is indecent.

But the sin of lust must be a) grave, b) external, c) not yet directly remitted:

a) Grave, both objectively and subjectively, namely materially and formally.

Therefore light sins are excluded, whether from imperfection of the act, or from erroneous conscience, or from lightness of matter, while it concerns lust voluntary only in its cause. Hence if a boy from erroneous conscience certainly judges that touches shamefully perpetrated by a priest are not a grave sin, he could be absolved by this priest.

b) External, so that the sin is grave both internally and externally, and also so that it, as such, namely in the account of an external act, is gravely sinful.

For this reason merely internal sins of lingering delight and desire are excluded, and external sins venial under every respect, and also grave sins whose grave malice is not fully manifested outwardly. Hence if kisses or touches had from an internal lustful affection, as external acts, are not gravely evil in themselves, and the libidinous affection from which they are done is not fully manifested outwardly, they can be absolved.

c) Not directly remitted; whence if the sin has already been duly accused and validly remitted by direct absolution, so that now it is free matter of confession, the priest can absolve from it (Holy Office, 29 May 1867).

Nevertheless it must altogether be advised that he never hear the confession of his accomplice except when necessity compels, on account of the danger of temptation or irreverence toward the sacrament.

III. An accomplice is a companion and as if one implicated in a base sin. This must be understood without restriction, of whatever sex, age, and condition: anyone, whether male or female, whether pubescent or impubescent, provided he is capable of grave sin; indeed also a person with whom before receiving the priesthood the priest had sinned, as the Holy Office declared on 22 January 1879. And therefore here he invalidly absolves an accomplice who institutes a general confession of sins, if the prior confessions certainly were sacrilegious, or even simply invalid.

But for complicity there is required:

1. A mutual sin, namely, that each internally and externally committed the same grave sin against chastity; or the consent of two in the same grave and external base sin, whether each cooperates, as in mutual conversations and embraces, or only one acts, for example, by touch, provided that the other consents both externally and internally: which consent is presumed sufficiently to be present if he in no way resists.

Hence the following do not fall under the law: a) an act which is mortal on one side, only venial on the other; b) nor an act externally light although internally grave on each side; c) nor an act, however grave, to which the other does not consent, indeed to which he has not furnished external consent, although he consents internally.

2. Formal complicity: a) at the same time of the sin; for in the case of sin with one sleeping, unwilling, totally drunk, insane, or ignorant of the baseness of the sin from erroneous conscience, or in good faith not attending to it, even if he had been led into error by the confessor, complicity is not present;

b) at the time of absolution; for 1. if during absolution the confessor does not recognize his accomplice, or 2. if he doubts and, by prudently questioning insofar as he could do this without danger of his own infamy or scandal of the penitent, he cannot remove the doubt, or 3. if the priest is in no way (neither in the act of sin, nor afterwards) known as a priest, but the penitent altogether does not know that his accomplice is a priest, the absolution is valid and licit. Then namely the abuse of power which the Church prohibits is not present.

Yet it does not matter if the confessor as accomplice is not known in confession by the penitent, provided that it is verified that he truly is an accomplice, and the confessor knows him, and nevertheless absolves: in this case the absolution is invalid.

IV. The aforesaid conditions having been posited, absolution, indeed confession, is invalid on account of privation of jurisdiction; but the absolution itself is required, true or fictive, not confession alone, that excommunication be incurred. Hence

1. this penalty is not incurred a) if the priest only heard the confession of the accomplice, provided that he does not absolve nor feign to absolve; b) if the penitent kept back the sin of complicity in confession of his own accord or by inculpable forgetfulness, although this does not escape the one absolving. For the privation of jurisdiction and the attached excommunication is in order to the base sin in which the confessor was an accomplice (Sacred Penitentiary, 16 May 1877);

2. but excommunication is incurred: a) if the priest simulates and feigns that he absolves before the penitent himself, as is now certain from the Sacred Penitentiary, 9 July 1751, 1 March 1878, and 19 February 1896, and the Holy Office, 10 December 1883, and ratified by the Code, can. 2367 § 1: thus, for example, if he absolves without intention or substantially corrupts the form, or by pronouncing a certain prayer and other words, or by being silent, seems to the penitent by sign or gesture to absolve; not however if he dismisses a forewarned penitent with only a blessing, dissimulating before those standing by; b) if the confessor induced the penitent accomplice not to confess the sin of complicity, whether directly by admonishing him to be silent, or indirectly by persuading him that the act was not gravely evil, or is not necessarily to be accused, as for example already known to him.

