Absolution Without Jurisdiction

Absolution Given by One Not Possessed of Jurisdiction.—(a) Effect.—Absolution of mortal sins given without jurisdiction is invalid; and of venial sins, is unlawful and probably invalid. In some cases, however, the Church supplies jurisdiction, as was said above (2752).

(b) Guilt.—There is no sin if the absolution is given in good faith, as when a confessor is inculpably ignorant of a reservation. If absolution is given in bad faith and the confessor knows that the Church does not supply, there is a grave sin on account of the irreverence to the Sacrament and the harm to the penitent. If the confessor knows that he lacks jurisdiction, but that the Church supplies on account of common error, it seems that no sin is committed if there is a good reason for giving absolution (e.g., the absence of other priests); but otherwise there is mortal or venial sin according to circumstances.

(c) Penalty.—He who with presumption hears confessions without jurisdiction or absolves from a reserved case for which he has no faculties, incurs in the former case ipso facto suspension from the power of Orders, and in the latter case ipso facto suspension from hearing confessions (Canon 2366).

563. • QUESTION 9. Does a Religious validly absolve when his Superior is unwilling, but by express delegation of the Bishop?

Reply 1. Negative, if the Bishop intended only to give approval and, moreover, the Superior is so unwilling ⁷ that he is considered to remove jurisdiction from his subject. The reason is evident. For then the Religious has jurisdiction from no one.

⁷ These things are not to be understood of just any Superior, but of the one who has power to constitute confessors according to the proper Constitutions of each Institute. Hence, if the Constitutions reserve this office to the Provincial Superior, it is manifest that the dissent of the local Superior, for example, of the Rector, Prior, Guardian, etc., cannot bring it about that jurisdiction conferred upon subjects by the Provincial ceases or is suspended.

Reply 2. Affirmative, however, if the Bishop intended also to confer jurisdiction, as is customarily done in present practice. The reason is that a Bishop can indeed confer jurisdiction upon a Religious, no less than upon a secular Priest, over his own sheep. For whoever enjoys ordinary jurisdiction can delegate it to any Priest. - Billuart, etc.

But that Religious would sin gravely against obedience, because in a grave matter he would transgress the precept of his Superior; nor in a case of this kind could he use the privileges which Regulars enjoy, for example, for absolving from certain censures. For a Religious receives a privilege of this kind only through the Superior himself, who by hypothesis grants no faculty to the subject ⁸.

⁸ These things are confirmed by a Declaration very recently issued by the Congregation of Bishops and Regulars (Acta ex iis decerpta, quae apud S. Sedem geruntur, vol. 1, p. 683). For the following doubts were proposed:

I. Whether a Religious not approved by his Superior according to the laws of his own Order, or when that Superior is unwilling, validly hears the confessions of secular persons with the faculty of the Ordinary alone.

II. Whether Regular Superiors having jurisdiction can suspend their subjects from hearing the confessions of secular persons even ex informata conscientia.

And, if affirmative, III. Whether a suspension pronounced orally and without writing is valid.

IV. Whether absolution imparted by one who is bound by such a suspension is valid.

To II. Affirmative; yet in such a way that the suspended Religious hears confessions illicitly, but not invalidly.

To III. Affirmative, since it is imposed after the manner of a particular precept.

To IV. Affirmative.

To V. Provided for in the preceding replies.

It is provided for in the preceding replies because, as the Reply to III has it, the suspension in the case is imposed not after the manner of a censure, but after the manner of a precept by which the subject is prohibited from hearing confessions. Hence the Editor rightly observes (loc. cit., p. 684) that the subject is disobedient, but not a violator of a censure, and consequently does not incur irregularity.

