Section — Prümmer, Manuale Theologiae Moralis
§ 5. On the Restriction of Jurisdiction
Preliminary note. Jurisdiction can be restricted or limited in diverse ways, namely: as to persons, if, for example, nuns are excepted from the jurisdiction; as to place, if, for example, jurisdiction is limited to a particular district; as to time, if the power of hearing confessions is granted, for example, for a three-year term; as to certain sins, if the confessor cannot absolve from them. This last restriction of jurisdiction is customarily called the reservation of cases, which must now be treated, leaving aside the other three restrictions, which are easily understood without a special explanation.
418. Reservation of cases. The reservation of cases, as we now speak of it, is the avocation of some case, whether a sin or a censure, to the proper tribunal of the one reserving it, so that no one can impart absolution except the one reserving it, his successor or superior in office, or his delegate.
The reservation of cases is defined by certain authors as the denial of the power of absolving from certain sins when the power of absolving from the others has been granted. But this definition expresses not the primary but the secondary effect of reservation, since its primary note is avocation to a proper and special tribunal.329 Whether the primary or the secondary effect of reservation is considered, however, reservation immediately and primarily affects the confessor, whose power is limited; mediately it also reaches the penitent, who must approach the tribunal of the superior in order to obtain absolution.
329 Code of Canon Law, c. 893.
419. Manner of reservation. A twofold manner of reservation is distinguished, namely, by reason of censure and by reason of sin. The former reservations are called reserved censures, but the latter reserved sins. According to the discipline now in force, all cases reserved to the Supreme Pontiff are reserved censures, with one exception. On the contrary, cases reserved by bishops themselves are customarily reserved sins. For, besides the censures reserved to bishops by law, bishops indeed can impose other censures and reserve them, but are not accustomed to do so. In practice each manner of reservation must be carefully distinguished, since in each manner diverse things are required both for incurring the reservation and for absolution from it.
420. The end of reservation is the good discipline of the Christian people, who in this manner are salutarily deterred from more atrocious sins and are more efficaciously healed when they have committed them.
Concerning this matter the Council of Trent330 teaches: "It seemed to our most holy fathers to pertain greatly to the discipline of the Christian people that certain more atrocious and graver crimes should be absolved not by any priests whatsoever, but only by the highest priests." This discipline is most excellently obtained both on the part of the confessor and on the part of the penitent. For in this manner certain graver and more pernicious sins are reserved to superior judges endowed with more excellent prudence and experience; while penitents burdened with these sins receive a medicinal punishment, because they must undertake the burden of having recourse to a higher confessor, who is not accustomed to impart absolution unless a greater salutary penance has been imposed. Nevertheless, although the reservation of cases is excellent in itself, today it is to be employed sparingly, since faith has become so cold that penitents often care little about reservation, and since no small burden accrues to the confessor from reserved cases which occur. Therefore the Holy Office exhorts Ordinaries that, "speaking generally, they should not wish to apply their hands to this extraordinary remedy unless, after the matter has been discussed in the diocesan synod, or, outside the synod, after the Cathedral Chapter and some of the more approved and prudent curators of souls of their diocese have been heard, they are convinced in the Lord of the true necessity or utility of the reservation."331
330 Sess. 14, c. 7, On Penance (Denz., n. 903).
331 Instruction of July 13, 1916 (Acta Ap. Sed. VIII, 313 ff.). The same is established by the Code of Canon Law, c. 895.
421. The power of reserving cases belongs:
a) To the Supreme Pontiff for the whole Church, who has reserved to himself several censures, but only one sin, namely, the calumnious denunciation of a confessor.332 Cases which are reserved to the Supreme Pontiff are customarily called papal cases.
b) To bishops for their own diocese.333 But let these episcopal cases be: 1. only sins which are truly more atrocious and external, and specifically determined, such as homicide, perjury, the grave striking of parents, and so forth; 2. not too numerous, at most four;334 3. not cases which are already reserved to the Supreme Pontiff, or to which a censure, even if reserved to no one, is imposed by law. Bishops can, however, reserve these latter cases to themselves, that is, cases to which a censure reserved to no one is attached by law, if this seems altogether necessary.335 Not without reason do several authors judge that a reservation by which a bishop reserves to himself a case already reserved to the Roman Pontiff is both illicit and invalid, because it seems incongruous that a bishop should reserve to himself a case from which not even he can absolve by his own authority. Hence Noldin-Schmitt336 infers: "Therefore confessors who have the power of absolving from papal cases can absolve from these, even if the bishop has reserved them to himself."
