Jurisdiction to absolve

128. Approval of the Confessor · 129. Jurisdiction of the Confessor

Priests are judges in the tribunal of Penance, and judges must have jurisdiction if their sentence is to take effect. As the Council of Trent teaches: ‘‘Wherefore, since the nature and order of a judgement require this, that sentence be passed only on those subject to that judicature, it has ever been firmly held in the Church of God, and this synod ratifies it as a thing most true, that the absolution which a priest pronounces upon one over whom he has not either an ordinary or a delegated jurisdiction ought to be of no weight whatever.”¹ Jurisdiction in general is the power of ruling subjects. We must distinguish jurisdiction in the internal forum from jurisdiction in the external forum. The latter has reference primarily and directly to the common good, to promote which it makes laws, administers justice, and directs the machinery of government. Jurisdiction in the internal forum refers directly and primarily to the good of the individual soul, whose actions it directs toward God. It is exercised either in the sacrament of Penance, when sins are forgiven, or outside the sacred tribunal, as when a dispensation is granted from ecclesiastical law. Again, jurisdiction is either ordinary or delegated. Ordinary jurisdiction is that which is annexed to an office by law; delegated jurisdiction is committed to a person.

The Pope and Cardinals have ordinary jurisdiction for hearing confessions throughout the whole Church.

Local Ordinaries and parish priests and those who are in the place of parish priests have ordinary jurisdiction for hearing confessions in their respective territories, as also has the Canon Penitentiary. The superiors of exempt religious have ordinary jurisdiction for their own subjects (Can. 873).

One who has ordinary jurisdiction for hearing confessions can absolve his subjects wherever he finds them.

Ordinary jurisdiction ceases by loss of office, and, after a declaratory or condemnatory sentence, by excommunication, suspension from office, and interdict.

The Ordinary of the place in which the confessions are heard grants delegated jurisdiction to hear the confessions of all penitents, whether secular or religious, to all priests, both secular and religious, even though they be exempt; but religious priests may not use the same without at least the presumed leave of their superior (Can. 874).

Local Ordinaries should not habitually grant faculties for hearing confessions to religious who are not presented by their own superior, nor without grave reason deny faculties to those whom he does present.

Local Ordinaries should only grant faculties for hearing confessions to such as have been proved fit for the office by examination, unless there is question of a priest whose theological knowledge they know from other sources (Can. 887).

Delegated jurisdiction can be granted with certain limitations as to time, place, persons, and cases.

Jurisdiction must be granted in writing or expressly by word, and without charge.

Parish priests, vicars of parish priests, and other priests with general delegation cannot delegate jurisdiction for hearing confessions without the faculty or mandate of the Ordinary of the place (Com. on Canon Law, October 16, 1919).

By Canon 881 all priests, whether secular or regular, approved for hearing confessions in any place, whether they have ordinary or delegated jurisdiction, can absolve validly and lawfully homeless persons and strangers who come to them from another diocese or parish, as also Catholics of any Oriental rite.

Without grave cause local Ordinaries may not revoke or suspend jurisdiction for hearing confessions, nor without consulting the Holy See can they lawfully take away faculties at one time from all the confessors belonging to a formed house of religious (Can. 880).

Delegated jurisdiction ceases when the mandate has been executed, when the time has elapsed or the number of cases for which it was given is exhausted, when the final cause of the delegation ceases; by the revocation of him who gave it directly intimated to the delegate, by the renunciation of the delegate directly intimated to him who gave it and accepted by him. It does not cease when he who gave it loses his authority, unless a clause was inserted to that effect, or jurisdiction was given as a favour to special persons to hear a confession and nothing has been done in the matter. If the case has been begun it may be finished (Can. 207).

However, if by inadvertence absolution is given after the lapse of the time for which jurisdiction was granted, or after the number of cases was exhausted, it is valid (Can. 207, sec. 2).

Even when a priest has not jurisdiction habitually, the Church sometimes supplies it for the good of the penitent, so that the absolution given may be valid.

In danger of death all priests, even though not approved for hearing confessions, may validly and lawfully absolve any penitents from any sins or censures, however reserved and notorious they may be, and even though an approved priest be present, but the special law about absolving an accomplice must be observed (Can. 882).

In a case of common mistake when many of the faithful think that a priest has faculties while he has not, the Church supplies jurisdiction, but if a priest knowingly exposes himself to hear confessions without faculties he sins grievously.

The Church supplies jurisdiction in a case of positive doubt and probability as to whether a priest has it (Can. 209).

According to Canon 883 all priests while on a sea voyage, provided that they have received faculties for hearing confessions, either from their own Ordinary or from the Ordinary of the port where they embarked, or from the Ordinary of any intermediate port by which they pass on their journey, can, during the whole voyage, hear the confessions in the ship of any of the faithful on board with them, although the ship on its voyage may pass by or even stay for some time in various places subject to the jurisdiction of different Ordinaries.

Moreover, when the ship stops on the voyage they can hear the confessions both of the faithful who for any reason come on board, and of such as while they chance to be on land ask them to hear their confessions, and validly and lawfully absolve them even from cases which are reserved to the-Ordinary of the place.

The Holy See has made special regulations with regard to the faculties of army chaplains (Can. 451, sec. 3).

¹ Sess. xiv, c. 7.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 1 passage

Vol. II, Bk. III, Tr. V, Diss. II, Pt. II, Sect. I, Ch. I, Art. III, Scholion. On Supplied Sacramental Jurisdiction

n. 388.

Let the things said about supplied jurisdiction generally be compared (vol. I, n. 102 sq.).

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 2 passages

Vol. II, Pt. II, Q. IV, Art. 3. Repentance; Penanc…, Jurisdiction

n. 2751.

Power of Jurisdiction

Power of Jurisdiction.—The power of jurisdiction is so necessary that without it absolution is null.

(a) Jurisdiction in general is treated in Canons 872 sqq. of the Code. Ordinary jurisdiction is had by the Pope for the whole Church, and by Ordinaries, parish-priests, exempt religious superiors, etc., for their own subjects. Delegated jurisdiction comes from the law itself in favor of penitents who are dying (Canon 882), or who are making a sea voyage (Canon 883), a privilege extended recently also to those who are making air journeys, or who are outside their domicile (Canon 881), etc.; while delegated jurisdiction from man is had by those priests who have obtained faculties orally or in writing from the competent superior (Canon 879).

