Chapter I: The Power Required and Sufficient

— "The minister of this sacrament is only a priest" (c. 871). Besides the power of order, for the valid absolution of sins there is required in the minister the power of jurisdiction, whether ordinary or delegated, over the penitent (c. 872).

The power of order is required because it is a sacrament; the power of jurisdiction, because it is an institution after the manner of a judgment. Opportune is the warning given us by the Code that jurisdiction is something relative, not only with respect to the matter, as the power of order itself is, but also with respect to persons. Wherefore the discussion is of jurisdiction over the penitent. Moreover, priestly order is required only for the absolution of sins. Jurisdiction for removing censures or ecclesiastical penalties can validly be granted by a competent ecclesiastical Superior to any cleric, indeed, by the Supreme Pontiff even to a non-cleric. To this pertain certain absolutions which in the time of St. Cyprian some deacons conferred.

The Council of Trent, sess. XXIII, ch. 25 De regularibus, in order suitably to compose the privileged jurisdiction of regulars with the authority of the local Ordinary, began to require, for validly absolving seculars, either a parochial benefice or approval from the bishop. This approval, strictly taken, as distinct from jurisdiction, implied, besides a judgment concerning suitability, the consent of the local Ordinary that one could use his jurisdiction. Often, however, the bishop intended at the same time to grant jurisdiction to the confessor whom he approved, so that most regular confessors drew jurisdiction from a twofold source: from the source of pontifical privilege, through their proper Superiors, and from the source of the diocesan prelate. Concerning approval which must be joined to jurisdiction the Code says nothing expressly. Yet from the tenor itself of c. 874, §1, it is sufficiently evident that this is the mind of the Code: that not even exempt religious should have any jurisdiction available for commonly absolving seculars without the faculty of the local Ordinary. Nevertheless a formal and express revocation of the privilege by force of which regular Superiors conferred jurisdiction for absolving seculars is read in no canon. But because of the perpetual necessity of diocesan jurisdiction, it has become so useless that it seems to be among those things which are to be abrogated by desuetude.

Because jurisdiction is required, the power of the Church to prescribe the manner of exercise even for the very value of the act is made more manifest.

— This jurisdiction, moreover, can be either ordinary or delegated.

Those who possess ordinary jurisdiction can absolve subjects everywhere in the world; while in delegates there is required jurisdiction given by the Ordinary of the place where confessions are heard, unless the penitents can be absolved by force of jurisdiction communicated by a religious Superior as such. The priest also whom either a Cardinal or a bishop, even titular, has chosen as confessor for himself and his household obtains by the law itself, everywhere, jurisdiction available for hearing them (cf. c. 239, §1, 2°, and 349, §1, 1°).

But, contrary to the general statute of c. 199, §1, ordinary jurisdiction for sacramentally absolving penitents can be delegated only by those whom cc. 874 and 875 indicate as delegators.

This was gathered from the mind of the legislator, and now it is authentically established concerning pastors and vicars of pastors, from the response of the Pontifical Commission, October 16, 1919, ad 3 (A.A.S., t. XI, 1919, p. 477).

But jurisdiction, both ordinary and delegated by the local Ordinary, is valid for hearing vagi, travelers from another diocese, and Catholics of the Oriental rite (c. 881).

— 1. Ordinary jurisdiction ceases for all by loss of office; and by excommunication, suspension from office, and interdict, but only after a condemnatory or declaratory sentence has been issued against him who is subject to these penalties (c. 873, §3).

And so, before a sentence of this kind, one excommunicated validly hears and absolves penitents; and licitly if he is tolerated and is requested by a member of the faithful (cf. c. 2261 and n. 211). In danger of death, every priest validly and licitly helps the dying person who asks.

2. Delegated jurisdiction is extinguished when the mandate has been completed, when the time has elapsed, or when the number of cases for which it was conceded has been exhausted; when the final cause of the delegation ceases (as if someone is delegated to supply for a sick chaplain, and he, before the arrival of the delegate, recovers and resumes the office); by revocation directly intimated to the delegate, or by renunciation directly intimated to the delegator and accepted by the same; also when the right of the delegator is resolved, if nevertheless this appears from the clauses, or the power was made only for sacramentally hearing persons expressed in the rescript or indult, and the matter is still intact (cf. cc. 207 and 61). Thus jurisdiction conceded "at our good pleasure," from c. 73, and more clearly "as long as I live," or "during my office," ceases by the death of the delegator; but not that which is conceded "until revocation."

3. Nevertheless, a priest validly absolves who inadvertently uses jurisdiction after the time has elapsed or the number of cases for which he had it has been exhausted (c. 207, §2).

— Revocation or suspension of jurisdiction is not to be done without a grave cause. If, nevertheless, this exists, the Ordinary can prohibit the office of confessor even to a pastor or penitentiary, with recourse in devolutive effect to the Apostolic See remaining safe. But, without consulting the Holy See, it is not lawful for a bishop to take jurisdiction away all at once from all the confessors of a religious house, if the house is formed (c. 880, §3).

This canon is written in such a way that it leaves untouched the authority of Ordinaries, who therefore always validly take jurisdiction away, even if the revocation is prohibited. For it permits only recourse in devolutive effect to the pastor or penitentiary himself who has been revoked or suspended from hearing confessions, so that, until the Holy See has admitted the recourse, the episcopal decree produces its effects. Toward religious, however, the bishop is prohibited from exercising only a collective revocation, if it concerns a formed house. Nothing prevents the bishop, for grave causes, from suspending several confessors of the same religious house successively and individually, even if none should now remain endowed with diocesan jurisdiction.

