Chapter II: Who Have Ordinary Sacramental Jurisdiction or Can Delegate It

— Those have ordinary power of hearing confessions:

1. for the universal Church: a) the Roman Pontiff; b) Cardinals of the Holy Roman Church. Their jurisdiction extends to all persons, even nuns, and to all cases, "except only censures reserved in a most special manner to the Holy See, and those which are annexed to the revelation of the secret of the Holy Office" (cc. 873, 239, §1, 1°);

2. each for his own territory, the local Ordinary, the pastor, and those who are in the place of the pastor; for the same territory of the Ordinary, the canon penitentiary of the church, whether cathedral or collegiate, with the power "of absolving also from sins and from censures reserved to the bishop, strangers also in the diocese, and diocesan persons also outside the territory of the diocese" (cc. 873, 401, §1).

Concerning individual persons or cases a few things are to be observed:

a) by the name of local Ordinary are understood, besides the Roman Pontiff, each for his own territory, the residential bishop, abbot or prelate nullius and their vicar general, administrator, vicar and prefect Apostolic, and those who, when the aforesaid are lacking, succeed in the meantime in governance, according to the prescription of law or from approved constitutions (c. 198. Cf. above n. 70-74, 81-85);

b) usage has it that a pastor, unless the contrary is expressly established, is considered competent for the whole diocese, so that he enjoys ordinary jurisdiction over parishioners, but delegated jurisdiction over all the faithful confessing in the diocese. This delegation is from the law, by force of c. 881, as regards those who confess in the parish; it proceeds from the local Ordinary as regards penitents who confess outside the parish. And so the appointment itself of a pastor signifies at the same time diocesan delegation. If you ask how this concession is sufficiently express, as c. 879 requires, we answer that by words or writings is expressed whatever, from usage, they are judged to signify. To pastors (cf. n. 77) are equated quasi-pastors (n. 86), parochial vicars (n. 78) if they are endowed with full parochial power.

In the place of the pastor are the vicar oeconomus who governs a vacant parish, the cooperating vicar who assumes the governance of the parish before the appointment of the oeconomus (cc. 471-473); the vicar adjutor given to a pastor unequal to his duties, if he supplies the place of the pastor in all things (c. 475); the vicar legitimately substituted for an absent pastor (cc. 465, 474);

c) power over things reserved to the bishop, when it is conferred without distinction, embraces both the cases which the law reserves and the cases which the bishop reserves to himself;

3. for their own subjects, exempt religious Superiors, according to the norm of the constitutions (c. 873).

— Those delegate, if we attend to the words of the Code:

1. for hearing the confessions of any persons whatever, whether seculars or religious, priests both secular and religious, even exempt: the Ordinary of the place in which the confessions are received (c. 874, §1).

And so it is now established, what we were already writing (Per., VII, p. 27-28), that even exempt religious, when they confess before a secular priest, are absolved by diocesan jurisdiction, which therefore is affected by diocesan reservations, unless the confessor at the same time has obtained regular jurisdiction from the exempt Superior. It is also established that travelers are absolved by the jurisdiction of the Ordinary of the place where confessions are received, so that the jurisdiction of the one absolving is subject to the cases reserved in the place of confession. This is now confirmed by the response of the Pontifical Commission, November 24, 1920, De reservationibus, A.A.S., XII (1920), 575. The Ordinary also can grant the faculty of subdelegating.

Observe that by him who has ordinary and delegable power, the faculty of granting jurisdiction for confessions can also be delegated to any cleric. And he can also permit, to a person not capable of ecclesiastical jurisdiction, for example a religious Superiorissa, in a general or particular way, the designation of priests whom the Ordinary himself, with that condition posited, intends to delegate for confessions. Thus he could establish: Whatever priests you admit for saying Mass in your chapel, I render fit for hearing confessions there.

2. For hearing the confessions of the professed, of novices, and of those who dwell day and night in a religious house for the sake of service, education, hospitality, or infirm health: the proper Superior of an exempt clerical religion, according to the norm of the constitutions, delegates subject priests and also priests from the secular clergy or from another religion (cc. 875, 514, §1).

