§ 2. On Jurisdiction in General

406. Notion. Jurisdiction in the general sense is the moral power of governing some human society, and it includes the power of teaching, judging, and coercing. But the power of governing the domestic society of the family is not jurisdiction but dominative power, since the father or head of the family in many matters has dominion over the very wills of the members of the household. Ecclesiastical jurisdiction is the power of governing, judging, and coercing baptized men in relation to supernatural holiness and beatitude.

407. Divisions. 1. Jurisdiction of the internal forum and of the external forum. The former orders the internal moral relations of the faithful with God. It is sometimes called jurisdiction in the forum of the pole, or in the individual forum, because God ought to be the pole toward which all human actions must be directed. The other jurisdiction, namely, that of the external forum, which is also called jurisdiction in the forum of the forum or in the social forum, orders the external social relations of the faithful with the Church and is publicly exercised.

The internal forum is taken either in the strict sense, when jurisdiction is exercised in the sacrament of penance alone; it is then called the sacramental forum; or in a broader sense, when jurisdiction is exercised even outside the sacrament of penance, but for the conscience of a private man alone. It is then called jurisdiction in the forum of conscience, or extrasacramental jurisdiction. This distinction must be attended to especially in dispensations, which sometimes cannot be given except in the act of sacramental confession, but at other times can lawfully be granted even outside the sacrament for the forum of conscience.

2. Ordinary and delegated jurisdiction. The former is that which is connected with an ecclesiastical office itself duly obtained.²⁷⁹ Such jurisdiction is possessed by: the Pope in the whole Church, and also the Cardinals of the Holy Roman Church for hearing confessions;²⁸⁰ bishops and their vicars general; the canon penitentiary in the whole diocese; exempt religious superiors for their subjects; pastors for their parishioners, as will be stated more fully below. Those who have ordinary jurisdiction can absolve their subjects everywhere in the world, and therefore even outside their own territory.²⁸¹ The other jurisdiction, namely, delegated jurisdiction, is that which, without an ecclesiastical office, is freely conferred upon some cleric either by law or by a man. Simple confessors have such delegated jurisdiction.

²⁷⁹ Code of Canon Law, c. 197, § 1.

²⁸⁰ Ibid., c. 873, § 1.

²⁸¹ Ibid., c. 861, § 2.

408. Necessity. Jurisdiction is necessary by divine law for valid absolution in the sacrament of penance.

The Council of Trent²⁸² establishes: "Since, therefore, the nature and character of a judgment require that sentence be pronounced only upon subjects, it has always been held as certain in the Church of God, and this Synod confirms it to be most true, that the absolution which a priest pronounces upon one over whom he does not have ordinary or subdelegated jurisdiction ought to be of no force." Since the necessity of jurisdiction follows from the very nature of sacramental judgment, it is evident that it is from divine law and not from ecclesiastical law. Hence Boniface VIII²⁸³ says: "It can be introduced by no custom that anyone, without the permission of his superior, may choose for himself a confessor who can loose or bind him." But what can be introduced by no custom is prohibited by divine or natural law. Hence jurisdiction is also altogether necessary for sacramentally absolving from venial sins, or in general for giving any sacramental absolution whatsoever. If St. Thomas is said to have taught the contrary,²⁸⁴ namely, that a simple priest can absolve from venial sins, he must be explained either from the fact that at that time there existed a general custom approved by the Supreme Pontiffs, by virtue of which jurisdiction for absolving venial sins was conferred upon all priests, or from the fact that the Angelic Doctor speaks of the extrasacramental remission of venial sins. If such general jurisdiction truly existed in the time of St. Thomas, nevertheless it was abolished by Innocent XI on February 12, 1679, by the Decree Cum ad aures: "Let bishops not permit the confession of venial sins to be made to a simple priest not approved by the bishop or Ordinary. If confessors, even regulars, or any other priests act otherwise, let them know that they will render an account to God Almighty, and that the just and rigorous punishment of bishops and Ordinaries against transgressors will not be lacking."

By ecclesiastical law it is established that the grant of jurisdiction: a) be express, either orally or in writing; hence a tacit or presumed grant does not suffice; b) be given gratuitously, that is, without remuneration.²⁸⁵

²⁸² Sess. 14, c. 7, On Penance (Denz., n. 903); cf. Code of Canon Law, c. 872.

