Chapter III: On Reservation of Cases

— Reservation of a case is its calling away to the judgment of an ordinary Superior, by which at the same time the power of inferiors is limited (c. 893, §1 and 2).

By this genuine definition, the notion of reservation is restored; it is not, at least principally, a penalty, but directly says a restriction of jurisdiction, so that it directly affects the confessor, not the penitent.

Wherefore, concerning the subject of reservation, the Pontifical Commission on the Code, November 24, 1920, De reservationibus, prudently responded that travelers are bound by the reservations of the place in which they are staying (A.A.S., XII, p. 575). For, from c. 881, §1, they are absolved by the jurisdiction of the diocese of the place where they confess. But the absolving confessor possesses this jurisdiction restricted by reservation. In what way, therefore, could he use jurisdiction toward travelers beyond the limits within which he has it?

The reason which we have just added, however, excepts the case in which a traveler, in a foreign diocese, confesses before his own Ordinary or pastor, whose jurisdiction is not affected by the reservation of the foreign diocese. Nor in that case will the pastor have to attend to the reservations of his own diocese, since reservation does not exceed the limits of its own territory.

— The power of reserving cases belongs to all those who by ordinary right can grant the faculty of hearing confessions or inflict censures. Nevertheless, the power is denied to the capitular vicar; while the vicar general needs a special mandate (c. 893).

Indeed, by canon 896, in exempt clerical religions it is expressly assigned to the Superior General alone. Yet we think this is said with respect to the other Superiors, since the canon begins with these words: "Among Superiors." And so we judge that the power of a chapter or general congregation, in which the supreme jurisdiction of the Order exists, remains untouched.

— On Ignorance of Reservation. It is customary to ask whether ignorance excuses the penitent from reservation or not. With attention to the genuine notion of reservation, which subjects graver causes to a more mature judgment, so that it limits the jurisdiction of the inferior and is not numbered among canonical penalties, it seems that a certainly negative response must be given. This is confirmed not a little by the declaration just alleged concerning travelers. For these generally are ignorant of the reservations proper to a foreign diocese, nor are they bound by its penalties; and nevertheless it has been denied, without any distinction, that the simple confessor of the place where he confesses can of himself absolve them from reserved cases. Yet we do not yet dare to reject the extrinsic probability of the more benign opinion. For this, supplied with its reasons, cf. in the study of R. P. Fuster, S.J., Los reservados episcopales segun el nuevo Codigo, in Razon y Fe, t. 52 (1918), p. 510 sqq.; t. 53 (1919), pp. 103, 216, 510 sqq. Nevertheless, nothing prevents the one reserving from reserving only sins which were committed with knowledge of the reservation. The Ordinary will be able to signify this mind either expressly, by a declaration added to the reservation, or tacitly, for example if an excuse on account of ignorance is taught in his seminary. Therefore we shall never say, "ignorance excuses from reservation"; but rather we shall admit that knowledge of reservation is sometimes to be counted among the conditions of a reserved case.

— Sins and censures can be reserved. Both are called by the common name of reserved cases, so that power given over reserved things or over reserved cases, of itself, embraces both powers over reserved sins and reserved censures. But when a sin is at the same time punished by a censure, reservation can affect either the sin alone or the censure alone or both. But if the censure itself impedes the legitimate use of the sacraments, absolution from the censure must formally be placed before absolution from sins. Wherefore if then the reservation affects the censure alone, the sin is nevertheless called reserved by reason of the censure. But in the chapter on Penance, the Code treats almost only of reserved sins. We think we shall consult the utility of students if we immediately join the connected matter concerning reserved censures, so that first concerning reserved sins, then concerning reserved censures, we may propose the disciplinary rules summarily.

— Those Reserving. 1. The single sin reserved to the Holy See by reason of itself is false accusation, by which an innocent priest is accused of the crime of solicitation before ecclesiastical judges (c. 894).

Nevertheless, c. 2363 punishes a false denunciation of this crime, made to Superiors, with a censure specially reserved to the Holy See. How these things are composed, we shall say below.

— 2. The Ordinary of places is warned not to reserve sins unless, either from discussion made in synod, or after the cathedral chapter and some selected parish priests have been heard, the true necessity or utility of the reservation has been proved (c. 895).