Moreover, the Declaration of the Sacred Congregation supposes that not only approval but also jurisdiction was conferred by the Ordinary of the place upon the Regular in question. Hence in the first question the careful expression with the FACULTY, not with the approval of the Ordinary, was employed. Therefore this Declaration detracts nothing from the COMMON opinion of the Theologians (see Struggl, Theol. mor., tract 11, q. 3, no. 30) that Regulars have jurisdiction from the Supreme Pontiff; this opinion we already saw above, no. 555, expressly confirmed by the Sacred Congregation of the Council. And hence it must be repeated that Benedict XIV (De Synod., bk. 9, ch. 16, nos. 7-8), although he disputes at length concerning the faculty of Regulars for administering the Sacrament of Penance, proves by many things the necessity of approval which Regulars must obtain from the Ordinaries of the places where they exercise the ministry; but he has not a single word concerning the conferral of the faculty or jurisdiction. And hence it must be repeated that the Doctors commonly teach that a Religious suspended by his proper Superior from hearing confessions imparts absolution neither licitly nor validly. See Laymann, De Poenit., ch. 10, no. 19. How this is reconciled with the Declaration just cited, you have in these words of Marcus Struggl (loc. cit., no. 32): It is inferred that the absolution of an exempt Regular Priest who, having been merely approved by the Bishop..., should hear confessions without any actual permission, either express or tacit, of his legitimate Superior, is invalid; because he would not yet have jurisdiction from the Supreme Pontiff, which requires the consent of the legitimate Superior as a condition sine qua non. If, however, the Bishop were at the same time to give his own episcopal jurisdiction to such a Religious, the absolution would be valid even if conferred against the positive will of the Superior. Meanwhile, however, the Regular by absolving in this way would sin lightly or gravely according to the measure of the disobedience and prohibition, as Sporer, no. 682, teaches with Tamburini.

Moreover, the faculties of this Religious in the case would not extend further than the Bishop can grant them by delegation. Therefore, even if the Religious belongs to an Order to which some special faculty has been granted by the Apostolic See, for example, to some mendicant Order which enjoys the privilege of absolving from Papal Cases (concerning which the Regulars themselves must now be consulted), nevertheless he would absolve invalidly from these. The reason is that he would possess a faculty of this kind only insofar as it were perhaps communicated to him by his Superiors. But in the case the Superiors grant him no faculty. Therefore.

V. And, if negative, whether one who attempts an absolution of this kind incurs irregularity.

The Sacred Congregation of Bishops and Regulars, after discussing the matter, replied on March 2, 1866:

To I. Affirmative.

QUESTION 10. Can Regulars without the approval of the Bishop absolve their servants or other members of the household dwelling in the monastery?

Reply. Affirmative, if these servants or other secular persons are as members of the household, that is, if they remain in the house day and night and are nourished there, so that they are continual table companions and live under the obedience of the Religious.

It is otherwise, however, if they are not so regarded, for example, if they remain only during the day and dwell elsewhere at night, as laborers, daily hirelings, farm workers, etc. Thus from the frequently cited Constitution Superna of Clement X, sect. 4: In monasteries, and also in colleges where life is lived according to regular institutes, both Regular Prelates and the Confessors of the Regulars of those monasteries or colleges can hear the confessions of those secular persons who are members of the household and continual table companions, but not of those who merely serve them. - See Lacroix, no. 1505.

S. Th., Suppl., q. 8, a. 6.

584. What supplied jurisdiction is. - When jurisdiction is lacking, whether ordinary or delegated, the Church can supply it, i.e., extraordinarily confer it while it has not been regularly conferred. Yet she does not do this except for a grave cause, on account of the common good of souls.

This jurisdiction, which the Church supplies, differs from ordinary or delegated jurisdiction in this, that it is conferred only in the very act of confession, and afterward is extinguished, whereas the other is given before confession and of itself remains after absolution. There are three cases in which the Church supplies: 1) in danger of death, 2) in the case of common error, 3) in the case of doubtful jurisdiction.

585. Principle I. On jurisdiction in danger of death. - Canon 882 is in force:

"In danger of death all priests, although not approved for confession, validly and licitly absolve penitents from any sins or censures whatever, however reserved and notorious, even if an approved priest is present, with the prescription of can. 884 and 2252 preserved."