²⁸³ c. 2, V, 10, in VI°.

²⁸⁴ In 4, dist. 18, q. 2, a. 3, sol. 1 ad 3.

²⁸⁵ Code of Canon Law, c. 879.

409. Ordinary jurisdiction. It was briefly stated above who enjoy ordinary jurisdiction in the tribunal of penance. Concerning the individual persons, the following things are still to be noted:

1. The Supreme Pontiff has the most ample ordinary jurisdiction in the whole world. The Cardinals participate in this jurisdiction for the internal forum; nevertheless, they cannot absolve from the four censures reserved in the most special manner to the Holy See, nor from those which are attached to the revelation of the secret of the Holy Office.²⁸⁶ Legates a latere, nuncios, and apostolic delegates do not have ordinary jurisdiction, but delegated jurisdiction within the boundaries of the territory committed to them.^286a

Theologians encounter difficulties in explaining the manner of jurisdiction possessed by the confessor of the Pope himself. A reasonable explanation seems to be this: the Pope as Pope commits jurisdiction to his confessor, who then by virtue of this jurisdiction absolves the Pope as a sinful man.

2. The local Ordinary has ordinary jurisdiction in his territory, but in such a manner that the Pope can limit it or even suspend it for most grave reasons. Such ordinary jurisdiction is possessed by a residential bishop, a vicar general, and, when the see is vacant, a capitular vicar; an abbot and prelate nullius; a vicar and prefect apostolic. Likewise, those who, when the aforesaid are lacking, meanwhile succeed to the government according to the prescription of law or approved constitutions.²⁸⁷

3. The penitentiary of a cathedral or collegiate church also has ordinary jurisdiction to hear confessions for the whole diocese; and therefore he can even outside the diocese hear the confessions of all the faithful who have a domicile or quasi-domicile in his diocese; but he cannot delegate this jurisdiction to others.²⁸⁸

²⁸⁶ Ibid., c. 239, § 1, n. 1.

^286a Ibid., c. 267.

²⁸⁷ Code of Canon Law, c. 198, § 1.

²⁸⁸ Thus Benedict XIV, De syn. dioec. l. 3, c. 4, n. 3; Code of Canon Law, c. 401, § 1; c. 873, § 2.

410. 4. A pastor has ordinary jurisdiction, but dependently upon the bishop, who can limit or suspend it.²⁸⁹ Per se, indeed, a pastor has approbation and jurisdiction for his parish alone, so that he can sacramentally absolve no one except his parishioners, wherever in the world they may be, and others who wish to confess within his parochial territory. A sufficiently common custom today, however, is that the bishop gives pastors the faculty of hearing confessions throughout the whole diocese. Bishops are also accustomed to grant a general permission that pastors may summon priests of neighboring dioceses for hearing confessions. But then, as is evident, the bishop, and not the pastor, gives approbation and jurisdiction to those priests summoned, since the pastor cannot by his own authority delegate the faculty of hearing the confessions of his subjects.²⁹⁰

The following are equivalent to pastors: a) quasi-pastors; b) actual vicars; c) vicar administrators; d) assistant vicars; e) substitute vicars.

5. Religious superiors in exempt clerical religious institutes have ordinary jurisdiction for hearing the confessions of their subjects.²⁹¹ But not only professed religious are considered subjects, but also a) novices, b) postulants, and c) those who continually share the common table. Hence religious confessors duly approved by their own superior can hear the confessions both of servants residing in the monastery and of resident students without the approbation of the diocesan bishop.²⁹² But day laborers who live outside the monastery and so-called external students are not considered to belong to the household, and therefore the approbation of the bishop is required for hearing their confessions. Religious superiors can delegate both secular and regular priests to hear the confessions of their own subjects.²⁹³ The manner in which this delegation is to be made is customarily defined in individual orders by particular law. For the rest, discussion of the confessions of religious will return below.

6. Military pastors and bishops, who in certain kingdoms have been granted by the Supreme Pontiffs, are accustomed to have ordinary jurisdiction over soldiers and their wives and children. The particular statutes enacted concerning this matter must be attended to.

²⁸⁹ Certain authors did not wish to concede strictly ordinary jurisdiction to pastors, because jurisdiction in the external forum does not pertain to them. Therefore they called the jurisdiction of the pastor quasi-ordinary.

