Question Second: Concerning the Solicitation of a Penitent to Base Things

I. For protecting the sanctity of the sacrament of Penance, ecclesiastical legislation has struck down another abuse by a special discipline and penalties, namely, the crime of solicitation to base things.

Gregory XV, Constitution Universi, 30 August 1622, extended to the whole world the discipline against solicitors already introduced in Spain by Pius IV, 17 April 1561, and in Portugal by Paul V, 16 September 1608, increasing and more accurately determining the penalties to be inflicted, and imposing the burden of denouncing solicitors. The Holy Office began to urge this burden of denunciation under pain of excommunication, 3 January 1623 and 10 March 1677; and declared that it also has force for Orientals, 13 June 1710. But Benedict XIV, in the Constitution Sacramentum Poenitentiae, 1 June 1741, renewed the prescriptions of Gregory XV with the decrees of the Holy Office and proposed them in a more ordered way, and at the same time added a new disposition against false denouncers, whom he willed to be liable to a most special reservation.

Namely, he commands Ordinaries to proceed "against each and every priest, secular as well as regular,... who has attempted to solicit and provoke some penitent, whoever that person may be, either in the act of sacramental confession, or before or immediately after confession, or on the occasion or pretext of confession, or even outside the occasion of confession in the confessional, whether in another place destined or chosen for hearing confessions, with simulation of hearing confession there, to dishonorable and base things, whether by words, or signs, or nods, or touch, or by writing either then or afterwards to be read, or who with them by rash daring has had illicit and dishonorable conversations or dealings. Let each and every priest constituted for hearing confessions moreover remember that they are held and obliged diligently to admonish their penitents, whom they have known to have been solicited by others, as above... concerning the obligation of denouncing to the inquisitors, or to the aforesaid local Ordinaries, the person who committed the solicitation, even if he is a priest who lacks jurisdiction for validly imparting absolution, or the solicitation was mutual between the confessor and the penitent, or whether the penitent consented to the solicitation, or in no way furnished consent, or a long time has now flowed after the solicitation itself, or the solicitation was performed by the confessor not for himself, but for another person."

All these things were confirmed by the Code of Canon Law:

Can. 904: "According to the norm of the apostolic Constitutions and by name of the Constitution of Benedict XIV Sacramentum Poenitentiae, 1 June 1741, a penitent must denounce to the local Ordinary, or to the Sacred Congregation of the Holy Office, within a month, a priest guilty of the delict of solicitation in confession; and the confessor, his conscience having been gravely burdened, must admonish the penitent concerning this burden."

Can. 2368: "1. He who has committed the crime of solicitation, concerning which in can. 904, is to be suspended from the celebration of Mass and from hearing sacramental confessions, or even according to the gravity of the delict declared incapable of receiving these, deprived of all benefices, dignities, active and passive voice, and declared incapable of all these, and in graver cases also subjected to degradation.

"2. But the faithful person who knowingly has omitted to denounce within a month him by whom he was solicited, contrary to the prescription of can. 904, incurs an excommunication latae sententiae reserved to no one, not to be absolved unless after he has satisfied the obligation or has seriously promised that he will satisfy it."

Can. 2363: "If anyone by himself or through others has falsely denounced a confessor to Superiors concerning the crime of solicitation, by that very fact he incurs an excommunication reserved in a special manner to the Apostolic See, from which in no case can he be absolved unless he has formally retracted the false denunciation and, according to his powers, has repaired the damages, if any have followed therefrom, with a grave and long penance besides imposed, the prescription of can. 894 remaining firm."

Can. 894: "The sin reserved to the Holy See by reason of itself is false denunciation, by which an innocent priest is accused before ecclesiastical judges concerning the crime of solicitation."

For the declaration of these things, it is necessary successively to inquire what are: 1) solicitation and its conditions, 2) the connection with the sacrament of Penance or confession, 3) the obligation of denouncing, 4) the mode of denunciation, 5) the penalties to be inflicted upon solicitors, 6) the penalties to be inflicted upon false denouncers. To these we add 7) corollaries concerning doubtful solicitation, and 8) practical rules for confessors.

II. Solicitation to base things is a provocation to a grave sin of lust made by a priest with a certain relation to confession, or by a priest as confessor thus abusing true or simulated sacramental confession.

It is a very grave sin, a) because grave irreverence of sacrilege is inflicted upon the sacrament, and this is against religion; b) because it constitutes scandal against charity, while it inflicts deadly damage on the penitent, offering poison to him in place of medicine; c) because, if the confessor is a pastor, it contains a special injury against justice, since he himself from justice is bound to feed his sheep by word and example.

It is, moreover, 1. a provocation to sin, that is, an action, whether dishonorable of itself, or of itself indifferent, but outwardly manifesting a base affection, by which someone, in the case the confessor, attempts to induce another, the penitent, to some sin, whether explicitly, deliberately and intentionally, or implicitly, so that the mode of acting or speaking of itself allures. Namely, it is scandal given to the penitent, an invitation or incitement in whatever way it happens, by priests, by word or deed, or, as Benedict XIV speaks, "whether by words, or signs, or nods, or touch (on one's own body or another's), or by writing either then or afterwards to be read, they have attempted, or with him have had illicit and dishonorable conversations or dealings (that is, counsels, deliberations, agreements)," provided that the inducement to evil was certain: for in doubt no one is to be deprived of his reputation, and a doubtful law does not oblige; whence a doubtful delict is not judged a delict.

