Article — Merkelbach, Summa Theologiae Moralis
Article I: On Jurisdiction in General, Ordinary or Delegated
S. Th., Suppl., q. 8, a. 4 and 5; q. 20, a. 1.
These, in order to confession, differ in three ways:
- Ordinary jurisdiction is given by a superior from mission to some pastoral office by which someone becomes, as it were, the proper priest of the subjects; delegated jurisdiction is from a special personal concession.
- Ordinary jurisdiction is validly exercised everywhere on earth over subjects (can. 881); delegated jurisdiction cannot be exercised outside the territory for which it was granted, unless jurisdiction has there been obtained from the Ordinary of the place.
- Ordinary jurisdiction, according to can. 199, can of itself 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 one delegating is present.
580. Principle I. Who have ordinary jurisdiction for confessions. - On this matter can. 873 holds:
"§ 1. By ordinary jurisdiction for receiving confessions, for the universal Church, besides the Roman Pontiff, the Cardinals of the Holy Roman Church are endowed; for his own territory each Ordinary of a place, and parish priests and others who are in the place of a parish priest."
Cardinals, from their promotion in consistory, are endowed with jurisdiction without restriction, as to all persons and cases, except nevertheless censures most specially reserved to the Holy See, and those which are attached to revelation of the secret of the Holy Office, according to can. 239, § 1. Thus, for example, those are reserved which are brought against those who cast away consecrated species, lay violent hands upon the Roman Pontiff, or absolve an accomplice from a shameful sin.
The Ordinary is also the vicar general or capitular vicar; a vicar, prefect, or apostolic administrator.
A parish priest, apart from subjects, cannot hear penitents and absolve outside his own territory; nevertheless by particular law he generally obtains delegated jurisdiction for the whole diocese.
In the place of a parish priest are the rector of a quasi-parish, a parochial vicar or curate, i.e., the rector of a parish which is united by full right to a moral person, an administrator of a parish or vicar economus, a vicar substituted for a parish priest long absent with the consent of the bishop, an assistant vicar if in all things he supplies for an unequal parish priest: thus according to can. 471-475;1 - likewise sometimes the chaplain of soldiers for his subjects; - but not of itself an assistant vicar, nor assistant vicars.
1 Some add the rector of a diocesan Seminary as to his subjects because of can. 1368; but this can be doubted, because the Church is not judged to grant ordinary jurisdiction when she prohibits it from being exercised habitually over subjects (can. 891).
"§ 2. The penitentiary canon also enjoys this same jurisdiction, even of a collegiate church, a fortiori of a cathedral church, according to can. 401, § 1, and exempt religious superiors for their subjects, according to the constitutions."
The penitentiary has the power of absolving even from sins and censures reserved to the bishop - whether by law or personally by that bishop - strangers in the diocese, and diocesans also outside the territory of the diocese. Nevertheless he does not of himself have jurisdiction over religious women (can. 876, § 1). A religious superior can also be of an exempt lay religion, provided the superior himself is a priest.
"§ 3. This jurisdiction, ordinary jurisdiction, ceases by loss of office, according to can. 183, and after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict."
Therefore before sentence an excommunicated person validly absolves, even licitly if he is tolerated and requested by one of the faithful (can. 2261).
a) Canon 874: "§ 1. Delegated jurisdiction for receiving the confessions of any persons, whether seculars or religious, is conferred on priests, whether seculars or religious even exempt, by the Ordinary of the place in which confessions are received; but religious priests should not use the same without at least the presumed license of their superior,2 while nevertheless the prescription of can. 519 remains firm," i.e., in the case in which a religious penitent approaches for the quiet of his conscience, as will be said in n. 588, A.
"§ 2. Ordinaries of places should not grant 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 should not deny it without grave cause, while the prescription of can. 877 remains firm" concerning the examination of fitness.
b) Canon 875: "§ 1. In an exempt clerical religion, for receiving, even outside the house, the confessions of professed members, novices, or others of whom can. 514, § 1 speaks, namely, those who live in a religious house day and night by reason of service, education, hospitality, or infirm health as long as they habitually reside there, delegated jurisdiction is conferred also, independently of the approval of the Ordinary, by their proper superior, according to the norm of the constitutions; to whom it is permitted to grant 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 found."
Hence: a) The bishop grants jurisdiction for absolving religious, even exempt religious, 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, Nov. 24, 1920; - unless nevertheless he has also obtained regular jurisdiction from the exempt superior for his subjects.
b) The same priest approved in one diocese cannot validly absolve in another, unless he receives jurisdiction from the bishop of this diocese.1
c) The bishop can grant jurisdiction not only to his subjects, but also to outside priests for receiving confessions, not in their diocese but in his own.
