Chapter V: The Right Use of Power

— 1. By c. 874, §1, religious priests are prohibited from using jurisdiction received from the local Ordinary without the license, at least presumed, of their Superior.

The degree of fault committed by one who hears confessions against the will of the Superior will be greater or less according to the Superior's opposition and the frequency of the transgression. Of itself, unless a precept of obedience is added, or a prohibition under censure, the matter does not seem grave. But a religious can freely use a faculty which the Holy See has given, unless something else is indicated in the indult itself.

2. "The master of novices and his associate, the Superior of a Seminary or college, are not to hear the sacramental confessions of their pupils dwelling with them in the same house, unless the pupils, from a grave and urgent cause, in particular cases, spontaneously ask this" (c. 891).

Therefore by this canon no jurisdiction is either granted or taken away. But its use is of itself prohibited to the master of novices, his associate, the Superior of a seminary or college, toward their pupils dwelling with them in the same house. Therefore the prohibition does not affect the higher Superior, such as the local Ordinary, who does not dwell in the seminary, nor the immediate Superior during vacations, if the pupils are then not members of the same household. And because a college is spoken of with respect to boarders, the prohibition is not with respect to externs, or those who do not spend the night in the college.

Nevertheless the confession of such a novice or pupil, which always remains valid, will licitly be heard if these concur: spontaneous petition; a grave and urgent cause; a particular case. A grave and urgent cause will be present if the penitent wishes to be heard for quiet of conscience and, because of circumstances whether external, for example imminent Communion or an absent confessor, or personal, does not find another to whom he can easily declare his scruple or sin. And he who spontaneously approaches a confessor is judged to have sufficient cause, so that this canon is to be observed at the same time sincerely and without scruple.

— 3. Religious Superiors who have ordinary or delegated power of hearing confessions can indeed hear the confessions of subjects who spontaneously and of their own motion approach them, "but without grave cause let them not do this by way of habit." And let them beware lest by themselves or through another, by force, fear, importunate persuasions, or any other reason, they induce any subject to confess sins before themselves.

— 4. In danger of death a penitent is licitly absolved by any priest, even of another rite, even by an excommunicate to be avoided whom the penitent has sought ¹ (c. 2261, §3). Nor does the presence of an approved priest stand in the way. Only the absolution of an accomplice remains, on the part of the confessor, illicit outside the case of necessity (cf. below on absolution of an accomplice).

¹ Faulty administration of the sacrament, outside necessity, to those who are bound by censure remains illicit (cf. Noldin, III, 340, and c. 2261, §1 itself). Absolution cannot be sought from a heretic or schismatic using the rite of his sect, on account of forbidden cooperation in false worship.

— 5. The use of probable jurisdiction is simply licit. For the only cause of illicitness would be the danger of nullity, which is wholly removed by c. 209.

The use of negatively doubtful jurisdiction is illicit, unless a very grave cause, or notable detriment to the soul of the penitent (d'Ann., III, 311), demands that he be helped in the better way possible. For since the Church does not supply jurisdiction, the sacrament is exposed to danger of nullity and the penitent to grave harm of itself. Besides, you impose upon the penitent the burden of confessing the sins again to one having certain jurisdiction, at least if afterward it is discovered that jurisdiction was truly lacking. Indeed Busembaum, De iurisd., and Ball.-Palm., V, 395, seem always to require a repeated confession, since the absolution is not probably valid. Wherefore he who absolves in necessity with doubtful jurisdiction must make the penitent more certain of the matter, so that he may at least provide for his own salvation by perfect contrition. But he will have to give absolution under an express or tacit condition: if I have jurisdiction. One thus absolved, if he wishes to use the other sacraments, of himself stands in the condition of one who doubts whether he has committed mortal sins or not.

A sufficient cause of using doubtful jurisdiction is judged to be present if the penitent who has not confessed for a long time either must communicate or celebrate, and does not have the supply of another; or if the precept of annual confession presses; or if the doubt occurs after the confession has already begun, unless perhaps the penitent can break off the confession without too much difficulty.