3. Among religious Superiors, only the Superior General of an exempt religion, or the abbot of a monastery sui iuris, each with his own Council, can reserve sins, as above. Yet by this reservation they are forbidden to restrict the power of the ordinary confessors of the religious house; nor can they validly restrict the faculty of a confessor approved by the local Ordinary whom a religious has approached (cf. cc. 896, 518-519).

With his own council, that is, after that Council has been heard; for thus we judge that this clause must be interpreted. This interpretation is confirmed from the immediately preceding parallel place. For the local Ordinary is merely commanded to hear his chapter.

Since c. 896 expressly intends to define which Superiors, with others excluded, can reserve cases, and has declared the competent Superior to be one with his own council, he is to be judged not competent without such council, so that consultation of the Council seems necessary for the very value of the reservation.

— These laws are prescribed for Ordinaries:

1. few cases, three at most or four, from the graver and more atrocious external crimes only, specifically determined, are to be reserved (c. 897);

2. reservation is not to remain in force longer than the extirpation of some inveterate vice or the restoration of collapsed discipline demands (c. 897);

3. Ordinaries are entirely to abstain from reserving to themselves sins "which are already reserved to the Apostolic See, even by reason of censure; and regularly from those also upon which a censure, even one reserved to no one, has been imposed by the law" (c. 898).

The first condition, while it requires specific determination, demands that a genus, for example concubinage, not be reserved for attaining the species, but wishes that the case be circumscribed by those notes or circumstances which demand reservation: for example let adulterous concubinage be reserved, if on account of that circumstance it is to be reserved.

Today, indeed, not in every region can it be hoped that a vice can be extirpated by reservation. But if it impedes the propagation of the vice, we judge that this is already enough for the reservation to have the utility which is required according to the wishes of the Holy See.

Canon 898 prohibits Ordinaries from reserving sins even as such (or independently of censure) to which a censure reserved to the Holy See is annexed, even if the sin is reserved to the Holy See only by reason of the censure. For example, from c. 2351, duel is punished by a censure simply reserved to the Holy See. On account of ignorance not to be blamed, the guilty person could have escaped the censure, so that the sin is now not reserved to the Holy See. The Ordinary is prohibited from reserving the sin to himself even for such a hypothesis. Since, however, no invalidating clause is added, the reservation would be valid.

— Cessation. Any reservation lacks force, from c. 900:

1. when the sick who cannot leave the house confess, or betrothed persons for the sake of entering marriage;

2. whenever either the legitimate Superior has denied the faculty of absolving sought for some determined case, or, in the prudent judgment of the confessor, the faculty cannot be sought from the legitimate Superior without grave inconvenience of the penitent or without danger of violation of the sacramental seal;

3. outside the territory of the one reserving, even if the penitent has departed from it only to obtain absolution.

And matters stand equally whether there the confessor of the place or the pastor of the penitent gives absolution.

These rules, proper to sins which are reserved by reason of themselves, are laid down in such a way that a statute either of a bishop or of a religious Superior contrary to them would be destitute of value.

On account of the word "any," they also fall, as it seems to us, upon the single sin reserved to the Holy See by reason of itself. But in absolution, the conditions required by the very nature of things according to the mind of c. 2363 will have to be observed.

On account of the benign mind of the legislator, we judge that by the sick can be understood all those who by bodily infirmity, for example a broken foot, are detained at home; not, however, any persons whatever who are shut in the house, for example a prison, even for another reason, such as on account of guilt.

And the exception profits also those, for example religious, who are in a house where confessors dwell.

Betrothed persons, however, are whoever confess in order to a proximate marriage; that is, all those about to marry, although they have made no formal espousals.

A grave inconvenience of the penitent is, for example, a grave difficulty of returning to the confessor, the necessity of celebrating, difficulty of abstaining from Communion without some mark or suspicion; indeed, if we are not mistaken, the notable detriment itself of the soul which he would suffer on account of less good will, if it is to be feared that he may depart indisposed.

The danger of violating the seal will be present if, on account of the circumstances, it is to be feared that the Superior may come into suspicion of the person for whom the faculty is sought. But under this name does not come the danger that the penitent himself, by approaching a privileged confessor, may expose himself to that suspicion: for the penitent cannot violate the seal by his own deed. But such danger will have to be numbered among grave inconveniences.