- Sometimes by mutual consent among themselves, the Ordinaries of neighboring dioceses delegate confessors of districts adjacent to their diocese. Thus from the decree of the provincial Council of Mechlin of the year 1920, under n. 203, "to priests approved by their own Ordinary for hearing confessions, who reside in a stable manner, i.e., at least for a week, even only for vacation time, in parishes of districts or deaneries of another diocese contiguous to their own diocese, it is granted that in deaneries of the other diocese bordering their own deanery, within the boundaries of the province of Mechlin, they may validly and licitly receive sacramental confessions. Nevertheless, let outside priests not use this faculty unless they are legitimately called by those whom it concerns."
- Otherwise they can sin; nevertheless they absolve validly.
582. Observations concerning certain circumstances of jurisdiction. - 1. Concerning the conditions regarding the liceity of concession, let can. 877 be considered:
"§ 1. Both Ordinaries of places should not grant jurisdiction, even ordinary jurisdiction from can. 149, and religious superiors should not grant jurisdiction or license, except to those who have been found fit by examination, unless it is a matter of a priest whose theological doctrine they have learned from elsewhere.
"§ 2. If after jurisdiction or license has been granted they prudently doubt whether a priest previously approved by them continues to be fit, they should compel him to a new trial of doctrine, even if it is a matter of a parish priest or penitentiary canon."
"§ 1. Delegated jurisdiction or license for hearing confessions can be granted circumscribed within certain definite limits," namely as to time, place, persons: for the whole matter depends on the will of the one delegating.
"§ 2. Nevertheless Ordinaries of places and religious superiors should take care not to restrict jurisdiction or license too narrowly without reasonable cause."
Hence a) if the bishop grants jurisdiction for a determinate category of penitents, it would be extended invalidly 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 granted on the occasion of spiritual exercises to be given in a convent or pious society permits hearing the confessions of other faithful; everything is contained in the concession which is not excepted, whether by express restriction, or by the law itself, as happens for reserved cases.
"§ 1. For hearing confessions validly, there is need of jurisdiction granted expressly, though implicitly, in writing or by words.
"§ 2. Nothing can be demanded for the concession of jurisdiction," otherwise it would be simony.
It must be noted: a) The Code does not seem to exclude the use of telegraph or telephone, but it does exclude 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 requested; and a fortiori it excludes jurisdiction which has been requested and unjustly denied.1
c) Nor is intimation required; whence, says Vermeersch, Th. M. III, n. 416: in an urgent case, jurisdiction could be presumed, as they say, de praesenti, and he who is morally certain that the petition by which he requests jurisdiction has been received by the bishop, and that an affirmative response has been given, whether to a procurator or by letter, could, when matters are urgent, even before the letters have been received or before the return of the mandatary, receive confessions.2
This is so provided moral certitude 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 through telegraph.
"§ 1. The Ordinary of the place or religious superior should not revoke or suspend jurisdiction or license for hearing confessions except for a grave cause.
"§ 2. But for grave causes the Ordinary can even forbid the office to a parish priest or penitentiary canon, with recourse in devolutivo to the Apostolic See preserved.
"§ 3. Nevertheless it is not licit, although it is valid, for a bishop, without the Apostolic See being consulted, if it is a question of a formed house, which consists of six religious who are not novices, of whom four are priests, to take away jurisdiction all at once, i.e., collectively, from all confessors of some religious house."
"§ 1. All priests of either clergy approved for hearing confessions in some place, whether furnished with ordinary or delegated jurisdiction, can also validly and licitly absolve vagi and pilgrims from another diocese or parish who approach them, and likewise Catholics of any eastern rite.
"§ 2. Those who have ordinary power of absolving can absolve subjects everywhere on earth."
"§ 1. All priests undertaking a sea journey, provided they have duly received the faculty of hearing confessions either from their own Ordinary, or from the Ordinary of the port in which they board the ship, or even from the Ordinary of any intermediate port through which they pass on the journey, can, during the whole journey, receive in the ship the confessions of any faithful sailing with them, although the ship on 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 on the journey, they can receive the confessions both of the faithful who for any reason approach the ship, and of those who, when they themselves briefly go ashore, ask to confess, and validly and licitly absolve them even from cases reserved to the Ordinary of the place."
Those things which can. 883 sanctions concerning the faculty of confession for priests having a sea journey hold and are extended to priests making an air journey, and indeed under the same conditions which are established by the Code and the Commission for the Interpretation of the Code. (Motu proprio Animarum Studio of the day Dec. 16, 1947.)
