Question I: Concerning the Jurisdiction of the Confessor in General, Ordinary or Delegated

St. Thomas, q. 8, a. 4 and 5; q. 20, a. 1.

I. All jurisdiction is either ordinary or delegated: "Ordinary jurisdiction is that which by the law itself is attached to an office (accepted in the strict sense from can. 145); delegated jurisdiction is that which is (legitimately) committed to a person" (can. 197).

These, in order to confession, differ in a threefold way:

1. Ordinary jurisdiction is given by a superior from mission to some pastoral office by which someone becomes as it were the proper priest of subjects; delegated jurisdiction is given from a special personal concession.

2. Ordinary jurisdiction is exercised validly over subjects everywhere on earth (can. 881); delegated jurisdiction cannot be exercised outside the territory for which it was conceded (unless jurisdiction has been obtained there from the Ordinary of the place).

3. Ordinary jurisdiction, according to can. 199, of itself can be delegated to others wholly or in part, unless something else is expressly provided by law; delegated jurisdiction of itself cannot be subdelegated unless a special concession of the delegating person accedes.

II. Concerning ordinary jurisdiction for confessions, canon 873 is valid:

"1. Ordinary jurisdiction for hearing confessions is enjoyed:

a) for the universal Church, besides the Roman Pontiff, by Cardinals of the Holy Roman Church (without restriction, as to all persons and cases, except however censures most specially reserved to the Holy See, and those which are annexed to the revelation of a secret of the Holy Office, according to can. 239, § 1: thus, for example, reserved are those which are brought against those who cast away the consecrated species, lay violent hands on the Roman Pontiff, absolve an accomplice from a base sin);

b) for his own territory, each Ordinary of the place (also the vicar general or capitular, vicar or prefect or apostolic administrator), and the pastor and others who are in the place of the pastor (rector of a quasi-parish; parochial vicar, that is, rector of a parish which by full right is united to a moral person; administrator of a parish or vicar economus, vicar substituted for a pastor long absent with the consent of the bishop, assistant vicar if he supplies in all things for a pastor unequal to the task: thus according to can. 471-475; likewise sometimes a chaplain of soldiers; not however of itself an assistant vicar, nor cooperating vicars).

A pastor, besides subjects, cannot hear and absolve penitents outside his own territory; nevertheless by particular law he generally obtains delegated jurisdiction for the whole diocese.

Among those who are in the place of a pastor, some add the rector of a diocesan seminary as regards his own subjects, on account of can. 1368; but this does not seem so, because the Church is not judged to concede jurisdiction when she prohibits its being exercised habitually over subjects, as can. 890 does.

"2. This same jurisdiction is enjoyed also:

a) by the penitentiary canon¹ even of a collegiate church (a fortiori of a cathedral), according to the norm of can. 401, § 1 (that is, with power of absolving even from sins and censures reserved to the Bishop - whether by law or personally by that bishop - in the diocese, strangers, and diocesan persons even outside the territory of the diocese);

¹ Nevertheless for this reason he does not have power of absolving religious women, as is established from can. 876, § 1.

b) and by exempt religious Superiors for their own subjects, according to the norm of the constitutions.

A religious Superior can also be of an exempt lay religion, provided the superior himself is a priest.

"3. This (ordinary) jurisdiction ceases by loss of office, according to the norm of can. 183, and after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict."

Therefore before sentence, an excommunicated person absolves validly, even licitly if he is tolerated and requested by a member of the faithful (can. 2261).

III. Concerning delegated jurisdiction for confessions, canons 874 and 875 are valid.

Canon 874: "1. Delegated jurisdiction for receiving the confessions of any persons whatever, whether seculars or religious, is conferred on priests, both secular and religious, even exempt, by the Ordinary of the place in which confessions are heard; but religious priests are not to use it without at least the presumed license of their Superior,² the prescription of can. 519 however remaining firm (that is, in the case in which a religious penitent approaches for the quiet of his conscience³).

² Otherwise they can sin, yet they validly absolve.

³ Cf. below, pp. 31 and 33.