(b) Jurisdiction in special cases is treated in Canons 874, 875, 876, 519 sqq. Religious women living in community should have for each house one ordinary confessor and one extraordinary confessor who comes four times a year. Further, the bishop should appoint supplementary confessors to whom the Religious may freely make their confessions, and special confessors for individual Sisters when spiritual progress is aided by such an arrangement.

n. 2752.

When the Church Supplies Jurisdiction

When the Church Supplies Jurisdiction.—In certain cases the Church, for the good of souls, supplies jurisdiction for the time being to priests who lack it:

(a) in case of common error, that is, when all or many of the faithful in a place think that a priest has jurisdiction, as when he is seated in the confessional of a public church hearing or waiting to hear those who are going to confession. The common error is not of law, but of fact;

(b) in case of uncertainty of law (e.g., whether a certain sin is reserved) or of fact (e.g., whether the confessor’s jurisdiction has expired) about the confessor’s jurisdiction, if the confessor has a positive or probable reason in favor of his right to absolve. The Church supplies jurisdiction in the absolution of a reserved censure whose reservation was not known to the priest, unless it be ab homine or most specially reserved to the Holy See (Canon 2247, n. 3);

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 17 passages

Vol. III, On Penance, IX. On the Jurisdiction of the Confessor

n. 765.

Is jurisdiction required for hearing Confessions licitly and validly? - Jurisdiction, taken generally, is a certain moral power of governing subjects. Ecclesiastical jurisdiction is twofold: one in the external forum, and it is the power of making laws, inflicting punishments, etc.; the other in the internal forum, and it is the power of absolving or binding in the tribunal of Penance. But this is either ordinary, which belongs to someone by reason of an office having care of souls annexed; or delegated, which is given to another by one having ordinary jurisdiction. - The power of jurisdiction is necessary for hearing Confessions, and the power of order does not suffice. The reason is that absolution is a judicial sentence, which cannot be passed except upon subjects. Therefore subjects must be assigned to the confessor; but this pertains to him who has authority over those subjects. This is altogether required for the right governance of the Church. And this is established from Trent, sess. 14, C. 7, declaring that "that absolution must be of no moment which a priest pronounces upon one over whom he does not have ordinary or subdelegated jurisdiction." - L. 557.

n. 766.

To whom does jurisdiction belong? - Ordinary jurisdiction belongs: to the Pope for the whole Church in each forum, since he has the Primacy of jurisdiction. Vatican Council, Constitution Pastor aeternus. The Major Penitentiary acts in his place in many things. - To Legates for their province, and to Cardinals for their church. - To the Bishop for his diocese, also in each forum, since this has been committed to him so that he may rule and direct it; likewise to the Archbishop toward the subjects of his Bishops, only when he is actually visiting; and, according to the more common and truer opinion, to the Vicar General, since he makes one tribunal with the Bishop. C. Non putamus 2, de Consuetud. in 6; C. Romana 3, de Appellat. in 6. But when the Bishop has died, the jurisdiction of the Vicar ceases, not because his jurisdiction is not ordinary, but because, with the Bishop lacking, he ceases to be Vicar. - To the Capitular Vicar when the See is vacant. - To pastors for subjects in the internal forum, Trent, sess. 23, C. 15, de R.; and to the penitentiary canon in his own diocese, and to all those who have a benefice or office to which the obligation of hearing Confessions is annexed. - To abbots and prelates of regulars for their subjects, from several privileges granted to them by the Supreme Pontiffs themselves.

Penitentiaries appointed in the Basilicas of the City hear confessions of all the Christian faithful, even regulars, even without any permission of their superiors. Benedict XIV, Constitution Inter praeteritos, Dec. 3, 1749; Constitution Convocatio, Nov. 25, 1749.

Delegated jurisdiction is granted by the Church to any priest in a case of extreme necessity, or at the point of death. Trent, sess. 14, C. 7. At the point of death, that is, whether at the point or in danger of death, because the necessity of the penitent is almost the same in danger as at the point of death; and because in this matter point and danger are taken for one and the same, C. Si quis suadente 29, can. 17, q. 4. And indeed danger and point of death are either taken for one and the same among the doctors, or, if they are distinguished, that distinction has itself thus: point designates death nearly imminent, morally certain, and almost inevitable; but danger is when there is a probable doubt, and death is frequently accustomed to happen in such a case. Suarez, in 3 p., t. 4, d. 26, s. 4, n. 2; Lugo, de Poen., d. 18, n. 20; Ithur., Cas. 49, nn. 1-3, 10-16; Giraldi, Expos. Iur. Pont., p. 2, s. 39, par. Verum; L. 561. - But such danger is judged to be present in battle, in a long and dangerous voyage, in difficult childbirth, in a dangerous illness, in probable danger of falling into insanity, in slight hope of liberty for captives among infidels if they are believed to be going to have no other priests, etc., namely whether death threatens from within or from without. - L. 557, 558, 559, 561. "Any priests whatever, undertaking a sea journey, provided they have or obtain the faculty of receiving sacramental Confessions either from their own Ordinary, from whose diocese they depart, or from the Ordinary of the port in which they embark, or even from the Ordinary of any intermediate port through which they pass in the journey, can on the ship, during the whole maritime journey, receive the Confessions of the faithful sailing with them, even if perhaps during the journey itself it is necessary to pass through, or even for some time to stop in, different places subject to the jurisdiction of different Ordinaries." Holy Office, Aug. 23, 1905. Likewise, "as often as the ship stops during the journey, they can hear Confessions both of the faithful who for any reason come to the ship, and of those who, when they perhaps briefly go down onto land, ask to confess, and they can validly and licitly absolve them, even from cases perhaps reserved to the Ordinary of the place, provided nevertheless - as regards the second case - there is no priest approved in the place, or only one, and the Ordinary of the place cannot easily be approached." Holy Office, Dec. 12, 1906. "The faithful of the Ruthenian rite, in the Canadian region, even in places in which a priest of the Ruthenian rite is present, can confess their sins to a Latin priest approved by the Ordinary of the place and validly and licitly obtain the benefit of sacramental absolution. The faithful of the Latin rite can confess their sins to a Ruthenian priest approved by his Bishop in places in which there is a mission or church of the Ruthenian rite. But Ruthenian priests cannot absolve the faithful of the Latin rite from censures and from cases reserved in the Latin diocese in which they exercise the sacred ministry without permission of the Latin Ordinary. Conversely let the same be said of Latin priests as regards censures and reservations established by the Ruthenian Bishop." S. C. de P. F., Aug. 18, 1913, art. 28. "The Ruthenian faithful in the United States of North America, even in places where a priest of the Ruthenian rite is present, can confess their sins to a Latin priest approved by the Ordinary of the place, and validly and licitly obtain the benefit of sacramental absolution. But priests of the Ruthenian rite should know that censures and reservations of cases in the diocese in which they exercise ministry, whether now in force or to be imposed, also affect the clergy and people of the same Ruthenian rite." Pius X, Constitution Ea semper, XVIII Kal. July 1907, concerning Ruthenians in the United States of North America, art. 25. "The Latin faithful in the United States of North America, even if a priest of the Latin rite is present, can confess their sins to a Greek-Ruthenian priest approved by his Ordinary and validly and licitly obtain the benefit of sacramental absolution. Likewise the Greek-Ruthenian faithful can confess their sins to a Latin priest approved by his Bishop. But Latin priests will not be able to absolve the faithful of the Greek-Ruthenian rite from censures and cases reserved by the Greek-Ruthenian Ordinary without permission of the same. Conversely let the same be said of Greek-Ruthenian priests as regards censures and reservations established by Ordinaries of the Latin rite." S. C. de Prop. Fid., Aug. 17, 1914, for Greek-Ruthenians in the United States of North America.