The concession regards:
- priests, not, as it seems, the Ordinaries themselves;
- those undertaking a journey, and not a mere walk or excursion on the sea, whereby for the sake of recreation or fishing someone leaves port for a few hours;
- a truly maritime journey, and not on a lake, or only on a river, although it can begin there;
- during the whole journey, namely, of those priests, so that the journey has already begun and has not yet ended, and therefore not in the port where they board nor in the port where their journey has its end;
- they can receive confessions in the ship of any faithful sailing with them in the same ship or in ships of the same class;
- provided they have duly received the faculty of hearing confessions either from the proper Ordinary, or from the Ordinary of the port in which they board the ship, or even from the Ordinary of any intermediate port through which they pass on the journey; but it is not sufficient to receive it from the Ordinary of the port in which the journey ends. The proper Ordinary is understood to be the Ordinary of the place to which someone belongs, not the Ordinary of religious, both because in the whole context, indeed in the whole chapter, Ordinary is always said of the Ordinary of the place, while the Ordinary of religious never occurs there under this name, but is constantly called Superior; and because in the new law, as to this, nothing was changed in the concession from the decree of the Holy Office, Aug. 23, 1905, whence the rule of interpretation of can. 6, 2, 3, and 4 comes to be applied. And this is now altogether indubitable from the authentic response of the Commission of Interpretation, July 30, 1934;
- moreover where the ship stops, they can receive the confessions of those who for any reason approach the ship, and of those who, while they themselves briefly go ashore, ask to confess. The word briefly, from the declaration of the Commission of Interpretation, May 20, 1923, is to be understood for three full days and not beyond, if the Ordinary can easily be approached. This also holds if there they must leave one ship and await and board another to continue the journey;
- and validly and licitly absolve them even from cases reserved to the Ordinary of the place, although another approved priest is present.
- This is clear from prop. 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."
- Can. 38 can be applied concerning rescripts by which a grace is granted without an interposed executor, because jurisdiction is customarily granted in this way. It must be said otherwise if an office to be executed is committed, e.g., of dispensing in marriage, or of absolving someone from a determinate reserved case (Holy Office, Nov. 14, 1892): then before authentic letters have been received, or notice transmitted by the authority granting, he cannot validly use the rescript, as can. 53 has it.
583. Corollaries. - A. In three ways penitents can become subjects of those who have ordinary jurisdiction:
- By reason of domicile or quasi-domicile they are subjects of the bishop or parish priest in whose diocese or parish they have domicile or quasi-domicile, according to can. 92.
- By privilege of status or enrollment into a religious family: thus familiars of Cardinals are reputed their subjects, so that Cardinals can choose for themselves and their familiars in confession any priest whatever (can. 239); bishops can also do this (can. 349, § 1); 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 parish priest, as sometimes is the chaplain of soldiers.
- By interpretation of law or custom, now inserted in the new Law: thus vagi and pilgrims become subjects of the bishop or parish priest of the place through which they make a journey.
B. Delegated jurisdiction can be granted by man, i.e., by a superior who has the same power of delegating; or by law, e.g., for those undertaking a sea journey.
a) on the part of the power: 1) when the mandate has been completed, if it has been granted for a determinate case;
- when the number of cases has been exhausted or the time for which it was granted has elapsed, provided nevertheless confession has not been begun, in which case it would endure until the penitent was absolved; - nevertheless from power granted for the internal forum, an act placed through inadvertence, after the time has elapsed or the number of cases has been exhausted, is valid;
- when the final cause of the delegation ceases, e.g., a special faculty granted for time of war, delegation for supplying for a sick chaplain if he has recovered before the arrival of the delegate and has resumed office;
b) on the part of the one delegating: 4) by revocation of the one delegating, or of a successor, directly intimated to the delegate;
- when the right of the one delegating is resolved, namely by his death or cessation from office, when the delegation was given, not indeed until revocation, but at pleasure or at will,2 or "during my office," "as long as I live," or was made for a particular case and the confession has not yet been begun;
2 Some note that delegation is not extinguished if it is given under the clause: "at the pleasure of the dignity," because the dignity does not die. But such a formula seems ambiguous to us, 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 sanctity for the Pontiff. Hence in the case one would have to attend to the style and mind of the curia.
c) on the part of the delegate: 6) by renunciation of the delegate, directly intimated to the one delegating and accepted by him;
D. Formerly, from the prescription of the Council of Trent, sess. 23, c. 15, for hearing the confessions of seculars validly, even of priests, there was required, besides jurisdiction, also 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 Supreme Pontiff. - The new law, however, now nowhere acknowledges approval distinct from the 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 the parish priest, because provision is made in law; as for the Penitentiary, this is clear from can. 401; for the parish priest and those who are in their place, from the authentic declaration of the Commission of Interpretation, Oct. 16, 1919; for Cardinals it is drawn from can. 239, § 1, 2, while the privilege is granted to them of choosing a priest as confessor who then, if he lacks jurisdiction, obtains it by the law itself. Namely, all others being excluded, the concession of delegated jurisdiction is reserved by law to the Ordinary of the place, as can. 874 says, who alone can delegate in order to confessions; - unless for hearing the confessions of those who belong to an exempt clerical religion, for whom moreover superiors can give delegated jurisdiction (can. 875).