But true solicitation is present

a) whether it is efficacious, so that the person solicited consents, or inefficacious, by which someone merely attempted to solicit or provoke, even if the other person understood only afterwards;

b) whether it is immediate, for obtaining the consent of the penitent, or mediate, either through the penitent, for inducing another person into sin, or by writing afterwards to be read, as some writing concerning base things (prop. 6 condemned by Alexander VII; Holy Office, 11 February 1661, n. 1);

c) with any person of whatever sex, condition, age.

For it matters little whether it is a man or woman, pubescent or impubescent, whether he is solicited to sin with the confessor, or alone, or with a third person, for example, a young man with a girl (Sacred Penitentiary, 2 September 1904); provided that he is capable of solicitation, which one sleeping is not, or, for solicitation by words alone, one deaf or ignorant of the language.

2. It is to base things, that is, inducing to grave acts against chastity, - whether they are grave in themselves, or from an adjoined immodest circumstance, or from lustful affection outwardly manifested, - or to any grave sin of lust whatever, even internal, as of desire or complacency. Hence the crime of solicitation concerning which it is treated is not present:

a) if the provocation was made to another sin, for example, theft or homicide, although by natural right denunciation can sometimes be prescribed (Holy Office, 11 February 1661, ad 11);

b) if it was made to something dishonorable which is not certainly a mortal sin, for example, something merely sensual, a kiss given in passing;

c) if the solicitation is not complete but only preparatory, so that true scandal is not furnished, but only inquiry is made whether the person can be tempted with some hope; yet true solicitation begun suffices.

Hence for judging in practice whether solicitation is present, one must attend whether the words or deeds, if not from themselves, at least from the adjuncts, signify a base affection and provoke to a base affection. Thus, for example, if a priest gives a gift in confession, or commits lightly immodest touches, even pressed or repeated rather often, if he expresses his love toward the person, or his inclination - if he were secular - of marrying her, or recognition or praise of her beauty and attractiveness, if he asks where she lives, or asks her to do what he himself would wish, or requests that she wait for him at home or, on the contrary, that she come alone into the house of the confessor, etc., from the adjuncts and subsequent effect it will have to be seen what the sense is (Holy Office, 11 February 1661, ad 12 and 16): whether these things are done only from imprudence and levity, or perhaps for a good end (for example, for admonishing concerning some danger); or on the contrary from a depraved intention, which sense they would easily have if it were clear that the priest, outside confession, fostered a base love toward that person, or was a man prone to lust.

3. It is by a priest as confessor, of whatever sort he was, whether secular, or regular, whether approved, or not approved but lacking jurisdiction. Hence there is not a special obligation of denouncing from ecclesiastical law:

a) if the one soliciting is not a priest, but an inferior cleric or layman, who feign that they are confessors;

b) also, probably, if he is a bishop, because it is uncertain whether he is designated under the word: priest;¹ although generally he would have to be denounced from natural law;

¹ We read in Fr. Vermeersch, Th. Mor., III (ed. 1923), n. 603, p. 486: "The Code abstained from the word priest, which Benedict XIV used in his Constitution; and since, already before the Code, not a few wished bishops to be comprehended, the studied omission of that word priest in cc. 904, 2363, and 2368 furnishes us a certain argument of the mind by which the legislator wishes no confessor soliciting to be excepted from his decrees... Besides, the very practice of the supreme Congregation stands against the more benign opinion of several." Nevertheless, in all editions of the Code, as many as we have been able to inspect, canon 904, to which the other two refer, has: priest. Nor in the Acta Apost. Sedis, where errata of the Code indicate things to be corrected (T. IX), is mention made of the aforesaid canon. Therefore the reading: priest, is certain. Besides the canon says that one guilty of the delict of solicitation must be denounced according to the norm of the Apostolic Constitutions, by name of Benedict XIV, and these say: priest. And although Fr. Vermeersch adds: "The words... according to the norm of the Apostolic Constitutions are to be referred not to the person to be brought forward but to the delict which gives place to denunciation"; nevertheless this is not certain. Nor ought we to marvel so much that positive law did not attend to the case in which a bishop would solicit, because surely a most rare case could be neglected. But the practice of the Congregation is not an authentic declaration, and can be explained from the sole obligation of natural right; nor is any example of this practice brought forward.

c) if an interpreter, even a priest, employed in confession, solicits;

d) if the penitent alone solicits the confessor to base things.

Even if he merely consents, provided that the consent does not implicitly contain a new solicitation; on the contrary, if the solicitation is mutual, as if the confessor, first solicited to one species, himself solicits to another, or in the beginning dissents and after some time begins to solicit.²

² "Mutual solicitation is had if both do the things which are forbidden, even if one does it having been invited... for example, he who mixes in, even when provoked, base conversations, or words gravely illicit and contrary to chastity," Vermeersch, Th. M., III, n. 603 and 605.

4. It must be with relation to confession or connection with the sacrament of Penance, as will be explained in the following number.

For our case is distinguished:

a) from solicitation made by a priest in the administration of another sacrament without relation to confession; in which case a special denunciation is not to be made from ecclesiastical law (Holy Office, 11 February 1661, n. 10), although nevertheless in certain adjuncts such an obligation can be present from natural right;

b) likewise from the sin of complicity, which can be committed without relation to confession, even before someone has been elevated to the priesthood.