"2. Ordinaries of places are not to concede jurisdiction for hearing confessions habitually to religious who are not presented by their proper Superior; but to those who are presented by their proper Superior, they are not to deny it without grave cause, the prescription of can. 877 remaining firm (concerning the examination of fitness)."

Canon 875: "1. In an exempt clerical religion, for receiving confessions (even outside the house) of professed members, novices, and others concerning whom in can. 514, § 1 (namely, those who dwell day and night in a religious house for the sake of service, education, hospitality, or infirm health, as long as they dwell habitually), delegated jurisdiction is also conferred (independently of the approval of the Ordinary) by their proper Superior, according to the norm of the constitutions; and it is permitted to him to concede it even to priests from the secular clergy or from another religion" (even those whom the proper Ordinary has not approved).

"2. In an exempt lay religion, the Superior proposes the confessor, who nevertheless must obtain jurisdiction from the Ordinary of the place in which the religious house is located."

Hence a) the bishop concedes jurisdiction for absolving religious even exempt, or pilgrims who confess in his diocese, and therefore the jurisdiction of the confessor is affected by diocesan reservations, as is confirmed by the response of the Commission of Interpretation, 24 Nov. 1920; - unless, however, he has also obtained regular jurisdiction from the exempt superior for his own subjects;

b) the same priest approved in one diocese cannot validly absolve in another, unless he receives jurisdiction from the bishop of this diocese;⁴

⁴ Thus, from the decree of the Provincial Council of Malines of the year 1920, under n. 203, "to priests approved by their Ordinary for hearing confessions, who dwell in a somewhat stable way, that is at least for a week, even only during vacation time, in parishes of districts or deaneries contiguous to a foreign diocese, it is conceded that in deaneries of the foreign diocese bordering their own deanery, within the limits of the province of Malines, they may validly and licitly hear sacramental confessions. Yet foreign priests are not to use this faculty unless they are legitimately called by those whom it concerns."

c) the bishop can concede jurisdiction not only to his own subjects, but also to strange priests for hearing confessions not in their diocese but in his own.

IV. Observations. - 1. Canon 877: "1. Both Ordinaries of places, as regards jurisdiction (even ordinary jurisdiction from can. 149), and religious superiors, as regards jurisdiction or license for hearing confessions, are not to concede it except to those who have been found fit by examination, unless it concerns a priest whose theological doctrine they have ascertained from elsewhere.

"2. If after conceded jurisdiction or license they prudently doubt whether a priest previously approved by them still remains fit, let them subject him to a new trial of doctrine, even if it concerns a pastor or penitentiary canon."

2. Canon 878: "1. Delegated jurisdiction or license for hearing confessions can be conceded circumscribed by certain fixed limits" (namely, as regards time, place, persons: for the whole matter depends on the will of the one delegating).

"2. Nevertheless Ordinaries of places and religious superiors are to beware lest they overly restrict jurisdiction or license without reasonable cause."

Hence a) if a bishop concedes jurisdiction for a determinate category of penitents, it would be invalidly extended to others, even if the limitation appeared altogether irrational;

nevertheless b) if the request and concession are general, the jurisdiction obtained is not limited to the work which was the occasion of the concession: thus jurisdiction conceded on the occasion of spiritual exercises to be given in a convent or pious society permits hearing confessions of other faithful: whatever is not excepted is contained in the concession, whether by express restriction, or by the law itself, as happens for reserved cases.

3. Canon 879: "1. For validly hearing confessions, there is need of jurisdiction conceded expressly in writing or by words. (Whence the Code does not seem to exclude the use of the telegraph or telephone, but excludes tacit or merely presumed concession of jurisdiction, which is given without an intentional sign by a nod alone or would only be given if it were asked; and a fortiori it excludes jurisdiction requested and unjustly denied.⁵⁶ But, jurisdiction having been given, presumed license is not excluded, from can. 874, § 1).