Since, moreover, the faculty denied by the Superior, sought in a determined case, is conceded by the law itself, the force of reservation is reduced finally to this: that a penitent who has committed something reserved is compelled to approach a simple confessor twice; and thus he is advised to seek more mature confessors whom he can deservedly presume to be furnished with faculties. Moreover, promulgation of the reservation opportunely warns subjects concerning the gravity of the guilt, concerning its opposition to the reason of their state. Cf. Nouv. Rev. theol., De l'utilite des reserves dans les Ordres religieux (Besson), 1921, p. 24.

Since the reservation itself ceases, the absolution given is beyond doubt direct.

— The Efficacy of Reservation. 1. Ordinaries of places must take care that they bring their reservations to the knowledge of subjects; nor should they impart to anyone whatever and indiscriminately the faculty of absolving from reserved cases (c. 899, §1).

2. Nevertheless the law itself grants the faculty to the canon penitentiary; and it wishes that it be imparted habitually at least to vicars forane or deans, with the faculty of subdelegating added, especially in places more remote from the episcopal see, as often as confessors of their district recur to them if and when, for some more urgent case, they do so (c. 899, §1).

3. Besides, by the law itself, from cases which Ordinaries have in any way reserved to themselves, pastors, or others who in law come under the name of pastors, can absolve during the whole time useful for the paschal precept; individual missionaries, while missions are being held for the people (c. 899, §3).

By this canon, while it commands the publication of reservations and warns that reserved cases not be communicated to anyone whatever and indiscriminately, the legislator intends to provide for the efficacy of reservation. Yet from this let us not think that it is consonant with his mind that the faculty over reserved cases be delegated to no one or to only a few. He expressly wishes that the cases be few; but nowhere does he say: "Few should be able to absolve from them." Indeed he himself indicates several to whom he wishes an habitual faculty, with the power of subdelegating, habitually to belong. But when he cautions "lest it be given to anyone whatever and indiscriminately," he intends this one thing: that the faculty be committed to selected confessors, both secular and religious, a faculty which, according to the mind of the legislator himself, seems rather to be granted than denied.

From canon 451, under the name of pastors come quasi-pastors who govern quasi-parishes into which a Vicariate or Apostolic Prefecture has been divided (c. 216, 2, 3), and parochial vicars, if they are endowed with full parochial power (cf. n. 455).

Moreover, the time useful for fulfilling the paschal precept is that which is established either by common law or by the statute of Ordinaries using the power made for them; finally also, if we are not mistaken, that which has legitimately been extended for someone. Nor is it required that the confession be made for fulfilling the paschal precept. But the time itself is privileged, in which even those who have already satisfied the paschal precept can obtain from pastors absolution of cases which the Ordinary had reserved to himself.

Because the law is favorable, missions can be understood also as spiritual exercises, provided they are given to some people, that is, under a collective aspect. For the law does not require missions made in a church. And for the same end of conversion and spiritual renewal, both missions and spiritual exercises are given, except that in the latter a more active cooperation of the people or recipients is supposed.

— Various Notions. Censures (for example excommunications) are some reserved, others not reserved.

1. A censure ab homine is always and everywhere reserved to him who inflicted the censure or issued the sentence, or to his competent Superior or successor or delegate (cc. 2245, 2247).

Among censures a iure, some are reserved to the Ordinary, others to the Holy See simply, in a special manner, or in a most special manner (c. 2245).

2. The reservation of a latae sententiae censure does not bind in a doubt whether of law or of fact (c. 2245), nor outside the territory of the one reserving, "even if the censured person departs from the territory to obtain absolution" (c. 2247).

Since departure in fraud of the law now certainly does not harm, travelers everywhere can be absolved from the censures of their own diocese by any confessor. But they are not subject to the censures of other dioceses, unless they are added to a particular law which consults public order, or to a general law. But a general law will scarcely have to be fortified by a censure by the bishop, since the common law has sufficiently provided for this. (Cf. cc. 2226, 898).

Vagi, however, in a diocese are subject to the censures of the territory where they are actually staying.

3. "Reservation of a censure impeding the reception of the sacraments (that is, of excommunication and personal interdict) imports reservation of the sin to which the censure is annexed; but if anyone is excused from the censure or has been absolved from it, the reservation of the sin entirely ceases."