III. The connection with the sacrament of Penance required is present: if solicitation is done by a priest "either in the act of sacramental confession, - or before, or immediately after confession, - or on the occasion, - or pretext of confession, - or even, outside the occasion of confession, in the confessional, whether in another place destined or chosen for hearing confessions, with simulation of hearing confession there."

1. In the act of sacramental confession, that is, between the beginning of confession and the end: namely from the time when confession is begun up to and including the last words of absolution, or, as it is said, between the two crosses of the confessor.

Moreover confession is judged sacramental, provided that it was begun for sacramental absolution, even if it is interrupted and not brought to an end, so that the sacrament has in some way remained incomplete, or the penitent for any cause whatever is not absolved.

2. Or before, or immediately after confession, that is, if between true confession and solicitation there intervenes no external action or conversation which does not refer to solicitation.

Hence the crime of solicitation is present if the confessor immediately before or after confession speaks, from lustful affection, manifestly obscene words, or dishonorably touches the penitent, - or if the penitent, in the act and state of confession, already sitting at the feet of the confessor, asks to confess and the confessor assents and then solicits, even if the penitent now thereafter does not wish to confess, - or if the confessor solicits a woman who after confession approaches to kiss his hand, - or if at once he leads her into a bedroom or sacristy so that there he may solicit more securely, - or if immediately he says: wait a little while, and after an interval (not however the following day) solicits, - or if he consents to a penitent soliciting, but at once desists, and defers the completion to another time (Holy Office, 11 February 1661, n. 2): for thus he detains and confirms the penitent in solicitation.

On the contrary, if another action or another true intermediate thing has intervened, the case is not had, as if the solicitation is done on another day than confession, or after speech concerning indifferent matters or another business, or if the confessor approaches and solicits a person already gone out of the confessional, or after he has heard another penitent, unless nevertheless he began in confession by saying, for example: wait for me a little while, and said thus not for another business than for soliciting.

3. Or on the occasion of confession, that is, if from confession truly sought or made a motive or opportunity is taken for provoking to base things, so that confession is the accidental cause of soliciting the penitent.

Thus, either 1) on the occasion of confession sought: if the penitent, expressly or tacitly, asks to confess at once and, wishing to begin, is impeded from this by the confessor who immediately provokes him, confession having been delayed into the future; or if the confessor approaches a sick person as if about to confess him, called and asked for this, and on this occasion solicits; - or 2) on the occasion of confession heard: if the confessor in confession, or immediately before or after confession, hands to the penitent a note or letters afterwards to be read in which he solicits to base things (prop. 6 condemned by Alexander VII; Holy Office, 11 February 1661, ad 1); or if, knowing the inclinations or temptations of the penitent, he solicits him, provided that it is clear that it is done from hearing confession, by which already then he was impelled to this intention, concerning which it will rarely be clear.

On the contrary, probably at least, he does not solicit on the occasion of confession:

a) who abuses only knowledge drawn from confession, for example, concerning the frailty of the penitent, for soliciting him: then it does not happen on the occasion of the confession itself, but on the occasion of knowledge drawn from confession;

b) who hands to one confessing a note to be carried to another person, whom the confessor thus solicits, provided that the penitent himself is in no way an accomplice: for then the penitent himself is not solicited;

c) who, asked to receive a confession not at once but on another day or hour, indeed, according to some, even now, but not yet sitting in the manner of a confessor nor having the person kneeling before himself, solicits her (Holy Office, 11 February 1661, n. 4): for then it does not happen on the occasion of confession, but on the occasion of the request for confession.

4. Or on the pretext of confession, even if confession has not followed, that is, under the veil or color or appearance, or false allegation, of confession for covering the depraved end, namely if the occasion is taken from a fictive confession and proposed uniquely for this end, that it may serve solicitation. It is not indeed the penitent, but the confessor, who must pretext it, so that he may solicit the penitent.

Thus if he fictively invites some person to confess, that more easily he may induce her to base things, - or if he approaches the house of a sick person and speaks to her concerning confession for removing those standing by, and when they have departed, solicits her, - or if under pretext of confession he asks her to enter the bedroom as if a confessional, and then solicits.

But probably not:

a) he who for eluding others agrees with the person that she feign herself sick: for he does not solicit on the pretext of confession, but merely executes the sin, so that the pretext of confession is not ordered to soliciting, but to deceiving others;

b) nor he who, under pretext of confession, seeks permission from the superior to betake himself to a person whom in reality he intends to solicit: for the pretext is not with respect to the penitent but to the superior, so that by pretext of confession solicitation is not done, but only permission is granted;

c) nor he who, under pretext of confession, invites a person to betake herself to the church, and there, outside the confessional, solicits her: for not the solicitation itself, but only the invitation of approaching the church, was done under pretext of confession;

d) nor he who, outside the time and place of confession, solicits a person and, that she may more easily yield, promises her that he will afterwards hear her confession: the solicitation itself is not done on pretext of confession, but only consent is obtained;

e) nor a fortiori he who merely consents to the person herself calling and soliciting him.