Indeed, from the recent declaration of the Holy Office, 16 November 1934, he is also to be judged as inducing indirectly "a confessor who, either within or outside sacramental confession, has persuaded someone that in base things to be perpetrated between themselves either no sin or certainly not a grave sin is present, and consequently sacramentally absolves or feigns to absolve him when afterwards he confesses to himself concerning other things only." By which excommunication is now extended beyond the case of complicity in grave sin.

V. Observation. - That the established discipline have force, it is necessary that the case be certain and exclude every founded doubt of law and of fact; otherwise the rule is to be applied: in doubt odious things are to be restricted. Therefore it is required that the base sin be certain, certainly grave, and as such certainly external, certainly mutual, and that complicity in it be certain.

Hence the case of complicity in a base sin probably is not present, nor therefore to be attended to in practice:

1. if there is doubt whether the penitent sinned gravely;

2. if there was simple connivance, from the fact that the other did not impede a sin which by office he does not have to impede, or approval of base speech heard, which did not excite other base speech;

3. if the accomplice is not a companion immediately in the base act itself or in sin according to itself libidinous, but only in the sole base agreement concerning seducing a woman, who in reality is not seduced, or in the sole base permission or invitation of sinning with a spouse or offspring, which nevertheless is not corrupted: namely, cooperation alone in the base sin of another does not suffice;

4. if the accomplices are in an external act venial from its object (such as a pressure of the hand, a light kiss, a momentary touch, or an embrace on an honorable part), even if on each side internally it is done from a base affection or intention, provided that it has no joined external immodest circumstance, or manifestation by which the affection or intention of immodesty becomes sufficiently known outwardly.

VI. Absolution of an accomplice is not, as some have thought, a reserved sin, because not only is there a restriction, but the removal of power: for the incapacitating law brings it about that the confessor lacks all jurisdiction toward the accomplice accusing a base sin (or culpably keeping it silent), and that the very absolution of the accomplice as such, and not only of the sin of complicity, is void, so that no valid absolution is given, neither direct absolution of other sins nor therefore indirect absolution of the sin of complicity.

Thus not only according to the tenor of can. 884, but also according to the preceding Constitutions.

This is altogether clear from the words cited above of the Benedictine Constitution, which removes "any jurisdiction whatever over any person whatever for absolving from a fault of this kind, so that the absolution... is altogether null and void, as imparted by a priest who exists altogether deprived of jurisdiction... for validly absolving," indeed who "is not able to receive the confession of the said accomplice of this kind nor to bestow sacramental absolution on him, since for this effect and in this case no confessor, as one who exists deprived of jurisdiction and the faculty of absolving (not only) in the genus of this sin (but in this genus) and of penitent, is to be held for a legitimate and approved confessor."

Still more clearly in the Constitution Inter praeteritos: "We have deprived any confessor whatsoever of all authority and jurisdiction of absolving a person who is an accomplice in a base and dishonorable sin against the sixth precept of the Decalogue, so that absolution given by the same is null and invalid, as given by one who by Us has been deprived in that case of the jurisdiction necessary for absolving."

And in the Instruction of the Holy Office, 20 February 1867: "Every faculty and jurisdiction for receiving the sacramental confessions of a person who is an accomplice... is taken away from any priest."

Whence also in the instructions given by the Sacred Penitentiary, for priests to be absolved from censure on account of absolution of an accomplice, there occurs the clause that the accomplice priest admonish the penitent "concerning the nullity of past absolutions," and indeed without that restriction or distinction between the case of good or bad faith on the part of the penitent; indeed from the fact that the penitent is said to be admonished, good faith is rather supposed.

And these things also remain true after the promulgated Code, which repeats in the same sense, can. 884: "The absolution of an accomplice in a base sin is invalid, except in danger of death."

To these things some object the words of the Sacred Penitentiary praised above, 16 May 1877: that the privation of jurisdiction "is in order to the base sin itself in which the confessor was an accomplice." But undeservedly. For there the privation of jurisdiction is not denied, but affirmed; it is not said that the privation of jurisdiction affects only the sin of complicity, but the absolution of the accomplice in order to the sin of complicity itself, so that the confessor is deprived of all jurisdiction and as to every sin, but uniquely in view of and by reason of the sin of complicity, that is, when that sin is accused.