And so beyond doubt is placed the power of an exempt Superior validly to grant jurisdiction, for hearing his own, to any priest, whether secular or religious, even those whom his proper Ordinary has not approved.

3. For hearing any religious women and novices, the local Ordinary where the house of the religious women is situated confers peculiar jurisdiction. Grave sickness, or accidental approach to a confessor approved for women, being excepted, concerning which cases cf. the things to be said below, this peculiar jurisdiction is necessary for validity for all, even pastors, if you except Cardinals (c. 876, §1).

The words of c. 876, §1, "for receiving the confessions of religious women validly and licitly," of themselves allow room for doubt whether that peculiar faculty is required for validity itself or only for liceity. For the canon can be explained literally thus: in order that confessions be received at the same time validly and licitly, a special faculty is necessary. For this proposition to be true, it is enough that without such a faculty the confessions remain illicit. Nevertheless, that the faculty is required for validity is established both from the sufficiently manifest mind of the legislator, who wished by a universal disposition to sanction the already quite universal usage of requiring peculiar approval for the very value of absolution, and from the words themselves of the canon, which require peculiar jurisdiction. For jurisdiction, from c. 872, is necessary for the value of absolution.

— 4. By delegation of common law, any priests absolve any penitents whatever in danger of death from any sins or censures whatever validly and licitly, even if an approved priest is present. Nevertheless the absolution of an accomplice, outside the case of necessity, remains illicit even then on the part of the confessor. The burden of recurring, which is imposed upon a convalescent penitent absolved from certain censures, is explained below, n. 473.

— The same common law, by its delegation, also extends the jurisdiction of priests who undertake a maritime journey. For those delegated either by their proper Ordinary, or by the Ordinary of the port in which they board the ship, or by the Ordinary of an intermediate port through which they pass on the journey, can during the whole journey receive in the ship the confessions of any of the faithful whatever sailing with them (c. 883, §1).

Whenever the ship stops on the journey, they can receive the confessions both of the faithful who approach the ship for any reason, and of those who, when they themselves call briefly at land, ask to confess, and they can validly and licitly absolve them even from cases reserved to the local Ordinary (c. 883, §2).

By this canon, in almost the same words as in the decrees of the Holy Office, August 23-24, 1905, and December 12-13, 1905, a faculty of superior law is confirmed and extended, while nevertheless the ambiguity of certain words has been dispelled. For in the decree of the Holy Office, August 23-24, the approval to be obtained was said to be "from the proper Ordinary from whose diocese they depart." That condition of departure, which labored under obscurity and made difficulty, has now happily been omitted. Moreover, the limitation which in the decree of 1906 was rendered in these words has been suppressed: "Provided that there be no approved priest in the place, or only one, and the local Ordinary cannot easily be approached."

Because the question concerns an Ordinary who must give jurisdiction for hearing any persons whatever, the proper Ordinary must be understood as the local Ordinary (so also Ferreres, Comp. theol. mor., II, 654), who for a religious is the Ordinary of the place of the convent to which the religious belongs. Besides, in the decree of the Holy Office, August 23-24, 1905, by the name of proper Ordinary, the local Ordinary was manifestly designated, since there was added "from the proper Ordinary from whose diocese they depart." Since the later words were ambiguous, they have been removed, but the words which remained have not changed their signification.

Jurisdiction is not conceded except on the journey: therefore neither in the port from which the ship departs, nor in the port where the journey has its end. These notions must be taken relatively, with respect to the priest absolving. The Neapolitan port will be intermediate for a priest who boards the ship at Marseilles; for a Neapolitan it will be the port from which the ship departs.

On the high sea, since the ship is then outside every diocese, no diocesan reservation touches it.

— By its delegation, common law also supplies jurisdiction in common error or in a positive and probable doubt, whether of law or of fact (c. 209).