5. Or, even outside the occasion of confession, in the confessional, whether in another place destined or chosen for hearing confessions, but with simulation of confession. These two must be present, so that it is done in a place of confession and at the same time confession is simulated (Holy Office, 11 February 1661, n. 15):

a) simulation or figure of confession is had if they act so that outwardly they seem to institute confession (for example, the priest applying his ears), so that those standing by would deservedly think confession itself is being received. For this there is also required

b) the place of confession: that it be done in the confessional or in the special little structure destined for hearing confessions; - or in another place habitually destined for confessions, where confessions are customarily heard, as are the cell or sacristy where the somewhat deaf are customarily heard, or a parlor destined for confessions of priests (Holy Office, 28 April 1700), likewise the place where the confessions of nuns are heard (Holy Office, 25 November 1874); - or in any other place chosen transiently for confessions according to the adjuncts, as is the bedroom of a sick person, or the sacristy or choir or public square for a time of great concourse of the faithful; - not however in a place chosen precisely for simulating this single confession.

Thus if a penitent who for an end either good (to ask counsel) or evil (to tempt the confessor) comes into a place destined for confessions, and there is solicited with simulation of confession; or if a person wishing to communicate something to the priest is led by him into the confessional and there, confession having been simulated, is solicited; or if both, beginning base conversations, enter the confessional and, with confession simulated, go on in base speech (Paul V, 10 July 1614); - not however if the confessor, sitting in the confessional, but not simulating confession, solicits a person standing or sitting before the confessional (Holy Office, 11 February 1661, n. 15).

IV. The obligation of denouncing solicitors, and indeed grave, is present not only as general from natural right, by which all are obliged to this if it is necessary for removing scandal; but also as special from positive ecclesiastical right, by which solicited penitents are obliged within a month, and indeed under penalty of excommunication latae sententiae reserved to no one.

The end of this precept is not only the amendment of a particular person, but rather the public security of the sacrament and of souls, to be obtained from certain chastisement of the crime and from the unavoidable fear of confessors.

According to this statute of law:

A. All and only priests are to be denounced, even those not approved or lacking jurisdiction (Holy Office, 11 February 1661, n. 5; and 20 February 1867, n. 2), whether secular or regular, of whatever preeminence or dignity (yet episcopal probably excepted, as we noted above), soliciting by themselves; - not however mere interpreters or messengers of solicitation, or those commanding or counseling it, according to the Holy Office, 11 February 1661, n. 6 and 7.

They are to be denounced even if they themselves at once repented of the solicitation made or if, solicitation having been begun, they at once desisted (ibid. n. 2), or if they had been induced by grave fear (ibid. n. 9), or if they solicited a penitent not noticing the malice of the sin (Holy Office, 11 May 1707); - even if the crime had been committed a long time ago and remained occult or cannot be juridically proved (prop. 5 condemned by Alexander VII, 24 September 1665), or no admonition or fraternal correction had preceded (Alexander VII, 8 July 1660); - or they themselves have gone to a distant land or are now amended, indeed if they spontaneously denounced themselves (Holy Office, 26 July 1628), or even have been fully convicted and punished by a judge (Holy Office, 11 February 1661, ad 13), especially if it concerns a new crime or solicitation of another: provided that they are still living; - not however the deceased (Holy Office, 27 May 1707, and 6 March 1839; Sacred Penitentiary, 24 April 1884).

For the end of the law is not only the amendment of the one soliciting, nor only his punishment, but each together; wherefore those who now are amended or now punished are also to be denounced, because the total end of the law has not yet ceased; but not the deceased, because the end can no longer be obtained, but has ceased totally. Wherefore if some have been fully convicted judicially concerning the crime to be denounced, and at the same time appear fully and perfectly amended so that reincidence does not seem to be feared, there would no longer be an obligation of denouncing; but this scarcely has force in practice, for, as De Smet notes, On the Absolution of an Accomplice and Solicitation, n. 86, "with the strict secrecy to be observed in cases of this kind considered, it scarcely is ever clear on account of what crime the priest was convicted and punished."

B. Solicited penitents are obliged to denounce, even if they did not understand the solicitation and only knew it later (Holy Office, 11 May 1707), or, on the contrary (Holy Office, 25 July and 27 September 1624), they themselves consented, or first solicited, so that the solicitation was mutual, since they can keep this silent, indeed even deny it, if, which may it not happen, they are questioned about it (Holy Office, 25 July 1624, and 20 February 1867, n. 6); - even if a long interval of time has intervened (prop. 6 condemned by Alexander VII), the crime remained occult and proof is lacking, or if they promised and swore that they would never denounce, because a promise concerning an illicit thing does not hold, and an oath cannot bind to iniquity; - indeed if denunciation has already been made by another: for the law binds individual solicited persons.

Yet they are excused 1) on account of the death of the priest soliciting, as was said;

2. on account of great extrinsic inconvenience, as long as it lasts (Holy Office, 21 February 1630, and 20 February 1867, n. 5): thus notable damage or grave danger in the goods of life, reputation, or fortune, also, probably, for very near blood-relatives, unless from omission the common good of religion would be gravely endangered; likewise moral impossibility, which in certain regions can rather easily be had, of making denunciation either orally or by letters (Holy Office, 21 February 1630, and 22 January 1727); - not however inconvenience intrinsic to the precept, as fear of some indignation to be incurred with the one soliciting, shame in manifesting the solicitation, danger of light inconvenience or a slight danger of a graver one; nor even danger of one's own infamy or publicity, which is not given on account of the cautions customarily employed;

3. on account of dispensation of the Holy Office, which is rarely conceded; nevertheless it can be sought if the penitent, even irrationally, altogether refuses that he will make denunciation (Holy Office, 20 February 1867, n. 7): for sometimes if there is excessive repugnance of the penitent, or not so great a utility of denunciation, dispensation can be given.