A capitular vicar cannot reserve cases; nor can a vicar general do this unless he has a special mandate.337
c) To the superiors general of exempt clerical religious institutes and to an abbot sui iuris.338
Ordinarily they could reserve to themselves only the eleven cases called Clementine cases:339 1. apostasy from the religious institute; 2. nocturnal and furtive departure from the monastery; 3. poisonings; 4. ownership contrary to the vow of poverty which is a mortal sin; 5. mortal theft of the goods of the monastery; 6. a voluntary carnal lapse consummated in act; 7. a false oath in a legitimate judgment; 8. procurement, counsel, or assistance toward the abortion of an animated fetus, even when the effect did not follow; 9. the killing, wounding, or grave striking of any person; 10. falsification of the handwriting or seal of the officials of the monastery; 11. the malicious obstruction, delay, or opening of letters directed from superiors to inferiors or from inferiors to superiors. If there was a grave cause for reserving other cases, the consent of the general council was required. Today, however, religious superiors do not seem able to reserve to themselves more than three, or at most four, cases; indeed, cases reserved by the particular law of religious orders seem to be of little practical utility, since any confessor approved by the local Ordinary can absolve from them, as was stated above at n. 416.
332 Cf. below, n. 467.
333 Thus it is evident from the Council of Trent, sess. 14, can. 11, On Penance: "If anyone says that bishops do not have the right of reserving cases to themselves except with regard to external governance, and therefore that the reservation of cases does not prevent a priest from truly absolving from reserved cases: let him be anathema" (Denz., n. 921).
334 Thus the Holy Office in the Instruction cited above, n. 2; Code of Canon Law, c. 897.
335 Thus the Holy Office, l.c., n. 4; Code of Canon Law, c. 898.
336 De sacr.17, n. 373.
337 Code of Canon Law, c. 893.
338 Ibid., c. 896.
339 Constitution of Clement VIII Sanctissimus, May 26, 1593.
422. Conditions required for reservation.340 In order that a sin be considered reserved, it is required that it be:
a) Mortal.
For it would be useless to reserve a venial sin, since no one is bound to confess it.
b) External, even if occult.
Although the Church can reserve even internal sins, nevertheless it never does this, since such a reservation would be of little utility.341
c) Specifically determined.
Namely, it is required that the words of reservation be verified in the strict sense. Hence, for example, if incest is a reserved sin, it is required that true carnal intercourse have occurred and that it was knowingly incestuous. Therefore, if only impure touches were performed, or if intercourse indeed occurred but without knowledge of the incest, the sin is not reserved.
d) Certain.
Therefore, if the sin was doubtful or doubtfully mortal, it is not reserved.
340 Code of Canon Law, c. 897.
341 Cf. Benedict XIV, De syn. dioec. l. 5, c. 5, n. 5; Dominic Soto, In 4, dist. 18, q. 2, a. 5; Instruction of the Holy Office, July 13, 1916.
423. Ignorance of the reservation. The celebrated question is whether reservation is incurred by one who indeed committed the sin, but with ignorance of the reservation which was not gravely culpable.
The answer is made with a distinction: negatively, if there is question of censures reserved by common law; affirmatively, in sins which the bishop by his proper law reserves to himself, unless, however, he himself has established otherwise.
The first part of the answer is today taught most commonly by theologians, at least if the censure itself is unknown without grave fault.342
The reason is that none are punished with a censure except the contumacious, that is, those knowingly transgressing ecclesiastical law.343 But if the bishop himself, by his proper law, reserves to himself a sin together with a censure, which rarely happens, then the intention of the bishop himself must be attended to, since it depends upon him alone whether he wishes to bind those who are ignorant.
The other part of the answer is indeed not certain, but is more probable; and therefore the reservation of a) a sin which the bishop reserves to himself without a censure, and b) the sin of the calumnious denunciation of a confessor, insofar as it is a sin reserved to the Holy See, is incurred even by those ignorant of this reservation.
Thus St. Alphonsus.344 The reason is: a) because reservation is not only a medicinal punishment, but is also, and indeed principally, a bond upon the confessor, whose jurisdiction is limited in this case; b) because reservation seems to be after the manner of an invalidating or disqualifying law, from which no ignorance excuses.345 Hence in practice a penitent who committed such a sin reserved to the bishop is not to be absolved by a simple confessor unless a case of necessity is present.346 Sometimes, however, the bishop tacitly or expressly exempts those who are ignorant from the reservation. A tacit exemption can be admitted if the bishop permits the opinion concerning excusing ignorance to be taught in his seminary. In practice today almost all bishops explicitly declare whether or not they wish ignorance of the reservation to excuse. Thus, for example, before the Code, the bishops of Trier, Brixen, Lausanne, Basel, St. Gall, Chur, and others declared that ignorance did not excuse; on the contrary, the archbishop of Cologne, the bishop of Sion, and others declared that it did excuse. Therefore the practice of each diocese must be attended to in this matter. For the rest, the Code of Canon Law, c. 899, § 1, commands that Ordinaries take care, in whatever manner seems best to them, that the reservations be brought to the certain knowledge of the faithful. Many Ordinaries, however, now establish no reservations, since in some regions they bring little or no utility.
342 Cf. Code of Canon Law, c. 2229. If, however, someone knowing of the censure was ignorant that it was reserved, he more probably incurs the reservation. Cf. St. Alphonsus, Theol. mor. l. 6, n. 580.
343 Cf. below in the tract on censures.
344 Theol. mor. l. 6, n. 581. Göpfert-Staab, Moraltheol.8 II, 147, teaches the contrary.
345 Code of Canon Law, c. 16, § 1.
346 Cf. below, n. 427.