Besides, the Sacred Penitentiary could not temper by its own authority the law of the Holy Office or of the Benedictine Constitution, and without special intervention of the Supreme Pontiff, concerning which nothing is reported in the case. And also the end of the law demands that all these cases be comprehended; otherwise the law would be weakened, so that in several cases absolution could now be given indirectly.²

² The adduced words of the Constitutions of Benedict XIV are so clear that before the said response of the Sacred Penitentiary, which undeservedly gave occasion to some hesitation and to a more benign interpretation among some, the opinion denying any jurisdiction whatever over the accomplice "was common among theologians" (Aertnijs, Th. Mor., II, n. 250). Hence we do not understand how Fr. Vermeersch could have written (Th. Mor., III, n. 499): "Noldin... now thinks that a stricter response must be given, since the canon declares invalid the absolution of the accomplice himself, and not only of the sin; but according to the preceding Constitutions the canon can be understood which refers to them." A stricter response is to be given not only according to the tenor of canon 884, but also according to the preceding Constitutions. Hence still less do we understand why in the new edition of Noldin's work Fr. Schmitt changed this opinion of his. He says indeed: the Code in this matter changed nothing, therefore according to can. 6, § 2, ancient interpretations have force. Therefore the controversy previously existing is not solved but there is a doubt of law (Zeitschrift fur Kath. Theol., 1934, p. 150). But, as before the Code, Noldin held the opposite opinion to be in no way probable, so neither after the Code would he judge it probable, nor say that there is a doubt of law. Nothing in this matter has been changed. - Surely it does not suffice that some defend some opinion without any foundation, and against which very grave arguments militate; it does not suffice, I say, that this can be called truly probable, and that a doubt of law is truly present.

Hence, if in urgent necessity the penitent accomplice could not omit Holy Communion without grave scandal or infamy, nor could approach another confessor, content with a simple act of perfect contrition he ought to approach Holy Communion, nor could he be absolved by the accomplice priest.

VII. An exception is given for extreme necessity, that is, in the article of death, - and also in probable danger of death prudently judged, which is equated in law with the article³ - if another priest is lacking, even one not approved, who could be called or approach without some grave infamy or scandal, and to whom the penitent is willing to confess: for then it is as if another priest truly were lacking, says Benedict XIV in the Constitution Apostolici Muneris.

³ This is already clear from the Code itself, which has can. 884: "in danger of death," but can. 2367: "in the article of death."

Therefore in this danger, absolution on the part of the confessor is not licit, nor is the penalty of excommunication avoided, unless another priest is lacking who can be called without great inconvenience, and who does not refuse to receive the confession of the dying person (for example, on account of too great familiarity with the penitent, who is related to him by blood or is his maidservant), and to whom the penitent does not refuse to confess.

There will be a cause of excuse:

1. if the sick person publicly asks the confessor, bringing Viaticum to him, to be willing to receive his confession, because the confessor without scandal and danger of infamy (especially if he were pastor) could not refuse this;

2. if the dying person, without any fault of the accomplice confessor, altogether refuses to confess before another priest;

3. if without danger of infamy or scandal, or of a sacrilegious confession, the accomplice priest could not depart, or another could not be called or approach;

4. also probably, if there is present only a priest notoriously suspended or excommunicated: for such a one does not seem to be one who can undertake the function of confessor; and besides he would not easily be called without infamy or scandal.

On the contrary, absolution is illicit, and excommunication is incurred:

1. if, another priest being present and not impeded or easily able to be called, the accomplice priest absolves;

2. if another priest can be called, but the accomplice priest feigns danger of infamy or scandal where it is not present;

3. if the accomplice priest, as much as lies in him, does not employ opportune means so that danger of infamy or scandal does not follow, and place of confession lies open to the other priest (Constitution Apostolici muneris), for example, by not arriving under some pretext, or by departing from the house, feigning illness, forewarning the penitent, sending another priest to the sick person, etc.;

4. if a priest is present who would not himself be exposed to his own infamy, but before whom the accomplice priest would be defamed: with respect to one person either infamy is not given, or the accomplice must sustain some of it on account of the fault committed; otherwise it scarcely could happen that, a priest being present, the confessor could not absolve the accomplice.

Nevertheless absolution is always valid in danger of death, namely lest on this occasion someone perish (Constitution Apostolici muneris).

Danger of death is any case gravely dangerous whether from within, from infirmity or childbirth, or from without, from a very dangerous navigation, imminent battle, an inflicted blow. By privilege, those enlisted in the military who are constituted in the state of wartime convocation or mobilization can be equated to those in danger (Sacred Penitentiary, 29 May 1915); likewise, from the nature of the matter, those who are placed in danger of perpetual insanity.

But now several, proceeding further, from epikeia wish to equate with danger of death the case of a penitent who in a distant region, for example, of the Missions, would greatly fear lest he ever, or except after a very long time, could have a confessor, unless he confessed to the accomplice. But in the Constitutions of Benedict XIV only the case of danger of death is excepted, likewise in the Code of Law, although nevertheless things occurring in regions of the missions could not have been unknown by them: "absolution is invalid except in danger of death," says the Code; what is clearer?