⁵ Fr. Vermeersch, Th. M., III, n. 453, notes: "Nevertheless intimation is not required. Wherefore in an urgent case, jurisdiction could be presumed, as they say, for the present, that is, one who is morally certain concerning the libellus by which he petitions jurisdiction received by the bishop, and concerning the affirmative response given, whether to a procurator or by letter, could, when matters are urgent, already before the letters have been received or before the return of the mandatary, hear confessions." Thus, provided that the moral certainty is founded on an already posited sufficiently certain sign, and not on mere presumption. A certain sign can be a message through a witness or by telegraph. Namely, can. 38 can be applied concerning rescripts by which a grace is conceded without an executor interposed, because jurisdiction is customarily conceded in this way. It must be said otherwise if an office is committed to be executed, e.g., of dispensing in marriage, or of absolving someone from a determinate reserved case (Holy Office, Nov. 1892): then before the authentic letters have been received or notice has been transmitted by the authority of the one conceding, one cannot validly use the rescript, as can. 53 has it.

⁶ This is established from proposition 13 condemned by Alexander VII: "He satisfies the precept of annual confession who confesses to a regular presented to the bishop, but unjustly rejected by him."

"2. Nothing can be exacted for the concession of jurisdiction."

4. Canon 880: "1. The local Ordinary or religious superior is not to revoke or suspend jurisdiction or license for hearing confessions except for a grave cause.

"2. But for grave causes the Ordinary can also forbid the office to a pastor or penitentiary canon, with recourse in devolutive effect to the Apostolic See remaining safe.

"3. Nevertheless it is not licit (although it is valid) for a Bishop, without consulting the Apostolic See, if it concerns a formed house (that is, one which consists of six religious who are not novices, of whom four are priests), to take away jurisdiction from all confessors of some religious house at one and the same time" (that is, collectively).

5. Canon 881: "1. All priests of either clergy approved for hearing confessions in some place, whether furnished with ordinary or delegated jurisdiction, can validly and licitly absolve also vagi and pilgrims from another diocese or parish approaching them, and likewise Catholics of whatever Oriental rite.

"2. Those who have ordinary power of absolving can absolve subjects everywhere on earth."

6. Canon 883: "1. All priests undertaking a sea journey, provided they have duly received the faculty of hearing confessions either from their proper Ordinary (of place), or from the Ordinary of the port in which they board the ship, or even from the Ordinary of any intervening port through which they pass on the journey, can during the whole journey (namely, their journey, and consequently not in the port where they board nor in the port where their journey has its end) hear in the ship the confessions of any faithful whatever sailing with them, although the ship in the journey passes through or even sometimes stops in places subject to the jurisdiction of diverse Ordinaries.

"2. But as often as the ship stops in the journey, they can hear the confessions both of the faithful who for any cause come to the ship, and of those who ask to confess to them when they themselves have come ashore incidentally, and they can validly and licitly absolve them even from cases reserved to the Ordinary of the place."

The concession regards:

1. priests, not, as it seems, the Ordinaries themselves;

2. those undertaking a journey, and not a mere walk or excursion on the sea, by which for the sake of recreation or fishing someone leaves the port for a few hours;

3. one truly maritime, and not on a lake, or only on a river, although it can begin there;

4. during the whole journey, namely, their own, so that the journey has already begun and has not yet ended, and consequently not in the port where they board nor in the port where their journey has its end;

5. they can hear confessions in the ship of any faithful whatever sailing with them in the same ship or in ships of the same class;

6. provided they have duly received the faculty of hearing confessions either from their proper Ordinary, or from the Ordinary of the port in which they board the ship, or even from the Ordinary of any intervening port through which they pass on the journey; but it does not suffice to receive it from the Ordinary of the port in which the journey is ended. The proper Ordinary, as we have noted, is understood as the Ordinary of the place to which someone belongs, not however the Ordinary of religious, whatever some may have thought, both because in the whole context, indeed in the whole chapter, Ordinary is said of the Ordinary of the place, while the Ordinary of religious never there comes under this name, but is constantly called Superior; and because in the new law nothing was changed in this matter in the concession from the decree of the Holy Office, 23 Aug. 1905, whence the rule of interpretation of can. 6, 2, 3, and 4 comes to be applied. And this is now altogether beyond doubt from the authentic response of the Commission of Interpretation, 30 July 1934;

7. besides, where the ship stops, they can hear the confessions of those who for any cause come to the ship and of those who, while they themselves come ashore incidentally, ask to confess. The word "incidentally," from the declaration of the Commission of Interpretation, 20 May 1923, is to be understood as for three full days; not beyond, if the Ordinary can easily be approached. This is also valid if they must leave one ship there and wait for and board another to continue the journey;

8. and they can validly and licitly absolve them even from cases reserved to the Ordinary of the place, even if another approved priest is present.