Besides the penitent himself, in the new law it now seems that it cannot be urged that others who certainly know solicitation are obliged to denounce by force of ecclesiastical law. For canon 904 expressly says: the penitent; - although nevertheless excellent authors, such as De Smet and Vermeersch, defend that the ancient law in this matter still has force; but this is not certain. Yet those who knew the matter from professional secrecy never had to denounce; nor did the confessor soliciting himself have to denounce himself (Holy Office, 17 November 1624), although, if he does so, he is treated more mildly and will be immune from vindictive penalties, but not always from medicinal ones (Holy Office, 20 February 1867, n. 13).

C. Confessors are bound under grave obligation to admonish penitents concerning the obligation of denouncing, even if these in good faith are ignorant of the obligation, and it is foreseen that they will refuse to denounce (Holy Office, 20 February 1867, n. 3): for the common good demands this; - with the sole exception of the article of death, lest penitents be cast into danger of damnation. Moreover confessors must teach the obligation of denouncing, the time within which it is to be fulfilled, the penalty to be incurred, the mode of making denunciation. But if penitents, without a grave excusing reason, refuse to denounce, they are not to be absolved, as indisposed (Holy Office, 20 February 1867, n. 5); but the confessor can recur to the Sacred Penitentiary or the Holy Office, to receive instructions or even to obtain dispensation.

Nor are they freed from the burden of denouncing from the fact that they confess before the soliciting confessor himself, who is not bound to admonish them against himself, as is clear from the very words of the pontifical Constitutions; Alexander VII condemned proposition 7: "The mode of avoiding the obligation of denouncing solicitation is if the one solicited confesses with the one soliciting: this one can absolve him without the burden of denouncing."

D. Solicited penitents neglecting to denounce contract excommunication by that very fact. To incur this there is required 1) a certain obligation of denouncing; 2) culpable omission, which supposes knowledge of the obligation, and also of the censure, so that ignorance of this excuses, unless it is affected; 3) the time of one month having elapsed, which runs from the moment at which the solicited person knew the obligation and the time of fulfilling it and the attached censure.

Such a penitent cannot be absolved unless he has made the denunciation, or at least seriously promised to make it; which having been done, he can be absolved by a simple confessor, because the censure is reserved to no one. "But if afterwards, his will changed, he does not denounce, the censure does not revive," says Noldin, Th. M., III, n. 379, "because nothing is had concerning reincidence."

V. Mode of making denunciation. - According to the norm of law:

A. Denunciation is to be made to the Holy Office, or to the Ordinary of the place (can. 904), that is, the bishop, - or abbot nullius, - administrator, vicar or prefect apostolic, - and to him who, when the aforesaid are lacking, succeeds in governance (can. 198 § 1, for example, capitular vicar), or their delegate; - not however to the vicar general without special mandate (Holy Office, 14 July 1753 and 20 March 1901, and can. 2220 § 2), nor a fortiori to religious superiors (can. 501 § 2), who, although they come under the name of Ordinary, nevertheless do not come under the name of local Ordinary (can. 198 § 2).

Moreover of itself denunciation is to be made to the proper Ordinary of the priest soliciting; nevertheless practically it can also be made before the Ordinary of the place in which the delict was committed, or also the Ordinary of the penitent, who then must transmit the received denunciation to the Holy Office or to the proper Ordinary of the one soliciting.

B. Denunciation is to be made personally and orally, by the solicited person herself,

either 1) before the bishop or his delegate, and another ecclesiastical man functioning as notary, and with oath and subscription of name (Holy Office, 20 February 1867, n. 6);

or 2) orally and personally, before the confessor or another ecclesiastical man, to be deputed for this by the bishop, but without the intervention of a notary (ibid. n. 8).

For making this denunciation, in practice ordinarily an extrajudicial denunciation must precede.

This can fittingly be done thus:

a) If the solicited person is able to write, let her herself write to the bishop, by her own hand, and in letters not anonymous but signed with her name and residence, let her explain that she is held to making denunciation and asks that the mode in which it is to be made be indicated, or that a delegated person be sent to receive it; - or also let her manifest the delinquent, reporting the place, time, occasion, turns and individual adjuncts, and also whether it happened in the act of confession, or before or after, also the name and function of the confessor, or, if this is unknown, an accurate description of his person. And let her say that she is prepared promptly to conform herself to instructions to be given by the bishop; adding, if grave reasons are present, that she cannot approach the episcopal curia, but expects that a delegate be sent, or even that the denunciation fittingly be made to the confessor alone.

b) If she does not know how to write, or cannot without grave inconvenience, let her approach the bishop by herself or through a faithful intermediary; - and if she cannot (or does not wish to) do this, it is expedient that (with permission of the penitent) the confessor write (ibid. n. 7), not indeed to carry out denunciation in place of the penitent, but to inform the bishop, under pseudonyms, concerning the fact of solicitation and to request, with the impossibility of the penitent considered, opportune instructions. Yet the confessor is not strictly bound to this; unless exceptionally grave public damage is imminent. And if the confessor does not wish, the penitent will be able to await the occasion of another confessor who will minister this.

The penitent who has admonished the bishop, and is prepared to stand by his mandates, can be absolved; and of itself it suffices that thereafter he await the response of the bishop.