1. On Common Error. Common error is the error of many, whether they are many absolutely, say 200, or are many relatively to the number of the faithful who compose the parish or community. And since already, Reiffenstuel being witness, L. V, t. 1, n. 249, and Ball.-Palm., Opus theol., VII, n. 150, ten persons can make a people, we, receding from the stricter opinion which we proposed in Epitome iuris, II, n. 154, now judge the common error of a religious house which consists of ten persons sufficient. But common error is not the error of one or another, but the error of those who, with attention to the extent and nature of the people, can by a moral judgment be called many. Many, however, at least in an extensive community, can be constituted even by a smaller part (cf. R. P. Jombart, S.J., L'erreur commune, Nouv. Rev. Theol., April 1923, p. 172). Nor is it required that the many erring wish to use that estimated jurisdiction, for example that many approach for confession; but it is enough that in the place where the confessor receives confessions he is commonly thought to have jurisdiction, as if he habitually occupies a confessional of a public church.

Since error means a judgment of the mind, is it necessary that it truly be commonly thought that jurisdiction belongs to such a priest? With Jombart, l.c., p. 173, and Cappello, De Matrimonio, n. 665, we think it enough that the foundation of the error be public or known to many, that is, that the elements of an erroneous judgment concerning the jurisdiction of such a priest be in the minds of many. For then they can already be said to err. But, in our opinion, it is not enough that a few err because of a cause which would deceive others also. For then no common error is present; but such an error would be present if, an announcement having been given concerning the approaching arrival of a missionary to preach a mission, both a true missionary who begins the mission without jurisdiction, and a priest who, arriving, is falsely thought to be the announced missionary, can, on account of common error, validly receive confessions. But the fact that an unknown and not commonly expected priest is asked by a member of the faithful to hear a confession, and actually hears it, even in the confessional of a church, does not for that reason mean that jurisdiction will be supplied by the Church, since no error is formally or fundamentally common.

Because, however, the Church then supplies jurisdiction for the common utility, we think this must be added: that the error ought to be such as could of itself harm many. Wherefore, unless it concerns an action which directly affects the community itself, it is necessary that the error be concerning habitual power or jurisdiction. For if it is terminated by one act toward a private person, it is not of itself the concern of many. We shall see the application of this rule in the treatise on Matrimony.

In the confessor no good faith is required.

But what if someone does not share the common error? Schmalzgrueber, De iudiciis, denies this case of common error, since then he is badly disposed. If, nevertheless, the error is truly common, accidental knowledge will not stand in the way of the value of jurisdiction, since the canon does not limit its benefit to those erring, and it can be very troublesome to be deprived, on account of knowledge, of an occasion perhaps rare, indeed unique, for making confession. (Against this, however, Ferreres, II, n. 651).

Finally, the question concerning common error can give place to a doubt of law or of fact. To these doubts, if they are positive and probable, c. 209 itself, in its other disposition, can be applied.

Let us recall from tome I, n. 840, 852, that doubt is had when the mind suspends assent between two or more opinions (doubt strictly so called), or when it makes only an opinative judgment, with serious fear of the opposite (doubt broadly so called). The doubt is of law if its object is the meaning or even the existence of a law; of fact, when the fact itself to which the law is known to be applicable is uncertain. A doubt concerning jurisdiction will be positive if there is a reason for affirming jurisdiction; and it is furthermore probable if the reasons for affirming are grave or of some moment. A positive and probable doubt of law will be had if grave authors affirm that jurisdiction is had in such a case, or, for example, that the conditions of c. 522 have been fulfilled, although other grave authors contradict them. A probable doubt of fact will be present, for example, if, not having occasion to read the diploma conceded to me, and doubting about its extension, from the usage of the curia I opine that it was conceded to such a day. But a doubt of fact will have been negative if I doubt whether my jurisdiction ceases on the 5th day or the 15th day of the month, and I can bring forward no reason for either part.

And so, every necessity of a title or cause which might seem to grant jurisdiction to me being set aside, if, in fact, they commonly think me furnished with it, or if my jurisdiction is probable (by fact or by law), I validly place an act of jurisdiction, that is, in the case, I validly confer absolution. Yet this difference exists between the two cases: in common error, the Church merely provides for the spiritual utility of the faithful, lest they be deceived; while in a positive and probable doubt of my jurisdiction, the Church wishes to render me secure, so that also in my favor, as a precaution, it supplies jurisdiction.

In negative doubt, since the Church supplies nothing, the validity of the act depends on the truth alone of the matter which is unknown.