It is said:

1. In danger, namely grave or proximate, and not only in the article of death, when death already so presses on that it will follow with moral certitude, but also when it is somehow imminent, so that, because of the circumstances, it can occur shortly, since this happens easily and rather frequently. Concerning this one must judge from indications and conjectures, so that it can prudently be feared lest death follow shortly; hence the merely subjective persuasion of the priest or of the family does not suffice. Nevertheless, if someone through error has judged that the danger is present, but prudently and because of a grave reason, the absolution will be valid, as having been given in a positive and probable doubt, as will be said in the next number;

2. of death, from whatever cause it may proceed, whether from within, as from a dangerous illness, a difficult childbirth, an inflicted wound, extreme old age; or from without, as from a judicial sentence, a difficult surgical incision, impending battle, long and dangerous navigation, etc.; not, however, as someone has said, from an air journey in ordinary circumstances, because it does not bring a proximate danger; but if it were otherwise, it would not even be licit to undertake it;

3. all priests, even irregulars, suspended priests, excommunicated persons, schismatics, heretics, apostates, provided they have been validly ordained;

4. validly and licitly absolve from all sins and censures in the internal forum, namely, so that this obtains no effect in the external forum, as the Commission of Interpretation declared, Dec. 28, 1927;

5. with the prescription of can. 884 and 2252 preserved; where a twofold restriction is added: a) according to can. 884, the absolution of an accomplice, outside the case of necessity, remains illicit on the part of the confessor (n. 635); b) according to can. 2252: "Those who, being constituted in danger of death, have received absolution from some censure ab homine or from a censure reserved in a most special manner to the Apostolic See from a priest lacking a special faculty, are bound, after they have recovered, by the obligation of recurring, under penalty of reincidence, to him who inflicted the censure, if it concerns a censure ab homine; to... someone endowed with the faculty (of absolving),... if it concerns a censure a iure; and of obeying their mandates" (cf. n. 682, B).

586. Principle II. On the case of common error and of doubtful jurisdiction. - Canon 209 is in force:

"In common error or in a positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the internal and the external forum."

A. The Church supplies in common error:

1. In order that the Church supply jurisdiction, there is required error, i.e., a false judgment concerning someone's jurisdiction, whether ordinary or delegated. Yet it is not necessary that there be error in fact among many persons (common error in fact), but it suffices that the foundation of the error, namely the fact on which the error is founded, be known to several. Indeed it suffices that some fact, which of itself is apt to induce many into error, has been placed publicly. Therefore it does not matter whether many in fact have approached him to whom they erroneously ascribe jurisdiction, or whether many have in fact been led into error, but whether there is a public fact which is apt to induce not one or another, but anyone indeterminately, into error (common error of law, virtual, interpretative). Nor is it necessary that there be a colored title, or an act on which the right rests but which labors under a hidden defect. A putative title suffices, namely one which is believed to be present when in reality it in no way exists. Thus he who is the putative parish priest validly assists at marriage.

2. According to the interpretation of the Commission for the Interpretation of the Code on March 26, 1952, "can. 209 is to be applied in the case of a priest who, lacking delegation, assists at marriage." This is in force not only if it is a question of an estimated delegation to the universality of matrimonial cases, but also of delegation to one determinate act.¹

¹ Cf. A. Delchard, Nouvelle Revue Theologique, 1952, pp. 1087-1090.

3. Nevertheless it is generally asserted, and it is also in force in particular error, that which we said above from can. 207: "With power granted for the internal forum, an act placed through inadvertence, after the time has elapsed or after the number of cases has been exhausted, is valid."

4. Since a priest who, certainly knowing that, in a case of common error, he lacks jurisdiction antecedently to the supplying of the Church, compels her, as if unwilling, to supply, and thus gravely disturbs order, he absolves illicitly unless there is a necessity, and indeed a grave one, of the penitent. A fortiori he would sin gravely who voluntarily provoked either common error or a grave cause of using it.