n. 767.

Can delegated jurisdiction be subdelegated? - Resp. In the negative, generally speaking, namely unless a special concession of the delegating one is added; and then it is judged to be subdelegated in the name of the delegating one himself. The reason is that the delegate has only that power which is granted to him; but only the power of exercising jurisdiction is granted to him, not of committing it to another, unless something else is expressed. Except: 1. If jurisdiction is delegated to someone as a privilege perpetually annexed to his office or dignity; for then such jurisdiction is regarded as ordinary, as is the faculty imparted to Bishops by Trent, C. Liceat 6, sess. 24. 2. If an office is committed to someone to which jurisdiction is annexed; and this holds even if the office is not proper, but that of a vicar, e.g., a vice-pastor or vice-rector for an absent pastor, or one not yet a priest. A vicar of this kind can well subdelegate his jurisdiction, not indeed the whole, but a part, namely for one or another cause. The reason is that then not only the exercise of the pastor has been committed to him, but also the office of pastor, to which belongs not only the use but still also the delegation of jurisdiction. - L. 566; St. Thomas, Quodl. 12, a. 31; cf. vol. 1, nn. 250, 254.

n. 768.

Does delegated jurisdiction of hearing Confessions expire by the death or removal from office of the one granting it? - There is a twofold opinion. The first, which Thomas Sanchez says is sufficiently probable, affirms it. But the second, which the same Sanchez holds as more probable, denies it, whether that permission was granted by a Bishop or by any other Ordinary who can grant it. The first reason is "because all laws deciding that the power of delegated jurisdiction perishes by the death of the delegating one, while the matter remains intact, treat of contentious power, such as this is not.... 2. Because, although permission to hear Confessions is in favor of penitents, it is deservedly numbered among graces already made; because, since it is not granted with respect to a determinate person in that person's peculiar favor or at his petition, it is rather regarded as a grace made to the priests themselves, since it redounds to their greatest favor; and as soon as it is granted to them, it is perfectly granted and depends on the execution of no one. And this is the definition of a grace made. But a grace made does not expire by the death of the one granting, even if the matter is intact. 3. Because practice itself so testifies. Indeed, when the Bishop has died, all confessors exposed by him are accustomed to hear Confessions until the permission is revoked by the chapter or by the successor Bishop." Sanchez, de Matr., l. 8, d. 28, nn. 71, 72; who adds besides these things which make for a fuller knowledge of the present matter: 1. "When, however, permission had been granted to a priest of hearing the Confessions of a determined penitent, in favor of that penitent, the faculty would expire by the death of the one granting, while the matter is intact, i.e., as regards a Confession not yet begun before. Because, since that grace is in favor of that penitent and is not yet perfected, but is to be executed by the confessor, it does not have the nature of a grace made, but of a grace to be made, which we have said expires by the death of the one granting, while the matter is intact.... 2. Permission granted by a Bishop or other prelate of choosing a confessor... more truly... does not expire by the death of the one granting, even while the matter is intact, or by removal from office..., because this faculty is to be judged not as delegation, but as a grace made." l. c., nn. 73, 74. - Lugo, Resp. Mor., l. 1, d. 20. "It is certain," says Bouix, de Iur. Reg., vol. 2, p. 247, "that unlimited permission does not expire by the death of the one granting; and about this there is no doubt. Likewise it is certain that permission for a determined time does not expire by the death of the one granting, but perseveres until the expiration of the fixed term; this likewise is outside controversy. Concerning permissions at good pleasure, Clericatus indeed asserts, after Diana, that they expire by the death of the one granting.

But on the contrary side is the common opinion of the doctors, which Ferraris thus explains, v. Approbatio, a. 1, n. 10, etc." Cf. St. Alphonsus, 551, 552, 558, 559, where the holy Doctor affirms that the faculty given in this way expires by the death of the one granting: "until our good pleasure, or at the judgment of our will, and the like." But l. 1, App. 2, n. 13, he thinks the contrary opinion probable. C. Si gratiose 5, de Rescr. in 6, favors cessation. But S. C. EE. et RR., June 17, 1866, and C. 16, de R. I. in 6, favor duration.

From the Decree of the Holy Office, May 3, 1889, faculties habitually granted to Ordinaries, even for a predefined time or for a determined number of cases, all pass to successor Ordinaries. Ferr., Supplementum, v. Episcopus, n. 20. This was extended by another Decree of the Holy Office, May 3, 1899, to Superiors General of Religious Orders. E. M.

n. 769.

Does the Church supply jurisdiction when penitents invincibly ignore its defect? - It must first be noted that defect of jurisdiction can happen in diverse circumstances of things. For the error can be either common among the faithful, or private to only some person. Again a priest lacking jurisdiction can have a colored title, or only an estimated one. Title signifies cause, and therefore a title is that by which some right is acquired for us. But a colored title is a title false in itself, but nevertheless truly conferred by a superior, and therefore bearing before itself the appearance of a true title, although from some cause it labors under a hidden defect of nullity. Thus a priest who is made pastor simoniacally obtains an invalid title from Canon Law; and, if he was constituted in the parish by a legitimate Bishop, he has a colored title. Cf. C. Statuimus 107, caus. 1, q. 1. But a merely estimated title is one which is regarded by the faithful as present, although it does not exist.