4. "If a censure is reserved to the Apostolic See, the Ordinary cannot validly impose another censure reserved to himself upon the same delict" (c. 2247, §1).

5. Absolution given by a confessor ignorant of the reservation is valid, unless it was a censure ab homine or reserved to the Holy See in a most special manner (c. 2247, §3).

And because the fault of the confessor cannot harm the penitent, matters stand equally whether the confessor labors under culpable or excusable ignorance.

But what if the penitent, conscious of the contracted censure, deliberately approaches a confessor whom he knows to be ignorant?

If this penitent is otherwise well disposed and has perceived the probity of the ignorant confessor, he will validly be absolved from censures, since the conditions of the canon are perfectly fulfilled.

We require probity, lest the penitent have to fear that absolution has been given out of malice, so that he cannot be secure.

6. If a general absolution is conceded to a penitent bound by several censures, this also has value for those withheld in good faith, but not for a censure reserved to the Holy See in a most special manner; a particular absolution has no value except for the cases expressed (c. 2249).

— Absolution. 1. Any confessor can impart absolution from censures reserved in any way whatever in the sacramental forum:

1° if the penitent is constituted in danger of death;

2° in more urgent cases: namely, if for the time necessary for the competent Superior to provide:

a) latae sententiae censures cannot be observed without danger of grave infamy or scandal; or

b) it is hard for the penitent to remain in the state of sin.

Here, therefore, the question concerns one excommunicated or personally interdicted; otherwise, one rightly disposed can be absolved from sin, the censure, for example of suspension, remaining firm.

2. In a more urgent case, the burden remains for the penitent of recurring within a month "at least by letter and through the confessor," under penalty of reincidence, to the competent Superior and of standing by his mandates, provided that this can be done without grave inconvenience, and the name having been withheld (c. 2254).

In danger of death, the obligation of recourse binds only for censures ab homine or by law reserved to the Holy See in a most special manner (no longer specially, as formerly): it is to be made after the penitent has recovered, that is, within a month after, the danger having been removed, he has sufficiently recovered strength so that he can easily complete the matter himself.

Danger of death can be understood as probable; grave inconvenience will be present if neither the confessor (for example because he must depart before a response is received and while absent the response cannot safely be communicated) nor perhaps the penitent himself, unskilled, can send a letter, and it is hard for the penitent to approach another confessor (cf. response of the Holy Office, November 9, 1898).

And because the burden of repeating confession before another is supposed to be grave, the confessor, after showing the great utility of liberation from the state of sin, can bring it about that it is hard for the penitent to remain in the state of sin even for a day, so that in practice almost always, under the burden of recourse, he can absolve from reserved censures.

3. The competent Superior in censures imposed a iure is the Sacred Penitentiary or a bishop or Superior endowed with due faculty (cc. 2252, 2254, §1, 2).

If recourse to the Holy See is impossible, recourse must be had within a month to the Legate of the Roman Pontiff, to the bishop or Superior (not confessor) endowed with due faculty. For they are expressly named; and so the opinion is excluded which would terminate the obligation of recourse at the reserving Superior alone. Moreover, we are warned with the same clarity that recourse also to the bishop is to be made by letter, nor is the opinion of those now to be admitted who thought that the use of a letter, as an extraordinary means, was to be employed only in recourse to the Holy See.

By delegable power, the Legate of the Roman Pontiff (that is, the Nuncio or Apostolic Delegate) can also in the external forum absolve from all censures a iure reserved either simply or specially to the Roman Pontiff.

But the bishop, by ordinary and delegable power, can absolve from censures in occult cases which are not reserved to the Apostolic See in a most special or special manner.

4. No one is obliged to approach a privileged confessor, but it is always lawful for all, even after recourse before the Superior has been introduced. In this case, the accusation of the delict at least being repeated, one must stand by the mandates of the confessor alone (cc. 2252, 2254, §1, 2).

This repeated confession of the delict is necessary so that the confessor may impose suitable mandates. For we think that the absolution of the sin is direct in every urgent case, since power over the reserved censure is conceded by the law itself.