Observe finally that the benefit of c. 209 is not proper to sacramental jurisdiction, but common to every use of jurisdiction, for example for dispensing; and indeed of jurisdiction accepted broadly, for example that which is necessary for assisting at marriages.

— By disposition of common law, it is lawful for Cardinals and bishops, even titular, to choose for themselves and their household a priest who thence, by jurisdiction delegated by common law, obtains jurisdiction over those persons, which he can exercise everywhere (cf. 239, §1, 2°, and 349, §1, 1°).

Moreover, by household members here are understood those who pertain to the family or house of the Cardinal or bishop, especially by reason of service, as secretary, servants.

The Supreme Pontiff himself confers upon his confessor jurisdiction for absolving himself.

— No other person delegates sacramental jurisdiction: not a Cardinal, as such; the open mind of the legislator prevents us from extending to the conferring of jurisdiction the very ample ordinary power which he received for hearing confessions. The legislator cannot be judged to have made for them the incredible power of delegating throughout the whole world any priests whatever for absolving any persons whatever even from cases especially reserved to the Holy See; and the privilege of choosing a confessor for themselves would be useless for them if they could render all priests suitable for receiving confessions. Nor the canon penitentiary, from whom the faculty of delegating is formally excluded by c. 401; nor the pastor, concerning whose power of delegating the Code indeed was silent, yet in such a way that from the canons compared we gathered certain arguments for denying this power. But now, from the response of the Pontifical Commission, October 16, 1919, ad 3, it is authentically established that pastors or their vicars, or others delegated for the universality of causes, can neither delegate jurisdiction for receiving confessions, nor extend for approved priests jurisdiction beyond the limits of place or persons within which it had been circumscribed according to the norm of c. 877 §1, but that they need for this a special faculty or mandate of the local Ordinary (A.A.S., XI, p. 472).

Wherefore not even to another pastor can a pastor concede jurisdiction for hearing confessions.

— I. Those have ordinary power:

1. for the universal Church, besides the unlimited faculty of the Supreme Pontiff, Cardinals of the Holy Roman Church, for all persons, even nuns, and for all cases, except those reserved in a most special manner to the Holy See and those which are annexed to the revelation of the secret of the Holy Office;

2. each for his own territory, the local Ordinary, the pastor, and those who are in the place of the pastor; for the same territory of the Ordinary, the canon penitentiary, with power of absolving from sins and censures reserved to the bishop. And, with attention to custom, pastors are considered competent for the whole diocese, unless the contrary is expressly established;

3. for their own subjects, Superiors of exempt religion, according to the norm of the Constitutions.

II. 1. Common law delegates:

a) any priests whatever for absolving any penitents whatever in danger of death from any sins or censures whatever, even with an approved priest present, with the necessity remaining of recurring to the Superior or privileged confessor, imposed upon the convalescent, for censures reserved in a most special manner or reserved by man, and with the prohibition also remaining of absolving an accomplice outside necessity;

b) priests approved either by their proper (local) Ordinary, or by the Ordinary of the port in which they board the ship, or by the Ordinary of the intermediate port, for absolving, through the whole maritime journey, any of the faithful whatever on the ship itself, indeed also those who ask to confess when they themselves briefly call at land: these also they can absolve from cases reserved to the local Ordinary;

c) priests for whom jurisdiction must actually be supplied, either on account of common error, or on account of a positive and probable doubt of law or fact concerning their jurisdiction;

d) a priest chosen for himself and his household by a Cardinal or bishop, even titular.

2. The Ordinary of the place of confession delegates, for hearing the confessions of any persons whatever, whether seculars or religious, priests both secular and religious, even exempt.

The same confers the peculiar jurisdiction which, for hearing religious women and novices, is of itself necessary even for pastors and canons penitentiary.

3. The proper Superior of an exempt clerical religion delegates subject priests and also seculars or priests of another religion, for hearing the confessions of the professed, of novices, and of those who dwell day and night in a religious house, for the sake of service, education, hospitality, or infirm health.

No one else, neither a Cardinal, nor a canon penitentiary, nor a pastor, can delegate sacramental jurisdiction.