Article II: On Supplied Jurisdiction

S. Th., Suppl., q. 8, a. 6.

584. What supplied jurisdiction is. - When jurisdiction is lacking, whether ordinary or delegated, the Church can supply it, i.e., extraordinarily confer it while it has not been regularly conferred. Yet 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, whereas the other is given before confession and of itself remains after absolution. 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.

585. Principle I. On jurisdiction in danger of death. - Canon 882 is in force:

"In danger of death all priests, although not approved for confession, validly and licitly absolve penitents from any sins or censures whatever, however reserved and notorious, even if an approved priest is present, with the prescription of can. 884 and 2252 preserved."

It is said:

1. In danger, namely grave or proximate, and not only in the article of death, when death already so presses on that it will follow with moral certitude, but also when it is somehow imminent, so that, because of the circumstances, it can occur shortly, since this happens easily and rather frequently. Concerning this one must judge from indications and conjectures, so that it can prudently be feared lest death follow shortly; hence the merely subjective persuasion of the priest or of the family does not suffice. Nevertheless, if someone through error has judged that the danger is present, but prudently and because of a grave reason, the absolution will be valid, as having been given in a positive and probable doubt, as will be said in the next number;

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

3. all priests, even irregulars, suspended priests, excommunicated persons, schismatics, heretics, apostates, provided they have been validly ordained;

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

5. with the prescription of can. 884 and 2252 preserved; where a twofold restriction is added: a) according to can. 884, the absolution of an accomplice, outside the case of necessity, remains illicit on the part of the confessor (n. 635); b) according to can. 2252: "Those who, being constituted in danger of death, have received absolution from some censure ab homine or from a censure reserved in a most special manner to the Apostolic See from a priest lacking a special faculty, are bound, after they have recovered, by the obligation of recurring, under penalty of reincidence, to him who inflicted the censure, if it concerns a censure ab homine; to... someone endowed with the faculty (of absolving),... if it concerns a censure a iure; and of obeying their mandates" (cf. n. 682, B).

586. Principle II. On the case of common error and of doubtful jurisdiction. - Canon 209 is in force:

"In common error or in a 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. In order that the Church supply jurisdiction, there is required error, i.e., a false judgment concerning someone's jurisdiction, whether ordinary or delegated. Yet it is not necessary that there be error in fact among many persons (common error in fact), but it suffices that the foundation of the error, namely the fact on which the error is founded, be known to several. Indeed it suffices that some fact, which of itself is apt to induce many into error, has been placed publicly. Therefore it does not matter whether many in fact have approached him to whom they erroneously ascribe jurisdiction, or whether many have in fact been led into error, but whether there is a public fact which is apt to induce not one or another, but anyone indeterminately, into error (common error of law, virtual, interpretative). Nor is it necessary that there be a colored title, or an act on which the right rests but which labors under a hidden defect. A putative title suffices, namely one which is believed to be present when in reality it in no way exists. Thus he who is the putative parish priest validly assists at marriage.

2. According to the interpretation of the Commission for the Interpretation of the Code on March 26, 1952, "can. 209 is to be applied in the case of a priest who, lacking delegation, assists at marriage." This is in force not only if it is a question of an estimated delegation to the universality of matrimonial cases, but also of delegation to one determinate act.¹

¹ Cf. A. Delchard, Nouvelle Revue Theologique, 1952, pp. 1087-1090.

3. Nevertheless it is generally asserted, and it is also in force in particular error, that which we said above from can. 207: "With power granted for the internal forum, an act placed through inadvertence, after the time has elapsed or after the number of cases has been exhausted, is valid."

4. Since a priest who, certainly knowing that, in a case of common error, he lacks jurisdiction antecedently to the supplying of the Church, compels her, as if unwilling, to supply, and thus gravely disturbs order, he absolves illicitly unless there is a necessity, and indeed a grave one, 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 a positive and probable doubt, i.e., one seriously and solidly founded on grave reasons which, when subjected to examination, are neither destroyed nor overcome; but not in a light or slight doubt. For if no solid reason is present, the doubt is negative, not truly probable, and the Church does not supply. The doubt must be objective concerning the jurisdiction itself, not subjective concerning the doctrine or knowledge of the confessor about it; as if he himself positively doubts because he has not sufficiently inquired or because he does not well remember what the norm clearly expressed in law is, e.g., whether he read in books or heard from a professor that in such a case the power of absolving is present: then, namely, the jurisdiction is not doubtful, but the knowledge of the confessor about it is doubtful, and in the case the Church does not supply. But for using doubtful jurisdiction, in a doubt, namely, positive and probable, whether of law or of fact, a special reason of necessity is not required. A case can be: a doubt whether the superior can delegate, e.g., a bishop for a pontifical case; whether the power of hearing confessions has expired; whether the sin is reserved; whether danger of death is present.

Thus a confessor doubting whether in can. 875 and 514, § 1, by those staying day and night in a religious house there can be understood those who remain there for only one day and night, or whether, on the contrary, more time is required in order that they can be said to be staying, will be able to follow the more benign probable opinion.