Question II: Concerning the Jurisdiction Which the Church Supplies

St. Thomas, q. 8, a. 6.

I. What supplied jurisdiction is. - When jurisdiction is lacking, whether ordinary or delegated, the Church can supply it, that is, confer it extraordinarily when it was not regularly conferred. Nevertheless she does not do this except for a grave cause, on account of the common good of souls.

This jurisdiction, which the Church supplies, differs from ordinary or delegated jurisdiction in this, that it is conferred only in the very act of confession, and afterward is extinguished, while the other is given before confession and remains after absolution. Moreover there are three cases in which the Church supplies: 1) in danger of death, 2) in the case of common error, 3) in the case of doubtful jurisdiction.

II. Concerning jurisdiction in danger of death, canon 882 is valid:

"In danger of death all priests, although not approved for confession, validly and licitly absolve penitents from any sins whatever, with the prescription of can. 884 and 2252 remaining safe."

It is said: 1) in danger, namely grave or proximate danger, and not only in the article of death, when death already so threatens that it will follow with moral certainty, but also when it is in some way imminent, so that because of circumstances it can occur shortly, as easily and rather often happens. Concerning this one must judge from indications and conjectures, so that it can prudently be feared that death may follow shortly; whence a merely subjective persuasion of the priest or family does not suffice. Nevertheless if someone through error has judged that danger is present, but prudently on account of a grave reason, the absolution will be valid as given in a positive and probable doubt, as will be said in the following number;

2. of death from whatever cause it may come, whether from within, as from a dangerous illness, difficult childbirth, an inflicted wound, extreme old age, or from without, as from a judicial sentence, a difficult surgical incision, an imminent battle, a long and dangerous navigation, etc.; not however, as someone has said, from air travel in ordinary circumstances, because it does not bring proximate danger; but if otherwise, it would not even be licit to establish it;

3. all priests, even irregular, suspended, excommunicated, schismatic, heretical, apostate, provided they have been validly ordained;

4. they validly and licitly absolve from all sins and censures in the internal forum, namely, so that it obtains no effect in the external forum, as the Commission of Interpretation declared, 28 Dec. 1927;

5. with the prescription of can. 884 and 2252 remaining safe; where a twofold restriction is placed: a) according to can. 884, absolution of an accomplice, outside the case of necessity, remains illicit on the part of the confessor; b) according to can. 2252: "Those who, constituted in danger of death, have received absolution from some censure ab homine or from a censure reserved to the Apostolic See in a most special manner, from a priest lacking special faculty, are held, after they have recovered, by the obligation of recurring, under penalty of falling again, to him who brought the censure, if it concerns a censure ab homine; to... someone furnished with faculty (of absolving),... if it concerns a censure by law; and of obeying their commands."

III. Concerning the case of common error and doubtful jurisdiction, can. 209 says:

"In common error or in positive and probable doubt whether of law or of fact, the Church supplies jurisdiction for both the internal and the external forum."

A. The Church supplies in common error: 1) If in a place or community morally all, or absolutely or relatively many, think that someone has jurisdiction, e.g., that he is pastor or approved for confessions; she does not supply if one or another erroneously thinks this, or a private group or an altogether small religious community. Namely the utility of a few is not a sufficient reason for departing from the general rule; moreover, he who has been deceived can be instructed by another and thus correct the defect admitted.

2. Whether, however, the Church supplies if the error is not yet common, but only the foundation of error is known to several, and especially if only a fact has been publicly posited which of itself is apt to induce many into error if they knew it, as many now affirm, calling it virtual error: this can be doubted, both because the cause of error is not yet error, and because the canon wished to settle controversies previously existing, but could not have regard to new questions not yet arisen; for how can the legislator be supposed to have intended what until now had been proposed by no one and what he himself could not even suspect?

3. Nevertheless it is generally asserted, and is valid even in particular error, what we read in can. 207, § 2: "A power having been 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."

4. Since a priest who, certainly knowing in a case of common error that he lacks jurisdiction antecedently to the supplying of the Church, as it were compels her unwillingly to supply, and thus gravely disturbs order, he absolves illicitly unless there is present necessity, and indeed grave necessity, of the penitent. A fortiori he would sin gravely who voluntarily provoked either common error or a grave cause of using it.

B. The Church also supplies in positive and probable doubt, that is, in a serious doubt solidly founded on grave reasons which, when subjected to examination, are neither destroyed nor convince; not however in a light or tenuous doubt: for if no solid reason is present, the doubt is negative, not probable, and the Church does not supply. Moreover the doubt must be objective concerning jurisdiction itself, not subjective concerning the doctrine or knowledge of the confessor about it, as if he himself positively doubts because he did not inquire sufficiently or because he does not well remember what is the norm clearly stated in law, e.g., whether he read in books or heard from a professor that in such a case there is present power of absolving: then namely jurisdiction is not doubtful, but the knowledge of the confessor concerning it is doubtful, nor in the case does the Church supply. But for using jurisdiction, namely in a positive and probable doubt whether of law or of fact, a special reason of necessity is not required. A case can be: doubt whether a superior can delegate, e.g., a bishop for a pontifical case, whether the power of hearing confessions has expired, whether a sin is reserved, whether danger of death is present.

Thus a confessor doubting whether in can. 873 and 514, § 1 those dwelling day and night in a religious house can be understood as those who remain there only one day and night, or whether on the contrary more time is required so that they can be said to be dwelling, will be able to follow the milder probable opinion.