The Church certainly supplies if the error is common among the faithful and at the same time joined with a colored title. The reason is drawn from the common interpretation of theologians resting on diverse places of Law. For, as they say, the Church as a pious mother is deservedly judged to supply jurisdiction for the good of souls, since she can do this. This is equally valid whether someone has ordinary or delegated jurisdiction. It is valid besides even if the confessor knows that he does not have jurisdiction, e.g., one who knows that the time of approbation has elapsed for him, or that by force of a sentence secretly notified to him he has been suspended from hearing Confessions. L. 572.

Probably also the Church supplies if there is common error, or error public of itself, without a colored title, but with only an estimated or fictive title. For the same reason urges as in the preceding case, since also in this hypothesis innumerable souls can perish; especially since a title here is not accustomed either to be sought or exhibited when someone receives power from a superior of hearing Confessions or absolving from reserved cases. Thus several grave doctors; and St. Alphonsus thinks this probable in the cited place. And this is valid whether it is a question of simple absolution from sins, or of absolution from reserved cases, since in each case the reason is the same, namely the good and necessity of souls.

The Church is not judged to supply jurisdiction if the error is private, e.g., if it is of one or of a few. The reason is that the Church is not judged to supply except by reason of the common good, namely after the manner of a provider or general governor who attends only to the general good of society and leaves the good of private persons to the care of particular providers. - Ithur., Cas. 33; Cas. 47, nn. 9, 13; E. M.

n. 770.

Is it lawful to absolve with doubtful jurisdiction, when there is doubt of fact whether it is present? - Doubtful: it is a question of negative doubt, by which the mind remains uncertain and suspended, without being determined to a judgment, namely to a positive judgment, although only probable. Whether it is present: e.g., whether the definite time of approbation continues; whether he is within the territory of the one delegating and approving; whether such a sin is not contained in the catalogue of reserved cases, etc. Wherefore it is a question of doubt of fact, namely of a particular or private fact. Resp. In the negative, unless some necessity urges. For the sacrament is cast into danger of nullity, and thus the penitent is exposed to grave harm. But in necessity one must aid the neighbor in the best way that can be done. Necessity is present: 1. if the precept of annual Confession urges; 2. if the penitent must celebrate Mass or communicate and otherwise would incur a mark of infamy; 3. if a priest is bound by obligation to celebrate; 4. if the penitent has already confessed his sins, for then he has an acquired right to obtain absolution. But because of reverence for the sacrament, absolution must be given under condition; and the penitent must be warned about the doubt of valid absolution, so that provision be made for his salvation. Consequently he is both to be excited by the confessor to contrition, and then must confess his sins to another having jurisdiction, because they certainly must be subjected to the keys.

But, the case of providing for one's own salvation being excluded, there are not lacking those who judge that there is no need of such admonition, because the obligation of confessing them has already probably been satisfied. Cf. the following number. But here it is a question of negative doubt. How, therefore, can it be affirmed that it has probably been satisfied? - Castro Palaus, tr. 23, p. 14, n. 25; L. 571, 432.

n. 771.

Is it lawful to absolve with jurisdiction speculatively probable, or with positive doubt of law? - Doubt properly so called is negative doubt. Positive doubt, improperly called doubt, is such only by reason of the fear with which a judgment is made, although a judgment is made determinately, yet an uncertain judgment, namely a probable one, in which there is breadth and variety; because it can be judged that each part is equally probable, or that one is probable and the other more probable, or that only one is probable, because its motive is neither evident nor certain, although the opposite has no foundation of probability. Jurisdiction speculatively probable, or positive doubt of law, is, e.g., that common error without a colored title gives jurisdiction; that one not approved absolves a dying person when an approved one is present; that even one not approved validly absolves from venials, etc. Wherefore doubt of law falls back into doubt of fact, not indeed of a particular fact, but of a universal fact; or the doubt is about a common question of law, not of private fact.

Moreover St. Alphonsus, 573, says: "The common opinion teaches that it is lawful to absolve with probable jurisdiction, provided the opinion is truly probable, supported by grave reason and authority. Thus Sanchez, Lugo, who thinks it most safe, etc.... and Sanchez, Tamburini, Cardenas, and Dicastillo, Illsung, Gormaz, Stoz, etc., apud Croix, l. 6, p. 1, n. 117, call it morally certain." But the same holy Doctor proposes the other opinion, which he says he follows, thus: "It is indeed lawful to administer this sacrament of penance with probable jurisdiction, but only when there is present a cause of grave necessity, or of great utility... or a reasonable cause.... The reason for this limitation is that, although in that case the Church can well be judged to supply jurisdiction because of the good of souls, nevertheless, with no just cause added, she is not presumed to wish to connive at the mere liberty of priests." - But the weakness of this opinion is shown by the very reason of the prior opinion, which St. Alphonsus himself thus explains and proves: "In the Church there is a universal custom of almost all confessors of absolving with probable jurisdiction, as Suarez, Lugo, etc., and all the other authors cited for this opinion commonly testify. But the common opinion of doctors founds moral certainty about the aforesaid custom. And although the contrary authors think it illicit to absolve with probable jurisdiction, nevertheless they pass over, nor can they deny, that this custom is present at least among the far greater part of confessors. Therefore, once this custom is placed as certain, it is certain that it is lawful to administer the sacrament with probable jurisdiction, since the custom itself supplies jurisdiction, as Suarez, Navarrus, etc., teach; and they prove this from C. Cum contingat 13, de Foro compet.... Jurisdiction can well be supplied by the Church, and it is morally certainly presumed to be supplied in this case because of the good of souls. Hence the confessor, in absolving, would not absolve with only a probable opinion, but with a morally certain one, not direct, but reflex." - These things concern positive doubt or probability of law. But what about positive doubt or probability of fact, namely of a private fact? Several affirm the same, among whom is D'Annibale, ed. 3, p. 1, n. 80, note 78; but others commonly deny it. - And those perhaps affirm it because a private fact can sometimes be joined with common error. Cf. 769. - La-Croix, l. 6, p. 1, nn. 118, 120; Lugo, d. 19, nn. 20, 23 ff.; L. 571, 573; D'Annibale, p. 3, n. 321.

n. 772.