Observe, however, that there is no obligation for the penitent in these cases to confess to a priest who has only doubtful jurisdiction.

— 6. Although the Church supplies jurisdiction in common error, nevertheless she does not intend to permit a priest to procure jurisdiction for himself in this way, and, for example, relying on common error, omit to ask for a new faculty after the time has elapsed. Wherefore it is not only intrinsically illicit for someone to pretend that he is approved, or to provoke common error, but also of itself he cannot hear confessions who is conscious that jurisdiction is lacking to him, although he is commonly held to be approved.

Does he avoid the suspension, not reserved, a divinis, carried by c. 2366 against the priest who, without necessary jurisdiction, presumes to hear confessions or absolve? Cerato, De censuris n. 118, and Genicot-Salsmans, II, 331, deny this, because he truly usurps jurisdiction. Yet for the more benign opinion it can be said that, since the Church supplies, he does not lack the necessary jurisdiction.

Nevertheless in a grave necessity of the penitent, who would be without absolution for a long time, and in cases where they permit the use of doubtful jurisdiction, it seems also lawful that one who is conscious absolve the penitent in common error.

Indeed there are some today who do not seem to require a grave cause, in order that one may use the benefit of common error. Thus Noldin, III, 346, observes nothing concerning the use of common error; and to a priest who, while he is hearing confessions, remembers that the time of jurisdiction has already elapsed, he simply concedes that he may continue to hear the confessions. Others, on the contrary, have required a grave cause (cf. Lehmk., II, 504-506).

Common utility, such as can occur in public missions, when through a certain error jurisdiction has been sought neither by the missionary nor by the inviting pastor, seems plainly to suffice (cf. Jombart, art. cit.), with the obligation saved of obtaining the necessary faculties immediately.

— The obligation of hearing, by themselves or through others, the confessions of the faithful committed to them, as often as these reasonably ask to be heard, presses pastors and others to whom the care of souls has been entrusted by force of office (c. 892, §1).

Since the pastor is named expressly, several, for example Lehmk., II, 50, and deservedly, as it seems, since this pertains to his office, wish him to be bound personally, unless he has been impeded, or the subject is willing to go to another. Yet neither Suarez, De Paen., d. 32, s. I, n. 5, nor Lugo, Paenit., d. 22, n. 3, seem to require this, unless some spiritual necessity of the penitent demands that he be heard by the pastor. The Code does not seem to urge the matter except according to the benign opinion.

But the pastor gravely sins who provides his parishioners occasion for confession only on a few days in the month. For he renders burdensome and difficult the reception of the sacraments, which he ought to render easy (Lehmk., II, 50).

"When necessity is urgent, all confessors are held by the obligation from charity of hearing the confessions of the faithful; and in danger of death, all priests" (c. 892, §2).

Confessors are those who, since they have obtained jurisdiction which they are accustomed to exercise, now receive confessions as if from office. Wherefore I would not think them excused by grave inconvenience, if those asking are in grave spiritual necessity, or if, in paschal time, there is a common scarcity of confessors in the place where they dwell. But if the one asking confession is in danger of death, now any priest is bound, and indeed under grave obligation, if the necessity of the penitent is grave. For in the priesthood received by them, the Church recognizes the title of an obligation which c. 892 declares to be present from charity.

— "If the confessor cannot doubt concerning the dispositions of the penitent, and the latter asks absolution, absolution is neither to be denied nor deferred" (c. 886).

If we compare this canon with c. 870, we shall say that here the Code inculcates the right which one duly disposed has, that in the sacramental judgment he be absolved: for absolution is a just sentence due to the penitent, and therefore not to be deferred. Besides, this rule is commonly proclaimed: that absolution is to be denied to him who is certainly indisposed, but of itself to be conceded to him who is certainly disposed.