²⁹⁰ Code of Canon Law, c. 874, § 1; Pontifical Commission, October 16, 1919 (Acta Ap. Sed. XI, 477).

²⁹¹ Code of Canon Law, c. 874, § 1.

²⁹² Ibid., c. 875.

²⁹³ Ibid.

411. Delegated jurisdiction can be obtained in two ways, namely, from a man and from the law. From a man, that is, from someone who has ordinary jurisdiction and the faculty of delegating,²⁹⁴ jurisdiction is customarily granted to all confessors who lack ordinary jurisdiction. By the law, whether written or customary, jurisdiction is delegated in certain cases, namely:

1. Any priest, even one suspended, schismatic, or apostate, can absolve a penitent situated at the point of death or in grave danger of death from any sins and censures whatsoever, but for the internal forum alone.^294a Nevertheless, if a dying person thus absolved afterward recovers, recourse is sometimes necessary, as will be stated more fully below at n. 424. Absolution granted in the same danger of death by a priest not approved is also valid, even when an approved priest is present.²⁹⁵ All soldiers mobilized or called to war are also considered to be situated in grave danger of death.^295a

2. Jurisdiction for hearing confessions is granted to all priests undertaking a sea voyage, provided that they have the faculty of hearing confessions either from their own local Ordinary,²⁹⁶ or from the Ordinary of the port at which they board the ship, or even from the Ordinary of any intermediate port, so that throughout the whole voyage they can hear on the ship, or in a port at which they incidentally disembark, the confessions of any of the faithful and can absolve them even from cases reserved to the local Ordinary.^296a If, however, those priests remain beyond three days at an intermediate port, after three days they must seek permission from the local Ordinary, if this can easily be done.²⁹⁷

3. Jurisdiction over travelers and vagrants is now granted by law, so that they can everywhere be absolved by any priest duly approved by the Ordinary of the place where the confession is made.²⁹⁸

4. Jurisdiction is delegated to those confessors whom bishops,²⁹⁹ Cardinals,³⁰⁰ and others having the privilege of confessing to any worthy priest have chosen for themselves.

²⁹⁴ Cardinals, pastors, and penitentiaries cannot delegate jurisdiction.

^294a Pontifical Commission, December 27, 1927 (Acta Ap. Sed. XX, 61).

²⁹⁵ Code of Canon Law, c. 882.

^295a Sacred Penitentiary, March 18 and May 29, 1915.

²⁹⁶ Pontifical Commission, July 30, 1934 (Acta Ap. Sed. XXVI, 494).

^296a Code of Canon Law, c. 883, § 2.

²⁹⁷ Pontifical Commission, May 20, 1923 (Acta Ap. Sed. XVI, 114).

²⁹⁸ Code of Canon Law, c. 881.

²⁹⁹ Ibid., c. 349.

³⁰⁰ Ibid., c. 239, § 1, n. 2.

412. Cessation of jurisdiction. Jurisdiction ceases:

a) by revocation by the delegator or his legitimate successor;³⁰¹

b) by expiration of the time appointed, when jurisdiction was given for a determinate time; if, however, through inadvertence the confessor gives absolution after the time has elapsed or the number of cases has been exhausted, the absolution is valid;³⁰²

c) by certain censures or penalties, namely, if someone is excommunicated by a condemnatory or declaratory sentence, or suspended from office, or interdicted;³⁰³

d) by loss of office through resignation, privation, removal, or transfer, if there is question of ordinary jurisdiction;

e) by the physical or moral death of the delegator, if jurisdiction was given with these or similar clauses: "at our good pleasure,"³⁰⁴ "during my tenure of office." Hence, if the bishop dies or is removed from his see, jurisdictions granted under these clauses expire. But if jurisdiction was given "until revocation," it lasts until it is expressly revoked. For the rest, the clauses appended are to be understood according to the mind of each bishop who appended them.

³⁰¹ Since this revocation is something odious, it cannot licitly be made without a grave cause; indeed, it is not even valid if the bishop, without consulting the Apostolic See, takes jurisdiction away simultaneously from all the confessors of some formed religious house (Code of Canon Law, c. 880).

³⁰² Code of Canon Law, c. 207, § 2.

³⁰³ Ibid., c. 873.

³⁰⁴ Code of Canon Law, c. 183, § 2.