— "But if in some extraordinary case this recourse is morally impossible, then the confessor himself... can concede absolution, without the burden of which above, nevertheless imposing the things to be imposed by law and imposing a suitable penance and satisfaction for the censure, so that unless the penitent, within a suitable time to be set by the confessor, has done penance and given satisfaction, he falls back into the censure" (c. 2254, §3). The case of absolution of an accomplice is excepted.

Here the question concerns a case in which recourse immediately appears or is prudently foreseen to be impossible. For if after absolution it becomes impossible, during the impediment, but not beyond it, the penitent or confessor will be immune from that burden. Recourse is morally impeded, for example if from it there arises a probable danger of violation of the seal or great detriment to reputation. As we have already said, the recourse of which the canon speaks is to the competent Superior, not to a privileged confessor. From the favor here conceded the priest (penitent) excommunicated on account of absolution of an accomplice is expressly excluded; but one suspended on account of solicitation to shameful things is not excluded. For in the first edition of the Code, c. 2368 is cited by mistake for c. 2367, §1.

— But the absolution which a competent confessor has given from a reserved censure has value even if the confession was null or sacrilegious, provided the penitent accused the reserved matters. If this accusation was omitted in good faith, not a few think that even then the censure was removed, since the confessor is thought to wish to use his power efficaciously as much as he can.

And these things hold also concerning reserved sins.

In a jubilee, however, valid use of jubilee faculties cannot be made in a sacrilegious confession.

— Observe:

1. reincidence into censure, by common law c. 2254, is established only for him who within a month does not recur or does not present himself to the confessor to receive mandates, but not for him who, after he has recurred, does not execute the mandates (unless this penalty is established in the rescript). Although such a person for the most part will be in a bad state;

2. now that the distinctions between those who are impeded for a short or a long time have been suppressed, absolution given in a more urgent case is direct, so that it removes the burden of repeated sacramental accusation. Therefore he who, after worthily received absolution, has omitted the required recourse, will have to accuse only this omission as a sin.

3. If, in some rare case, a simple confessor cannot use can. 900 for absolving a penitent from a sin reserved without censure, Ferreres, II, 679, thinks that it is lawful for him to absolve with the burden of recurring, as if the case were with a reserved censure: there is parity of cause, and in the decree of 1888, whence c. 2253 is taken, absolution even from a reserved case without censure is contained. Yet the matter is little demonstrated by these arguments.

— I. Reservation of a case is its calling away to the judgment of an ordinary Superior, by which at the same time the power of inferiors is limited (cf. c. 893, §1 and 2). Wherefore it principally says not a penalty but a restriction of jurisdiction.

Cases are reserved, of themselves, by all Ordinaries. Yet the capitular Vicar cannot reserve cases, nor, without special mandate, the vicar general. In a clerical religion, among Superiors, only the General or the abbot of a monastery sui iuris, each with his own council, can do this.

Knowledge of reservation can be placed among the conditions of a reserved case; but, standing by principles, ignorance does not excuse from reservation. We would not wish to exclude the extrinsic probability of the more benign opinion.

II. Sins and censures are reserved. Reserved things, or reserved cases, embrace censures and sins. When a sin is punished by a censure, reservation can affect only the sin or only the penalty, or both. Yet if the censure impedes the legitimate use of the sacraments, absolution from the censure must formally be placed before absolution from the sin; wherefore the sin is then called reserved by reason of the censure.

III. Reservation of sins. 1. On those reserving. The single sin reserved to the Holy See by reason of itself is false accusation before ecclesiastical judges of a priest as guilty of solicitation to shameful things in the sacrament of Penance. The local Ordinary is warned not to reserve sins without proved necessity or utility, proved through discussion in synod or after the chapter has been heard together with selected priests.

Alone, among Superiors, the General of an exempt religion or the abbot of a monastery sui iuris, after each has heard his own council, reserves sins. By this reservation they cannot licitly limit the power of the ordinary confessors of the house, nor validly the power of confessors approved by the local Ordinary.

2. On sins to be reserved. Few cases, at most three or four, from the graver external cases, specifically determined, are to be reserved, as long as the extirpation of vice or restoration of discipline demands it.

Ordinaries are entirely to abstain from reserving sins which are already reserved to the Apostolic See, even by reason of censure; and regularly those also upon which a censure, even one reserved to no one, has been imposed by law.