B. The Church also supplies in a positive and probable doubt, i.e., one seriously and solidly founded on grave reasons which, when subjected to examination, are neither destroyed nor overcome; but not in a light or slight doubt. For if no solid reason is present, the doubt is negative, not truly probable, and the Church does not supply. The doubt must be objective concerning the jurisdiction itself, not subjective concerning the doctrine or knowledge of the confessor about it; as if he himself positively doubts because he has not sufficiently inquired or because he does not well remember what the norm clearly expressed in law is, e.g., whether he read in books or heard from a professor that in such a case the power of absolving is present: then, namely, the jurisdiction is not doubtful, but the knowledge of the confessor about it is doubtful, and in the case the Church does not supply. But for using doubtful jurisdiction, in a doubt, namely, positive and probable, whether of law or of fact, a special reason of necessity is not required. A case can be: a doubt whether the superior can delegate, e.g., a bishop for a pontifical case; whether the power of hearing confessions has expired; whether the sin is reserved; whether danger of death is present.

Thus a confessor doubting whether in can. 875 and 514, § 1, by those staying day and night in a religious house there can be understood those who remain there for only one day and night, or whether, on the contrary, more time is required in order that they can be said to be staying, will be able to follow the more benign probable opinion.

Caius, a regular priest, after successfully passing the examination required by the Bishop, received from him ordinary faculties until the next synod. The superior of the house, who alone went to the synod, carried with him the faculty papers of the other Fathers to be renewed, but he could not find those of the absent Caius, which therefore were not renewed by the Bishop. Caius returned home on the following Saturday and there was not enough time to seek faculties from the Bishop; hence a doubt arose whether or not he could hear confessions. After some discussion of the doubt, the superior permitted Caius to hear the confessions of the faithful; afterwards, however, he was tormented by scruples concerning the validity of the absolutions that were given by Caius. Hence it is asked:

1. Who is the minister of the sacrament of Penance?

2. From whom do Regulars receive jurisdiction to hear the confessions of the faithful?

3. Can an absolution given by a priest who habitually lacks jurisdiction nevertheless sometimes be valid?

4. What is to be said of the case?

The first question is answered above, p. 169.

2. From whom do Regulars receive jurisdiction to hear the confessions of the faithful?

It is possible for Regulars to receive jurisdiction both from their own superiors and from the bishop of the place. As to whether they actually receive it from one or the other, or from both, depends on the intention of the bishop and of the superior in question. In any case the approbation of the bishop is required to hear the confessions of seculars.¹

1 Manual of Moral Theology, vol. ii, 189.

3. Can the absolution given by a priest who is without habitual jurisdiction nevertheless sometimes be valid?

Yes, the absolution is valid if the Church supplies jurisdiction for the act, as she sometimes does. Thus any priest may validly absolve those who are in danger of death, or when it is probable that he has jurisdiction, or when the faithful go to confession to a priest under the general belief that he has faculties and when also he has a colorable title, and probably even when there is only the general belief without any colorable title.²

2 Ibid., 184.

4. The case. Caius, a Regular priest, was examined by the bishop and granted by him faculties till the next synod. His faculties were not renewed at the next synod and the question arose whether he could go on hearing the confessions of the faithful. His Regular superior allowed him to do so, and thereby gave him jurisdiction which Regulars receive from the Pope through their Superiors. There was, however, a difficulty about Caius’ approbation. He had been examined by the bishop, had passed with success, and had a right to receive general and perpetual approbation. However, the bishop only gave him approbation till the next synod. So that, whatever the merits of Caius were, in fact he had no approbation after the next synod was over. He should not then have heard confessions, unless indeed it was known to be the intention of the bishop that in such cases where a priest’s faculties had not been renewed through inadvertence or by accident, they should not cease at the time appointed, but should continue. However, as the faithful knew nothing about this, those that came to him were probably absolved on account of the co mm on mistake, the Church probably supplying faculties.¹

1 Manual of Moral Theology, vol. ii, 185*