C. The Ordinary, according to the Instruction of the Holy Office, 20 February 1867, n. 10, must diligently inquire whether the denouncing person is worthy of faith, and, before proceeding against the one denounced, have ascertained "that the women or men denouncing are of good name and are not led to accuse either by enmity or by another human affection."

"Therefore the Ordinary, as often as he has received some denunciation concerning the infamous crime of solicitation, will immediately proceed to diligences (that is, judicial investigation concerning the reputation of the denounced and denouncing person). To this end, either by himself or through a priest specially delegated by him, he will call (separately, namely, and with the circumspection he must use) two witnesses, as much as can be done, from the ecclesiastical group, each above every exception, who know well both the one denounced and each and every one denouncing, and under the sanctity of an oath concerning telling the truth and preserving the secret of the Holy Office, he will question them judicially, referring the testimony in writing according to the following formula; but he will transmit an authentic copy of each testimony and at the same time of the respective denunciation directly and by a safe way to this Supreme Congregation as soon as possible. But if two witnesses only cannot be found who know at once the one denounced and each and every one denouncing, several must be called. Namely, in this case so many witnesses as above will have to be called that a double testimony may be had as to the one denounced and as to each one denouncing." Thus the Instruction of the Holy Office, 6 August 1897, from which it follows that the bishop now cannot proceed judicially against the one denounced before he has transmitted the aforesaid documents to the Holy Office and received a response from it.

VI. Penalties against solicitors are ferendae sententiae. Yet they cannot immediately be inflicted from the first denunciation, unless perhaps reputation is evil and the one denouncing is above every exception; but the practice is that

1. after one or another denunciation, as suspect of the crime, the denounced confessor be observed;

2. or even that he be paternally admonished or, if the crime is certain, subjected to salutary penance, such as: removal from the place of the crime, spiritual exercises to be performed;

3. after the third denunciation he be called to judgment. This supposes that the guilty person is admitted to defense.

Moreover three penalties can be inflicted (can. 2368, § 1): a) suspension from the celebration of Mass; b) suspension from hearing confessions or inability for them; c) deprivation of benefice, active and passive voice, dignity, and inability for these; indeed, in graver cases, degradation. - Censures, because they are ferendae sententiae, are judged to be from man (can. 2217, § 1, 3); whence they cannot be remitted except by the Ordinary who inflicted them, or by the competent superior (can. 2245, § 2).

But if the guilty person appeared spontaneously and sincerely confessed the delict, he must be dismissed admonished and punished by penance; unless a denunciation has already been made, in which case the penalty will be diminished (Holy Office, 20 February 1867, n. 13).

Solicitation itself is not subjected to reservation; whence, if all other requirements are present, it can be remitted by a simple confessor (Holy Office, 13 September 1859, ad 3), unless nevertheless the case of absolution of an accomplice is present at the same time; - but the penitent priest is to be admonished not to receive the confession of the person solicited, so that thus he may avoid danger of relapse.

VII. Penalties against false denouncers. - Innocent confessors are to be protected from those falsely denouncing. Wherefore those falsely denouncing by themselves or through others (for example, through a confessor) incur a grave penalty, and indeed a twofold one:

a) False denunciation before ecclesiastical judges is a sin reserved by reason of itself to the Holy See. Thus from can. 894. To incur this it is necessary:

1. that a priest be denounced as guilty of solicitation properly so called, namely, in connection with confession, as was explained above;

2. that the denunciation be false (materially and formally), so that the confessor is not known to be guilty of this delict, although perhaps he is guilty of other similar delicts;

3. that the denunciation was made before ecclesiastical judges, which several understand in the stricter and formal sense concerning judicial denunciation. And, if it must be understood thus, which nevertheless is not certain, an anonymous denunciation, or a simple signed letter, would not suffice.

Ignorance does not excuse from the aforesaid reservation, because reservation of sin is not a mere penalty, but principally and immediately a calling to the tribunal of the superior and therefore a restriction of the power of the confessor, which only mediately affects the penitent (can. 893, § 1), and because no ignorance excuses from an incapacitating law (can. 16, § 1).

De Smet nevertheless judges the contrary, because according to the Benedictine Constitution that reservation is a medicinal penalty, from which, according to can. 2229 § 3, ignorance excuses if it is not crass. But this no longer has force in the new law, in which it is expressly said (can. 893) that reservation limits the power of the confessor, and in the immediately following canon (894) false denunciation is said to be the only sin reserved by reason of itself to the Holy See. Therefore it is no longer principally a medicinal penalty, but a calling to the tribunal of the superior and a restriction of jurisdiction; as is now generally acknowledged. - Besides, practically ignorance is rarely present, since denouncing persons must be admonished by the judge or delegate concerning the reservation.

b) False denunciation made before superiors incurs excommunication reserved in a special manner to the Supreme Pontiff. Thus from can. 2363. By these altogether general terms there seems to be comprehended not only strictly juridical denunciation before judges formally acting as such, but any denunciation directed to superiors even by letter; not however an anonymous one, since it has no force (Holy Office, 20 February 1867, n. 6). Surely, not only the denunciation which is made in the judicial instruction itself, but also that which seeks this and advises concerning instruction to be made against someone, is now made before superiors as such.³

³ Here also that has force which De Smet notes, o. c., n. 123 (striving to demonstrate that even an extrajudicial denunciation before a judge is a sin reserved by reason of itself), namely that otherwise "often there would be no place for the case of false denunciation in not a few places, in those not rare cases in which the Bishop proceeds in the case of solicitation from informed conscience, since then recourse to juridical denunciation is not required and often in fact recourse is not had; too often that penal law providently introduced would be eluded."