Do heretics, schismatics, excommunicates to be avoided, etc., validly absolve in danger of death, when another priest is lacking? - Resp. In the affirmative. The reason is that all priests can absolve in danger of death. Trent, sess. 14, C. 7; L. 560.

n. 773.

Can a simple priest validly absolve a dying person, even when an approved confessor is present? - St. Alphonsus, 562, denies it because of the authority of the Roman Ritual, de Sacr. poenit., at the beginning, where it is said thus: "But if danger of death threatens and an approved confessor is lacking, any priest can absolve from any censures and sins whatever." Several grave theologians hold this opinion. But also several other grave theologians affirm. A very strong argument indeed is available from Trent, sess. 14, C. 7, where that faculty is given absolutely and universally to all priests, for any penitents, and any sins and censures whatever; and the most universal reason is assigned, lest anyone perish. Wherefore where the law does not distinguish, neither must we distinguish, unless an exception is made by the law itself, as for the case of a priest who is an accomplice in a shameful sin, as is explained in its own place; and by this exception also, where it is a question of mere validity, the present doctrine is confirmed. Cf. 1282. Moreover the reason adduced by the Council, lest anyone perish, demonstrates every kind of breadth in this matter; for if this were excluded, someone certainly could sometimes perish because of lack of liberty. And this is added besides, that in the same Church of God it was always kept that there be no reservation at the point of death; but where there is no reservation, it is vainly asked who has power in reserved matters. Finally, before Trent no approbation of the Bishop was needed for hearing Confessions; therefore the old law, as regards the point of death, was not only not derogated, but confirmed, since the Council appeals to the old law itself when it says, "which in the same," etc. It is confirmed from the Response of the Holy Office, July 29, 1891. - Ithur., Cas. 12, 42; Lugo, d. 18, n. 23; L. 560; E. M.

n. 774.

Can someone absolve his own subject in another diocese without the approbation of the Ordinary of the place? - Resp. In the affirmative, if the confessor is the proper pastor of that penitent. The reason is that pastors are exempted by the Council of Trent from that law of approbation. Wherefore outside their own parish or even diocese they need to be approved by no one in order to hear the Confession of their own parishioners. - In the negative, if he is not the proper pastor. The reason is that from Trent pastors alone are exempted. Wherefore all others having delegated jurisdiction need the approbation of the Bishop of the place.

Nevertheless there are not lacking grave theologians who think that in this matter the right of one having ordinary and delegated power is the same. For the delegate uses the jurisdiction of the one delegating. But the difficulty in the present question is not about jurisdiction, but about approbation. Wherefore, if it were only a question of absolution from censures, for which approbation is not required, he certainly could do this absolutely; absolutely, namely unless he had received jurisdiction restricted by delegation to his own territory. And the same, from the old law now, would be true of matrimony, at which outside the diocese both the proper pastor and a priest deputed by the same pastor would validly assist. From the old law now: for at present, from the decree Ne temere, the pastor and the Ordinary of the place cannot grant permission except to another determined and certain priest, so that he may assist at marriages within the limits of his territory." - L. 548; Lugo, Resp. Mor., l. 1, d. 17; D'Annibale, p. 1, n. 330; p. 3, n. 322, ed. 3; cf. here 783.

n. 775.

Can a pastor summon a pastor of the same or a different diocese to hear Confessions in his parish? - As regards a pastor of the same diocese, although by force of his office he has special jurisdiction only for his own parish, nevertheless from almost universal custom he can hear Confessions also in the whole diocese, unless the Bishop decrees otherwise. Nevertheless the proper customs of places are to be consulted. - As regards a pastor of a different diocese, various opinions are brought forward, as Benedict XIV says, Instit. 86, n. 7. Those who affirm argue from Trent that a parochial benefice serves for universal approbation. Others deny this, to whom St. Alphonsus, 544, adheres. Declarations of the S. C. C. apud the same holy Doctor favor this opinion. The first opinion can be admitted in those places where such a custom is present.

n. 776.

Can a priest approved by the Bishop hear Confessions of the faithful without permission of the pastor? - Resp. In the negative as to liceity, if the Confessions are received in a church subject to the pastor. The reason is that due order altogether requires that, since the pastor is the immediate superior in his own church, permission to exercise sacred ministries there be sought from him. Nevertheless the permission of the pastor is not required for hearing Confessions in a chapel of regulars or nuns, but the permission of the superior or superiorness of the place suffices. But as regards validity, it is certain, according to all, that the license of the pastor is not required outside the case of annual Confession. Indeed it is not required even for annual Confession, at least of itself, or by common law. This is established from the common doctrine of theologians against certain ones, and also from the present custom and universal practice of the Church, as Benedict XIV testifies, Inst. 18. - L. 574.

n. 777.

Can a priest approved in some place receive the Confessions of travelers coming there? - Resp. In the affirmative absolutely as regards regular confessors, who have this special privilege from the Apostolic See. C. Inter cunctas of Paul III; C. Superna of Clement X. - In the affirmative also as regards secular priests. The reason is that such is the universal custom, which, having its origin at first from the tacit consent of Ordinaries, now, confirmed by long use, has been prescribed, and obtains the force of a universal law. - L. 569.

n. 778.

Can the Bishop prohibit, under penalty of invalidity, that diocesans go to confess outside the diocese? - Resp. In the negative, if they go to confess outside the diocese to regular confessors who have the privilege of hearing Confessions of all the faithful coming from anywhere. Suarez, de Relig., tr. 10, l. 9, nn. 19, 20; Reiff., tr. 14, dist. 8, q. 1, n. 11; Laymann, l. 5, tr. 1, c. 10.