V. Corollaries. - A. In three ways penitents can be made subjects of those who have ordinary jurisdiction:

1. by reason of domicile or quasi-domicile they are subjects of the bishop or pastor in whose diocese or parish they have domicile or quasi-domicile, according to can. 92;

2. by privilege of state or enrollment in a religious family: thus those who are of the family of Cardinals are reputed their subjects, so that Cardinals can choose for themselves and their family any priest whatever in confession (can. 239); likewise novices, servants, etc., in an exempt clerical religion are subjects of Superiors (can. 875 and 514); likewise those who are subject to a personal pastor, such as sometimes is a chaplain of soldiers;

3. by interpretation of law or custom, now inserted in the new Law; thus vagi and pilgrims become subjects of the bishop or pastor of the place through which they make a journey.

B. Delegated jurisdiction can be conceded by man, that is, by a superior delegating who has the same power; or by law, e.g., for those undertaking a maritime journey (can. 883).

C. It ceases according to can. 207:

a) on the part of the power: 1) when the mandate has been fulfilled, if it was conceded for a determinate case;

2. when the number of cases has been exhausted or the time for which it was conceded has elapsed, provided nevertheless that confession has not been begun, in which case it would endure until the penitent was absolved; - nevertheless, from power conceded for the internal forum, an act posited through inadvertence, after the time has elapsed or the number of cases has been exhausted, is valid;

3. when the final cause of the delegation ceases, e.g., a special faculty conceded for the time of war;

b) on the part of the one delegating: 4) by revocation of the one delegating (or of the successor) directly intimated to the delegated person;

5. when the right of the one delegating is dissolved, namely by his death or cessation from office, when the delegation was given, not until revocation, but at beneplacitum or arbitrium,⁷ or "during my office," "as long as I shall live," or was made for a particular case and confession has not yet been begun;

⁷ Some note that delegation is not extinguished if it is given under the clause: "at the beneplacitum of the dignity," because a dignity does not die. But such a formula seems to us ambiguous, because the abstract noun dignity can be used to designate the person of the superior in the concrete, just as majesty is put for the king and holiness for the Pontiff. Whence in the case attention would have to be paid to the style and mind of the curia.

c) on the part of the delegated person: 6) by renunciation of the delegated person directly intimated to the one delegating and accepted by him;

7. by excommunication of the delegated person or his suspension from office or jurisdiction, but after a condemnatory or declaratory sentence (can. 2264 and 2284).

D. Formerly, from the prescription of the Council of Trent, sess. 23, c. 15, for validly hearing confessions of seculars, even of priests, besides jurisdiction, there was required, even for exempt religious, the special approval of the Ordinary, namely, his authentic judgment concerning fitness for hearing confessions. Whence they were accustomed to say that exempt confessors had approval from the bishop, but received jurisdiction from the Roman Pontiff. - The new Law, however, now nowhere acknowledges approval as distinct from concession of jurisdiction, but establishes that even exempt regulars receive their jurisdiction from the Ordinary of the place (can. 874).

E. Although those who have ordinary jurisdiction can of themselves delegate it to others or extend delegated jurisdiction, nevertheless this is not to be extended to Cardinals, the penitentiary canon, and pastors, because this is provided by law, as is established for the Penitentiary from can. 401; for pastors and those who are in their place, from the authentic interpretation of the pontifical commission, 16 Oct. 1919; for Cardinals it is drawn from can. 239, § 2, when to them is conceded the privilege of choosing a priest as confessor, who then, if he lacks jurisdiction, obtains it by the law itself. All others being excluded, namely the concession of delegated jurisdiction is by express law reserved to the Ordinary of the place, as can. 874 says, who in order to confessions alone has power to delegate; - unless for confessions of those who pertain to an exempt clerical religion, for whom superiors besides can give delegated jurisdiction (can. 875).