Yet no one's right is injured on account of a manner of acting to which the lord of the right is not reasonably unwilling. But there are certain cases where all say that it is expedient, for example for rendering certain the execution of a present obligation, that absolution be deferred even for a disposed penitent. They then affirm that it can be deferred for the utility of the penitent himself. Besides there are also approved writers in the Church who think that delay of absolution must be used as a remedy for correcting relapsing penitents. Their opinion indeed is attacked by others, as we shall see in the moral part.

But here the question is raised whether these opinions have virtually been reprobated by the Code or not. We think this must simply be denied, as being wholly foreign to the mind of the legislator. He wished to eradicate a remnant of the Jansenist plague, that is, that abuse by which, in certain regions, confessors, moved by no peculiar utility of the penitent, were accustomed not to confer absolution except after two or three confessions or approaches to the confessor.

Therefore the controversies which were being carried on freely in the Church about this argument among Catholic theologians are not touched by this canon (cf. Ter Haar, C.SS.R., De conferenda absolutione sacramentali iuxta c. 886 Codicis iur. can.).

— Let the confessor "beware entirely lest he inquire after the name of an accomplice" (c. 888).

By this simple prohibition, c. 888 supplies for the excommunication formerly carried by the constitutions of Benedict XIV, Suprema, July 7, 1745; Ubi primum, June 2, 1746, and confirmed by the constitution of Pius IX, Apostolicae Sedis, October 12, 1869, among excommunications simply reserved to the Roman Pontiff, against those who have taught or defended as licit the practice of inquiring after the name of an accomplice under penalty of denied absolution.

The question concerns a penitent who has had an accomplice of his sin. To inquire after the name of that accomplice is studiously and from curiosity to seek that knowledge, whether, within confession, through interrogation of the penitent, or outside it, which would be much worse.

By the very law of nature we are prohibited from questioning the penitent concerning that name without a just cause. And it would be grave to do this under penalty of denied absolution, or if scandal or grave defamation is added: these things being excluded, it will be a sin of light curiosity.

But the penitent can be questioned concerning that name, insofar as there is need that the species or occasion of the sin be known.

The confessor will also be able, indeed of himself ought, to urge the obligation, if the penitent has any, of revealing or denouncing the accomplice outside confession; yet he cannot require that this revelation be made to himself, unless perhaps he is a Superior to whom alone the revelation can usefully be made. (This, however, St. Alph., n. 492, on account of the prohibition of Benedict XIV, does not dare to concede.)

But it is ill-advised for a confessor on his own initiative to assume the burden of denouncing someone for the penitent, indeed to agree to do this regularly. For the error by which perhaps the penitent is deceived will easily be imputed to him; so also the calumny which perhaps the penitent wishes to commit; and he can even come under suspicion of having violated the seal.

— I. 1. Religious priests do not licitly use their jurisdiction except from the faculty, at least presumed, of their Superior.

2. The master of novices and his associate, the Superior of a seminary or college, do not licitly hear the confessions of novices or of their boarder pupils, unless the pupils, from a grave and urgent cause, in particular cases, ask this.

3. Religious Superiors can hear their subjects who spontaneously approach them, but let them not do this by way of habit without grave cause.

4. In danger of death the sick person is licitly absolved by any priest, even of another rite, even by an excommunicate to be avoided whom he has sought, even when another priest is present. Absolution cannot be sought from a heretic or schismatic enrolled in a sect, outside necessity. The absolution of an accomplice remains illicit, on the part of the confessor, outside the case of necessity.

5. The use of probable jurisdiction is of itself licit. No one licitly uses negatively doubtful jurisdiction, or licitly absolves in common error, unless a cause altogether grave, of avoiding detriment, demands this. Concerning doubtful absolution the penitent must be warned that he may provide for himself.

6. Pastors and however many have care of souls entrusted to them must, from office, hear confessions as often as they are reasonably asked; the other confessors, who are accustomed to exercise jurisdiction, when necessity is urgent; and this from charity; in danger of death, all priests.

7. To a disposed penitent who asks absolution, absolution is neither to be denied nor of itself deferred.

8. But the name of an accomplice cannot be sought out by the confessor without a just cause.