This is confirmed by a Declaration of the Sacred Congregation and the annotation of the gloss apud Fagnanus, l. 5, cap. 12, in cap. Omnis utriusque sexus, n. 79, where it has these things: "The Sacred Congregation declared that regulars within the diocese of the approving Bishop can also absolve penitents of another diocese, since they have jurisdiction from the Pope from Clem. Dudum, de Sepult., whose jurisdiction is not restricted to the limits of some territory, but the whole world is his diocese." - In the negative also as regards secular confessors. There exist several decrees of the Sacred Congregations by which prohibitions of this kind are reproved. Cf. Collectan. S. C. de P. F., n. 928 ff. The reason is that the Bishop cannot universally, and particular cases being excluded, prohibit that which is permitted by universal custom legitimately prescribed, or by the universal law of the Church. Nor does what is objected stand in the way, namely that it is repugnant to divine law for someone to choose a confessor for himself without the permission of his own Pastor. For this is freely conceded. But one who, with the Supreme Pontiff permitting through universal custom, chooses a confessor for himself, does not choose him without the permission of his own Pastor. "Custom," says St. Thomas, Suppl., q. 20, a. 2, "gives or takes away power in such matters." Quodl. 1, a. 12; L. 564; E. M.

n. 779.

Does a delegate absolve validly and licitly after the term of delegation to be renewed yearly has elapsed, e.g., if a crowd of penitents flows to some great solemnity? - He absolves invalidly, of itself, or by reason of jurisdiction, because in fact he has none. Nevertheless, more probably, he absolves validly, at least for the most part, by reason of common error, because of which the Church is judged to supply for the good of souls.

But the priest sins gravely, of itself, if he knowingly does this; the reason is that he exercises the office of confessor without legitimate authority. And although then the Church supplies, he is nevertheless guilty because he himself unduly compels her to supply.

n. 780.

Can military chaplains absolve soldiers everywhere without approbation of the Bishop of the place? - Resp. In the affirmative, if they have been specially delegated by the Supreme Pontiff for the spiritual care of soldiers, or by a major chaplain approved by the Pope. - But if they lack this special delegation, they can indeed hear Confessions in the diocese of the approving Bishop, and also outside it on a journey and in camps, from the tacit consent of Bishops, as is clear from universal custom; nevertheless they cannot validly absolve in stations or in garrisons without the license of the Bishop of the place, because they have no jurisdiction. This is established from various Declarations of the S. C. C., March 6, 1694; June 29, 1707; A. S. S., vol. 1, p. 681; A. A. S., vol. 2, p. 501; Zacharia apud La-Croix 1518; L. 577; E. M.

The Major Chaplain or Vicar General of the armies exists in Spain, having all military jurisdiction. Chaplains approved by him absolve soldiers independently of the Ordinaries of places. It is not established that these chaplains in Spain are bound to Mass for the people. - A military Vicar, or Major Chaplain, has been constituted in the army of the Republic of Chile. Motu proprio of Pius X, May 3, 1910. - Military chaplains in England receive faculties from the Archbishop of Westminster. S. C. de Prop. Fid., May 15, 1806. "The Bishop of Verdun, under whose jurisdiction very many soldiers are contained, for the religious care of them in time of war and at the same time for forestalling difficulties, humbly asks Your Holiness that he command a suitable declaration of the following doubts and grant the requested faculties: "I. Whether any soldier whatever, constituted in the state of military convocation, or, as they say, mobilization, is by that very fact in danger of death, so that he can be absolved by any priest encountered? "If in the negative, may Your Holiness deign to impart to any priest who, at the time of the declared war, could by law celebrate Mass, the faculty of absolving from all cases any soldier from his own or a hostile nation, or even from a friendly one. "II. Whether irregularity is incurred by every cleric whom French law has forced actively to wage war or fight? "If in the affirmative, may it please the Most Holy One to remove the aforesaid irregularity in such a way that clerics exercising war can approach the Sacraments, and priests actively serving the work of war may be able both to receive and administer Sacraments. "III. Whether a cleric constituted in sacred orders, whom military convocation, or, as they say, mobilization, has assigned to the function of a soldier, either active or serving wounded comrades, exists free from the law of the Divine Office? "If in the negative, may Your Holiness deign to exempt the aforesaid clerics from the law of the Breviary during the war. "Resp. To the first: the doubt having been reformed: 'Whether any soldier whatever, constituted in the state of military convocation, or, as they say, mobilization, can by that very fact be equated with those who are in danger of death, so that he can be absolved by any priest encountered': In the affirmative, according to the rules handed down by approved authors. "To the second doubt: To the first part: Let the petitioner consult approved authors; to the second part: the Sacred Penitentiary benignly grants that military priests, other things being equal, during military operations, may say Mass and administer Sacraments, notwithstanding the irregularity which, by fighting, they perhaps incurred; but when the war has been settled, let them have recourse to the competent authority. But nothing stands in the way of the same priests and other military clerics, although perhaps they have fallen into irregularity, being admitted to the Sacraments. "To the third doubt: To the first part: during war and its proximate preparation, in the affirmative. To the second part: provision has been made in the first." Sacred Penitentiary, March 18, 1912, n. 780.

n. 781.

Can pastors, Bishops, Cardinals choose a confessor for themselves? - Resp. To the first: In the negative, from proposition 16 condemned by Alexander VII. - To the second: In the affirmative, from C. Ne pro dilatione, fin., de Poenit. et rem. But the Sacred Congregation apud Fagnanus, in the said chapter n. 62, declared that this is to be understood only that Bishops outside the diocese can choose a priest subject to themselves. - To the third: In the affirmative. For a privilege was granted to them by Pius X "of choosing for themselves and their familiars a priest for receiving confessions, who, if he lacks jurisdiction, obtains it by the law itself, even as regards sins and censures from which the same Cardinals can absolve." Cf. vol. 1, n. 260 bis. - L. 565; de Priv. 65; Lugo, d. 20, n. 64; E. M.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 85 passages

128. Approval of the Confessor

"Candidus, a newly ordained priest, was called to undergo an examination of doctrine for hearing confessions. After the examination had been completed, the written and signed votes of the individual examiners are handed to the vicar general, who, in the absence of the bishop, was president and director of the ecclesiastical council. But he, not doubting the suitability of the priest, at once sent him as the cooperator of some parish priest, so that, with the next feast approaching, he might receive confessions. But afterward, when the votes of the examiners were opened in the next session of the council, Candidus was found wanting, or rejected by the examiners. Wherefore, immediately recalled, until he should make greater progress in moral doctrine, he was suspended from the office of hearing confessions.

It is asked: 1.º Whether Candidus validly absolved the penitents? - 2.º What if he himself knew his defect of doctrine, or even knew well that he had failed in the examination? - 3.º What if, after suspension, he still absolved several persons? - 4.º Whether the faithful, once the error is discovered, are bound to repeat with another the confessions made to Candidus?