Yet ignorance excuses from the penalty, not indeed of the reservation alone, but of the censure, not however crass nor affected. From the penalty itself no one can be absolved unless:

1. he has formally retracted the false denunciation before the superior, or has already placed a means sufficient for this, or, if here and now it is impossible, has seriously promised this;

2. he has repaired according to his powers all damages following from the calumnious condemnation;

3. he has accepted a grave and long penance. Grave is that which for grave fault in the sacrament must of itself be given; long is that which lasts for about six months or beyond, with the quality of the person and the nature and frequency of the work imposed considered.

From all these things it follows:

1. the reserved censure extends more broadly than the sin reserved by reason of itself;

2. nevertheless the reservation of the sin can be contracted without the reservation of the censure being contracted, for example, on account of ignorance;

3. the reservation of the censure sometimes ceases, without the reservation of the sin ceasing, and conversely the reservation of the sin ceases, for example, in the case of a sick person who cannot leave home, without for that reason the reservation of the censure ceasing;

4. he who can absolve from one cannot always absolve from the other;

5. accomplices also are reached by each reservation, since they denounce through others; namely, those commanding, mandating, giving counsel, asking, promising, threatening, etc., in one word all who concur positively and efficaciously in the false denunciation.

VIII. Corollaries concerning doubtful solicitation. - 1. In doubt whether an action exercised or words uttered bear before them and signify solicitation, if there is doubt only concerning the intention of the confessor, the end is presumed to have been present consonant with the action exercised or the words uttered.

2. If the external action, not only according to itself, but also with all circumstances and indications considered both on the part of the matter and on the part of the agent, remains ambiguous, so that the delict is truly doubtful, the more benign parts can be preferred and denunciation is not of precept.

3. If the solicitation is certain, but there is doubt concerning the person, denunciation is to be made so that the superior can inquire concerning the person soliciting, if inquiry can easily be made without danger of defaming an innocent person; whence: a) it will have to be denounced if probable hope is present that the judge by his diligence can detect the unknown guilty person; b) on the contrary, he who remains doubtful between two persons and would have to indicate each in denunciation, for the most part should abstain from denunciation lest he harm the reputation of an innocent person.

IX. Practical rules for confessors.

A. Toward the priest soliciting.

The confessor hearing a priest guilty of solicitation:

1. of itself can absolve him, because solicitation is not a reserved case (Holy Office, 15 September 1859, ad 3); yet one already punished and suspended, he cannot absolve from suspension, because - as ferendae sententiae - it is as if from man and therefore reserved;

2. let him not absolve unless he first places the enormity of the crime before his eyes and excites him to more fervent contrition, yet encourages the contrite one also to full confidence in the infinite mercy of God;

3. let him require that he repair scandal, and in the future abstain from hearing the confessions of the person solicited;

4. but let him not absolve a relapser, after penance relapsed several times or with respect to several penitents, unless he has brought extraordinary signs of contrition and has previously promised to lay aside the office of confessor, which is a proximate occasion for him, or to request transfer to another place where he is exposed to lesser danger; or, if these are impossible, unless at least he has promised to employ altogether more efficacious remedies of a very fervent and mortified spiritual life;

5. let him diligently examine whether the soliciting priest has not sinned with the penitent, and absolved an accomplice, which having happened there would be present the case of absolution of an accomplice, which is struck by an excommunication most specially reserved to the Supreme Pontiff, concerning which we spoke above, Qu. 1, n. IX.

B. Toward the solicited penitent.

The confessor hearing in confession that a person was solicited:

1. let him diligently examine whether the denouncing person is worthy of faith: for often little women from envy, hatred, vengeance, jealousy, levity, hysteria, and other causes narrate concerning a confessor things altogether false, or, because their solicitations were repelled, accuse an innocent person; whence if he doubts concerning the veracity of the person, let him admonish concerning the atrocity of false denunciation, saying also that it is a case reserved to the Supreme Pontiff. But let him beware lest he inquire into the name of the one soliciting;

2. let him inquire whether the obligation of denouncing is certain; but if he cannot immediately judge the matter, let him admonish the penitent to return to him another day, and, if the penitent cannot (or does not wish to) do this, let him order him to speak with another confessor concerning it and obey him;

3. if the case is certain, let him admonish concerning the obligation of denouncing, even under the penalty of excommunication imposed; from making which admonition, on account of the public good, no good faith in the penitent excuses (Holy Office, 20 September 1867, n. 3);

4. if the penitent promises to denounce, sometimes prudence will teach that absolution be granted only after denunciation has been made, and especially a) if the penitent has not yet brought to completion denunciation promised on another occasion; b) if indeed he promises but with rather great resistance, or if some difficulty in denouncing is foreseen; c) if immediately (morally) he can complete the denunciation. Yet if the promise is sincere and absolution cannot conveniently be deferred, he can immediately be absolved;

5. if the penitent does not wish to denounce, let him inquire whether there is a grave excusing cause; and if it is present, the penitent can be absolved provided that he promises that he will denounce if the cause ceases or urges less (Holy Office, 21 February 1630, 20 May 1842, and 20 February 1867, n. 5);