3. Cessation. Any reservation lacks force: a) when the sick who cannot leave the house confess, or betrothed persons, for the sake of entering marriage; b) when the Superior has denied the faculty sought for a definite case; c) when, in the prudent judgment of the confessor, the faculty cannot be sought from the legitimate Superior without grave inconvenience of the penitent, or without danger of the sacramental seal being violated; d) outside the territory of the one reserving.

4. Connected rules. Ordinaries must take care that they bring their reservations to the knowledge of subjects; nor should they impart the habitual faculty to anyone whatever and indiscriminately. Nevertheless it is necessary that it be granted habitually at least to vicars forane, with the power of subdelegating the faculty added as often as a confessor of their district recurs to them for a more urgent case.

Habitual faculty over reserved cases is delegated by law to the canon penitentiary; then, during the whole time useful for the paschal precept, to those who in law come under the name of pastors; and to individual missionaries during missions or spiritual exercises made for the people.

IV. Reservation of censures. 1. Rules concerning reservation. a) A censure ab homine, that is, one which has been brought by a particular precept or by a condemnatory judicial sentence, is always and everywhere reserved to him who inflicted the censure or issued the sentence, or to his competent Superior, or successor or delegate (cc. 2245, 2247). A censure a iure is sometimes reserved to no one; another is reserved to the Ordinary; another to the Holy See, and this simply, in a special manner, or in a most special manner (c. 2245).

b) Reservation of a censure a iure does not bind in a doubt whether of law or of fact, nor outside the territory of the one reserving.

When a sin is reserved by reason of a censure, this censure being excused or absolved, the reservation itself of the sin is removed.

In vain would an Ordinary impose a censure reserved to himself upon a delict which is punished by a censure reserved to the Holy See.

2. Rules concerning absolution. a) Absolution from censure and from sin, given by a confessor ignorant of the reservation, is valid unless it was a censure ab homine, or reserved to the Holy See in a most special manner.

b) Particular absolution has no value except for the cases expressed in it; general absolution has value also for those withheld in good faith; not, however, for those reserved to the Holy See in a most special manner.

c) Any confessor can impart absolution from censures reserved in any manner whatever in the sacramental forum: a) to a penitent in danger of death; b) in more urgent cases, if, during the time necessary for the competent Superior to provide, latae sententiae censures cannot be observed without danger of grave infamy or scandal, or if it is hard for the penitent to remain in the state of sin.

In a more urgent case, there remains for the penitent the burden of recurring within a month "at least by letter and through the confessor," under penalty of reincidence, to the competent Superior, and of standing by his mandates, provided that recourse can be made without grave inconvenience, and the name having been withheld (c. 2254).

If in some extraordinary case that recourse is impossible, the confessor (unless there is question of excommunication on account of absolution of an accomplice) can simply absolve, imposing the things to be imposed by law and imposing a suitable penance and satisfaction for the censure: these will have to be fulfilled within the time to be defined beforehand by the confessor under penalty of reincidence into the censure.

In danger of death, the obligation of recurring binds only for censures ab homine or reserved to the Holy See in a most special manner; and recourse is to be made only after, the danger having been removed, the sick person has sufficiently recovered strength that he can easily complete the matter himself.

d) The competent Superior, to whom recourse must be had at least by letter, for censures imposed a iure, is the Sacred Penitentiary, or a bishop or Superior insofar as he is endowed with faculty. By ordinary and delegable law itself, the bishop can absolve from occult cases which are reserved to the Holy See neither in a most special nor in a special manner.

It is lawful for anyone, even after recourse before the Superior has been introduced, to approach a privileged confessor (the accusation at least of the reserved delict being repeated) and to stand only by his mandates.

Absolution from a reserved censure given by a competent confessor has value even if the confession was null or sacrilegious, provided the penitent accused the reserved matters. (Then the sin indeed will remain, but it will no longer be reserved.) Indeed, if this accusation was omitted in good faith, not a few think that even then the censure has been removed.

Does he fall back into censure who does not execute the mandates of the Superior? On account of the silence of c. 2254 this can be doubted and therefore denied.

Absolution given in a more urgent case is direct.

If there is need, Fr. Ferreres, II, 697, thinks that a sin reserved without censure can be directly absolved with the burden of recurring, as if it had been reserved with censure. This is less approved by us.