R. To the 1st. Candidus validly absolved before he was prohibited from hearing confessions. The reason is, 1.º because he was simply approved by the superior, although the latter approved from error; 2.º because where common error intervenes with a colored title, the Church certainly supplies the defect of approval, as theologians commonly say. But in our Case such common error intervened with a colored title, namely with the title of jurisdiction conferred by the superior. Therefore, etc.

To the 2nd. In this hypothesis, he would indeed have sinned gravely by undertaking so great an office, although he knew himself incapable; nevertheless the confessions would always have been valid, because the approval of the superior and the common error of the faithful with a colored title would subsist in the same way.

To the 3rd. Even in this Case Candidus would have validly absolved if the suspension had not become known to the people, because common error would still have persevered, although the colored title had failed; for common error, even without a colored title, more probably brings it about that the Church, as pious mother, wishes to supply, lest many perish. Lig. 572.

To the 4th. Absolutely negatively. The reason is that, from what has been said, those confessions were valid, from the fact that the Church supplied jurisdiction, common error standing. But confessions once valid are never necessarily to be repeated. For the circumstance of an error discovered afterward cannot bring it about that what previously was valid becomes invalid. Therefore, etc. Elbel 320; Lig. 572." Thus Fr. Gury 542-544.

But in the response to the 1st, to the 2nd, and to the 4th, common error seems to be brought into the matter in vain, since the approval of the superior certainly was present in the Case, and with the approval jurisdiction was conferred. I. M. 755, 756.

Ugolinus, a parish priest, hears a confession outside the diocese, without any approval of the Ordinary of the place, of Sempronius his parishioner and of Nemesius his fellow diocesan. He absolves the former from sins reserved in his own diocese and from sins reserved in the place of confession; but the latter he absolves only from venial sins.

It is asked: What is to be said to the Case?

R. Ugolinus, existing outside the diocese, indeed acts rightly in hearing the confession of his own parishioner, but by no means in hearing the confession of his fellow diocesan. For to hear the former confession he does not need the approval of the Ordinary of the place; but for the latter he needs the aforesaid approval, as is openly drawn from Trent, sess. 23, c. 15, de R. Hence he also rightly absolved his own parishioner from sins reserved in the place of confession, but by no means from those reserved in his own diocese. For he absolves his own parishioner only with jurisdiction which he has restricted by reservation by his own Ordinary. D'Annib., p. 1, n. 78. But a fellow diocesan, not his own parishioner, he would indeed absolve illicitly and invalidly from grave sins without the approval of the bishop of the place. But since he absolved him only from venial sins, certainly illicitly; whether, however, also invalidly, is not certain. Cf. I. M. 757.

Habitual care exists with the chapter of the cathedral church of the city NN. Hence the archpriest each month designates a canon who for the month exercises the parochial duties. The canons indeed perform this, after receiving the mandate of the archpriest, although they have never sought and obtained the approval of the Ordinary of the place. Indeed, even after the month of exercise of parochial care has been completed, the individual canons continue to hear confessions, without any approval of the Ordinary of the place.

It is asked: What is to be said to the Case?

R. The canons of the cathedral church, if this is a church with cure, and habitual care of souls is in the hands of the chapter, need the approval of the bishop, even with a previous examination if the Ordinary has so judged, for hearing confessions, whether when, in their own time, having been designated they exercise the care of souls, or when they hear confessions outside the aforesaid time. This is established from the Response of the Sacred Congregation of the Council, April 1, 1876, A. S. S., vol. 9, p. 550, and is openly drawn from Trent, sess. 23, c. 15, de R. For the aforesaid canons have neither ordinary nor delegated jurisdiction: not ordinary, which is communicated by force of office, because they do not have the parochial benefice; not delegated, because it is certain that they have not obtained approval from the Ordinary. When the canons actually exercise the care of souls, in their month, by mandate of the archpriest, they do not then become parish priests, but are only temporary vicars, removable at the nod of the chapter itself or of the archpriest. But common error standing, the penitents whose confessions the canons have hitherto heard are not to be disturbed. I. M. 757-766.

"The Bishop of Ostia, for example, is present at Rome, where there are also some citizens of Ostia, who beyond doubt can confess at Rome to confessors approved by the Roman Vicar. But nevertheless they would wish to confess to another Roman priest, who is not approved by the Roman Ordinary, and therefore they ask from the Bishop of Ostia that he approve him for hearing his subjects. Yet I said that this cannot be done, disp. 21, De Poenitentia, n. 37, where I conceded that to this effect an Ostian priest present there, who is still a subject of the same bishop, can be approved at Rome by the Bishop of Ostia; but that a Roman priest staying at Rome, who is not a subject of the Bishop of Ostia, cannot be approved. But on this occasion it was asked of me why I denied this, since otherwise the approval of a confessor is an act of voluntary jurisdiction, and therefore can be exercised by a bishop outside his own diocese. Wherefore, just as the Bishop of Ostia can approve a Roman priest existing at Ostia, so that he may hear confessions at Ostia, so it seems he can approve the same priest existing at Rome, so that he may hear the confessions of Ostian citizens at Rome.

Yet I answered that this cannot be done, as I had proved in the place cited; which can again be proved from the declaration of the Congregation of the Tridentine Council adduced in that place, by which the Most Eminent Fathers said that the bishop himself, staying in another diocese, cannot confess to an outside priest not approved by the Ordinary of that place in which the confession is made. If therefore the bishop himself cannot choose for himself a confessor not approved by the Ordinary of the place in which he is, much less will he be able to assign him to his subjects. For if he could approve a Roman priest at Rome for hearing the confessions of Ostians at Rome, surely the Bishop of Ostia himself could confess to the same, since he himself is no less Ostian than his subjects; wherefore if he himself cannot, neither will the Ostian citizens be able to confess to that priest.