6. if there is no truly excusing reason, let him persuade the penitent, in the best way he can, to denounce. For persuading him efficaciously to this, let him oppose to the vain excuses of the penitent the gravity of sacrilege in the priest soliciting, the necessity in every way in so grave a matter of obeying the laws of the Church, and the penalty of excommunication to be incurred; and let him show that there is no danger of infamy because the penitent is not bound to manifest consent, and the confessor himself can be delegated to receive the denunciation, and the one soliciting who is denounced is customarily called into judgment only after three denunciations;

7. if nevertheless the penitent altogether does not wish, let him dismiss him - as indisposed - without absolution, and cause him to return to him at another time, meanwhile recurring to the Ordinary, or to the Sacred Penitentiary or the Holy Office, that he may obtain instructions, or even dispensation. For from the Sacred Penitentiary it is sometimes obtained that the penitent be dispensed from the obligation of denouncing; or, the name of the soliciting priest having been indicated, that he can hide his own;

8. let him attend whether the penitent who consented to the solicitation was also the accomplice of the priest in a base sin, and perhaps was absolved by him; in which case account would have to be taken of the confessions which were invalid, as was set forth above in Q. 1.

X. Document: Letters of denunciation. Since it can happen to any confessor that he is delegated by the Ordinary for receiving from a penitent the denunciation of a soliciting priest, let it please us here to append the mode of receiving denunciations to be transmitted without the intervention of a notary, according to the Instruction of the Holy Office, 20 July 1890.

"From the mandate of the Most Illustrious and Most Reverend Bishop Ordinary N.N., given on the day... there personally appeared, having been called, on the day... before me the undersigned, standing in (he will note the place where it is gathered for receiving the act), for this act specially delegated by the Most Illustrious and Most Reverend N., N.N., unmarried (or married), living in this city N.N., in the parish N.N., daughter (or wife) of N.N., of her age..., of civil condition (or agricultural, or assigned to domestic service), to whom, the oath of telling the truth having been offered, which she furnished by touching the Holy Gospels of God, was

"Interrogated. Whether she knows or imagines the cause of the calling and of the present examination?

"Resp. ...

"Interrogated. For how many years has she been accustomed to approach the Sacrament of Penance?

"Resp. ...

"Interrogated. Whether always before one and the same Confessor she has received the Sacrament of Penance, or before several Priests; moreover whether in one and the same or in several churches?

"Resp. ...

"Interrogated. Whether from each Priest to whom she confessed she received holy admonitions and opportune precepts which would edify the examined woman and keep her away from evil, and insofar as etc.?

"Resp. ...

"To be noted. If the response was affirmative, that is, if she says that she was always directed well, then she is interrogated in the following mode:

"Interrogated. Whether she knows or remembers having ever said or heard that some Confessor did not bear himself so holily and honorably toward penitents; whether murmurs, or contemptible words against this Confessor were uttered: for example, that the examined woman herself heard similar things from one or several penitents and one year ago, or four or three months ago?

"To be noted. If after this interrogation and observation the examined woman continues to deny, let the act be closed in the customary form, which stands at the foot of this instruction.

"But, if she has opened anything concerning some Confessor according to those things concerning which she is questioned, she will be further interrogated as follows:

"Interrogated. That she set forth the name, surname, office, age of the Confessor, and the place or seat of confession; whether he is a secular or regular presbyter, and insofar as etc.

"Resp. ...

"Interrogated. That she set forth in order, sincerely and clearly, all those things less honorable which in sacramental confession or before or after or on the occasion of confession she heard from the aforesaid Confessor: or whether something was dishonorably done by the same with her by nods, touches, or work, and insofar as etc.

"To be noted: in this place the judge will carefully see that the base conversations, seductions, invitations of meeting in some place for an evil end, and all other things which constitute the crime of solicitation, be reported in the same words which the Confessor used, the vernacular language being employed, in which the responses will diligently and according to the truth be written out; let him give courage to the examined woman, if he notices that by excessive fear or shame she is impeded from making the truth manifest, persuading her that all things are to be pressed under inviolable secrecy. Finally he will inquire the time from which the solicitations began, how long they endured, how often repeated, by what words and acts redolent of an evil end they were expressed. He will diligently beware of inquiring into the consent of the examined woman herself to the solicitation, and of any interrogation which betrays a desire of knowing her sins.

"Interrogated. Whether she knows or has heard it said that the aforesaid Confessor solicited other penitents to base things; and insofar as she should name them (and here he will order the name, surname, and at least clearer indications by which the other solicited persons can be detected).

"To be noted: If perhaps other solicited persons are brought in, it will belong to the judge himself prudently to call them and to examine each singly according to the form set forth above.

"Resp. ...

"Interrogated. Concerning the reputation of the aforesaid Confessor both before herself and before others?

"Resp. ...

"Interrogated. Whether she has deposed the aforesaid things from love of justice and truth, or rather from some affection of enmity or hatred, and insofar as etc.

"Resp. ...

"Which things having been had and accepted, she was dismissed, sworn concerning preserving silence, again by touching the Holy Gospels of God, and, her examination having been read back to her, in confirmation of the premises she subscribed herself (if she was illiterate, let it be said: and since she did not know how to write, she made the sign of the Cross).

"(Signature of the person examined.)

"These things were done by me N.N., specially delegated as above by the Most Illustrious and Most Reverend Prelate N.N."

Then he transmits the entire act directly to the proper Ordinary delegating him (safely, namely, lest perhaps it be lost), together with the instruction and letters received, retaining absolutely nothing with himself.