Therefore the exception does not seem to be extended to other cases, besides those which are commonly judged to be equivalent to death. Interpretation, even if it were of many theologians or canonists, does not suffice for restricting or extending the sense of the law, but only authentic interpretation can do this; especially because a place is not customarily given to epikeia in invalidating laws on account of the common good. Therefore no positive foundation is present for the more indulgent opinion, which accordingly is not solidly probable.

Indeed, for the common good it is altogether important that missionaries, who, on account of special circumstances, are exposed to greater danger, not know for themselves an excessive facility of absolving an accomplice and escaping the consequences of their sin.⁴

⁴ The accomplice priest will easily be able to foresee the case and have recourse to Rome so that, with the name kept silent and with a fictive indication of residence, he may obtain the faculty of absolving the accomplice; besides, even in the opinion of others, if he foresaw the case, he is bound to this.

VIII. The established penalty is excommunication reserved in a most special manner to the Supreme Pontiff, from which irregularity follows (can. 2261, § 1). For contracting the penalty there are required:

a) on the part of the delict: true or fictive absolution of one who accused the sin of complicity not yet directly remitted, or who keeps it silent while he was induced to this by the accomplice priest;

b) on the part of the delinquent: consciousness of grave sin, and knowledge of the censure, yet in such a way that crass or supine ignorance does not excuse from it (Holy Office, 13 January 1892, ad 3; can. 2229). Ignorance as to the existence of the censure can scarcely be given; more easily as to its extension, insofar as in good faith it can be judged that a case is present in which to absolve an accomplice is licit.

From the said excommunication regularly only the Apostolic See absolves; but in danger of death and in the more urgent case even a simple confessor can absolve, but only with the burden, under pain of reincidence, of having recourse at least within a month to the Holy See, even if recourse is here and now impossible (can. 2252, 2254, 2367). Hence the case is treated more rigorously than sins reserved on account of censure.

IX. Corollaries. - From the things said it follows:

1. A priest who at the beginning of confession does not know the accomplice, but nevertheless before absolution recognizes him, must admonish him concerning the defect of jurisdiction and dismiss him; for by this he himself incurs no defamation.

2. He who in the article of death illegitimately, that is, with another priest not impeded, began to receive the confession of an accomplice, is bound to yield place to the other priest and to abstain from absolving; indeed even if he began legitimately, with another confessor lacking, and such a one supervenes or the danger of death has now passed, he must cease, provided that this can be done without graver inconvenience.

3. He who absolves an accomplice in danger of death, when necessity urges, cannot, once the danger has passed, receive confession for completing the accusation, if the sin of complicity still remains to be accused.

4. He who doubts whether the penitent is an accomplice must inquire and question insofar as prudence permits; but if he does nothing to solve the doubt, he invalidly absolves the accomplice, and does not escape excommunication, because the ignorance is crass and supine (Holy Office, 13 January 1892).

X. A priest who unduly absolves an accomplice must have recourse, by himself or through another, for example, a confessor, to the Sacred Penitentiary.

For this, under a fictive name, let the case be set forth with all the circumstances which bear upon the matter, namely how many accomplice persons and how many times the priest attempted to absolve; whether he is a pastor, or having care of souls, or a mere confessor; whether he has contracted one or several irregularities from violation of censure by celebration of Mass or solemn exercise of sacred Order; whether at another time he has already received a rescript of grace for absolution from a crime of this kind; whether he has already been absolved in an urgent case.

Moreover the Sacred Penitentiary will prescribe:

1. that every occasion, as much as possible, of sinning with the accomplice be removed;

2. that the accomplice confessor, as far as he can without grave scandal, abstain from hearing the confessions of the accomplice person;

3. that, if the penitent accomplice again approaches him, he send him to another confessor and admonish him concerning the nullity of past confessions;

4. that besides sacramental penance, he fulfill another grave or also long juridical penance, imposed in the rescript itself or to be imposed by the confessor; and sometimes, also that he perform spiritual exercises;

5. finally, sometimes that he lay aside the office of confessor within a predefined time; not however always.

XI. The penitent accomplice himself incurs no censure, or penalty, or reservation of himself.

Let a person of this kind be received kindly by the confessor, so that he not blush to confess his own misery; and after repeated confessions invalidly performed before the accomplice, and the occasion of sinning having been removed, let him be dismissed absolved. But, as much as can be done, let him be turned away from further return to the accomplice confessor (as the Sacred Penitentiary prescribes, 16 May 1877), even if the law concerning fleeing the proximate occasion perhaps does not absolutely require this in the case.

But if besides, on the occasion of confession, he had been solicited to sin, the following question would have force.