— "Delegated jurisdiction or the license of hearing confessions can be conceded circumscribed by certain limits. Let local Ordinaries and religious Superiors beware, however, lest without reasonable cause they restrict jurisdiction or license too much" (c. 878).

The most usual limitation is had in reservations of cases, about which we shall treat below. By reason of younger age, many Ordinaries also are accustomed to concede jurisdiction to priests who are not yet 30 or 35 years old for hearing only men. It also happens that for hearing girls boarding with religious women, a special jurisdiction is required which is required for nuns and Sisters.

A local restriction is sometimes made in this way, that jurisdiction is conceded for hearing confessions in a certain church or in a few certain defined churches, so that the circumstance of place is to be held as a predefined condition for having jurisdiction. But it would be foreign to juridic reasons to require the circumstance of place for the value of a confession received by a priest to whom jurisdiction over persons is simply granted. Finally, the most frequent limitation is temporal, by which jurisdiction is conceded for a year or several years.

— Of itself, jurisdiction or license of hearing confessions is to be conceded only to those "who shall have been found suitable through an examination," unless it concerns a priest whose theological doctrine local Ordinaries and religious Superiors "have otherwise ascertained." And after jurisdiction or license has been conceded, if they "prudently doubt whether a priest previously approved by them still continues to be suitable, let them subject him to a new test of doctrine, even if it concerns a pastor or canon penitentiary" (c. 877).

Again, however, by canon 871 local Ordinaries are warned not habitually to concede jurisdiction to religious whom their proper Superior has not presented; but, to those presented, with the proof of examination remaining safe, not to deny the same without a grave cause.

Observe that the same prudence is prescribed by the canon to the local Ordinary who confers jurisdiction and to the religious Superior, even when he merely consents to the use of conceded jurisdiction. And that the examination which the bishop imposes upon regulars themselves who wish to hear the confessions of seculars must be undergone by them is now in no way doubted. But by cc. 877 and 878, too, controversies are cut away concerning the right which regulars would have had so that, having been found suitable, they might be approved absolutely and could not be recalled to an examination. For from c. 878 the bishop remains free to circumscribe the faculty of receiving confessions by time.

When this space has elapsed, the bishop will be permitted, in order to concede a new faculty, to impose the reasonable condition of examination. But if he shall have given a perpetual faculty absolutely, a positive suspicion of incompetence will indeed be necessary so that he may licitly require a new examination; nevertheless he always acts validly, since, from c. 880, he can always efficaciously remove the jurisdiction itself, with recourse in devolutive effect to the Holy See remaining safe.

— For the very value of confessions it is necessary that jurisdiction be expressed in writing or in words. The concession, moreover, must be gratuitous (c. 879).

And so a tacit concession is not sufficient, which easily labors under ambiguity, and much less a presumed one concerning the future, since this is not true, but only would be true if it were sought. Nevertheless an intimation of the concession is not required. Wherefore, in an urgent case, jurisdiction can, as they say, be presumed concerning the present; that is, one who is morally certain concerning the petition received by the bishop by which he asks for jurisdiction, and concerning an affirmative response given either to his procurator or by letters, can, in urgent matters, even before the letters are received or before the return of the mandatary, receive confessions. And the mandatary can through a telegraphic message make the petitioner certain that the prayers have been heard. Nor is an explicit formula required, but a formula suffices which explicitly, for example by referring to appointment or mission, signifies from law or usage the concession of jurisdiction joined with appointment or mission.

— I. In the minister there is required the power of order together with jurisdiction, since at the same time he administers a sacrament and pronounces a judicial sentence.

Jurisdiction can be ordinary or delegated.

Ordinary jurisdiction can be exercised everywhere over subjects; nevertheless it can be delegated only by those whom cc. 874 and 875 indicate as delegators.

Delegated jurisdiction must proceed from the Ordinary of the place where confessions are heard, unless the penitents can be absolved by force of jurisdiction communicated by a religious Superior as such.

By both ordinary and delegated jurisdiction, vagi, travelers, and Catholics of the Oriental rite can be absolved.

II. Ordinary jurisdiction ceases for all by loss of office; and besides, but after a condemnatory or declaratory sentence, by excommunication, suspension from office, and interdict.

Delegated jurisdiction ceases when the mandate has been completed, when the time has elapsed, when the number of cases for which it was conceded has been exhausted; when the final cause of delegation ceases; by revocation directly intimated to the delegate; by accepted renunciation; when the right of the delegator is resolved, if this appears from the clauses, or the power is only of hearing persons expressed in the rescript or indult, and the matter is still intact. Thus, by the death of the delegator, jurisdiction conceded through the words "at our good pleasure" ceases, but not if it is said "until revocation."

Validly, from c. 207, §2, he absolves who, after the time has elapsed or the number of cases has been exhausted, inadvertently uses jurisdiction.

III. Revocation or suspension of delegated jurisdiction, made by the Ordinary, is valid; but it demands a grave cause in order to be licit; nor, without consulting the Holy See, is it lawful for a bishop to deprive all the confessors of a formed religious house of jurisdiction.

The Ordinary can also prohibit the office of confessor to the penitentiary and to the pastor, with recourse in devolutive effect to the Holy See remaining safe.

IV. For a reasonable cause, jurisdiction or the license of hearing confessions can be circumscribed by certain limits: of persons, of time, of place. The most usual restriction is made by reservation of cases.

V. Jurisdiction and the license of hearing confessions is regularly to be conceded only to those who have been found suitable through an examination; and they can be recalled to a new test of doctrine. It is recommended to Ordinaries that, in approving religious, they conduct themselves according to the reasonable will of Superiors.

VI. Jurisdiction is not validly conceded unless expressed in writing or in words; an implicit expression nevertheless can suffice.

The concession must be gratuitous.