But the reason a priori from the things said in the cited place is this: because a confessor from the decree of Trent must be approved by his own Ordinary; but in the proposed Case the Roman priest existing at Rome would not be approved by his own Ordinary. For the Bishop of Ostia is not the Ordinary of the Roman priest, nor can he punish him, even if at Rome he should offend concerning the hearing of confessions of Ostians; but he will be able to be punished only by the Roman Ordinary. The Bishop of Ostia could indeed punish an Ostian priest staying at Rome, as Gonzalez wills, on rule 8 of the Chancery, gloss. 62, n. 11, and Barbosa, De Officio et potestate episcopi, alleg. 6, n. 17; he could also punish a Roman priest staying at Ostia, and there approved, if there he should offend concerning confessions; and therefore whether an Ostian priest stays at Rome, or a Roman priest is at Ostia, the Bishop of Ostia can be said to be the Ordinary of each, since he can punish each, and therefore each will be called approved by his own Ordinary if he is approved by the Bishop of Ostia. Yet he is not the Ordinary of a Roman priest staying at Rome, because superior and subject are correlatives, and that Roman priest existing at Rome cannot be considered the subject of the Bishop of Ostia, by whom he can in no way be coerced and punished." Lugo, Resp. Mor., l. 1, d. 17.

But it does not seem that the Bishop of Ostia, in the Case, can approve an Ostian priest at Rome. For the Council of Trent in reality does not say that a confessor must be approved by his own Ordinary, but says generally that no one can hear confessions unless either he has a parochial benefice, or is judged suitable by the bishops and obtains approval. Hence among theologians it has been disputed whether approval is to be given by the Ordinary of the priest, because jurisdiction cannot be given except to a subject; or by the Ordinary of the penitent, because it cannot be exercised except over subjects; or by the Ordinary of the place, because jurisdiction is exercised in one's own territory. The first is foreign to law and to practice. For bishops allow simple priests, travelers, and guests to hear confessions in their own dioceses. The second was formerly more common from the ancient discipline, by which permission was given to depart, and tacitly permission also to receive the sacraments from outside priests. The third, according to the law now in force, must altogether be held. Innocent XII, Const. Cum sicut, April 10, 1700; Benedict XIV, Const. Apostolica, Const. Benedictus Deus. And it is so far from the truth that travelers today are absolved only by tacit delegation of their own Ordinary, that when a certain bishop, and later the Synod of Middelburg, had forbidden them to confess at Easter except to their own parish priest or with his permission, the Sacred Congregation of the Council, April 5, 1584, judged that its decrees were in no way to be observed. Cf. Benedict XIV, De Syn., l. 11, c. 14, n. 6. And the Sacred Congregation de Propaganda Fide, September 17, 1792, Collect. n. 628, decreed: "the obligation imposed on parishioners of sacramentally confessing themselves to their own parish priest, or to another priest, yet with his permission, at Easter time, cannot be tolerated." Likewise, when at present to someone is granted the faculty of choosing for himself a confessor from those approved by the Ordinary, the absolution is void unless the confessor is from those approved by the Ordinary of the place. I. M. 759.

129. Jurisdiction of the Confessor

"Laelius, a vicar, notices on Holy Saturday that the time for which he had been approved has elapsed. Therefore he sends a messenger to the vicar general, to whom he was very well known and familiar, for the sake of asking an extension of the approval. But, being persuaded that the grace asked would certainly be granted to him, as in fact it was granted, he receives confessions several hours before the return of the messenger.

It is asked: Whether Laelius acted validly and licitly?

R. Laelius indeed validly absolved, although destitute of jurisdiction, common error standing; but he sinned gravely by hearing confessions without the due faculty, and by compelling the Church to supply, because it is not licit to absolve from merely presumed jurisdiction. Besides, it could happen that the superior, for some unknown cause, was going to deny the faculty asked, or that he was absent, etc." Thus Fr. Gury 548.

Speaking practically, it is indeed not licit to absolve from merely presumed jurisdiction, because the sacrament is exposed to the danger of nullity if in reality jurisdiction is not granted for any cause whatever. But if, as in the Case, jurisdiction is truly granted, and was granted when someone begins to hear confessions, is the absolution given with such jurisdiction, reasonably presumed, invalid? Presumed, namely, concerning the present, and not concerning the future, or interpretatively, with the truth on the part of the thing corresponding to the presumption. Moreover the absolution seems valid; for although certain knowledge a posteriori of the granted jurisdiction is not yet had, jurisdiction is nevertheless had, since, absolutely speaking, for having jurisdiction knowledge of it is not required, since its whole effect depends on the will of the superior constituting subjects. And thus, although a simple confessor believes that he lacks jurisdiction even in the article of death, yet if, when the case occurs, he truly wishes to absolve, he validly absolves. Likewise, "if the parish priest, Sempronius asking, allows an outside priest to be present at a marriage, and he, ignorant both of the petition and of the concession, assists, one must stand for the value of the act." D'Annib., p. 1, n. 225; Laymann, De Legib., c. 23, n. 10; I. M. vol. 1, n. 249; vol. 2, n. 760.

Cardinal De Lugo, treating the question of presumed jurisdiction, d. 19, n. 23, says: "If the presumed will is a will indeed existing in the superior, but not sufficiently explained, a distinction must be made. For if it is merely internal, and disclosed by no external sign, it effects nothing; both because jurisdiction is not given in a human way except by human signs, and also because this sacrament must be a sensible sign, in which, just as the form must be sensible, so also must the power of the minister be. But it is not sensible if it is founded only on the internal will of the superior, manifested by no sensible sign. But if that presumed will is manifested by some external sign, although not altogether explicit, then it will suffice for the value of absolution. But what those signs ought to be depends on the circumstances and the judgment of a prudent man. Suarez adds, d. 26, s. 1, n. 17, that even if such signs make a probable estimation concerning the present consent of the one delegating, such jurisdiction is not to be used unless there is no opportunity of knowing the will of the superior more clearly and expressly, and from another source there is sufficient cause for administering the sacrament. Yet this is opposed to the common opinion, which Suarez himself defends, d. 26, s. 6, that it is licit to administer this sacrament with probable jurisdiction and power." The signs, not altogether explicit, of which Lugo and Suarez treat, are present signs and manifest actually to the confessor. Wherefore in reality there does not seem to be question of jurisdiction sought by letter. But since that knowledge of the jurisdiction granted is not necessary at most except for the acceptance of the same jurisdiction, and the acceptance is sufficiently understood through the very petition and letter sent by the confessor, it does not seem that for this reason the act is to be held invalid.

Indeed Gousset 478 says: "To absolve validly, it is not enough to be sure that the bishop would give faculties if he were asked; for it is one thing that a bishop would grant, another thing that he actually grants, jurisdiction. A simple presumption does not suffice; but if there is reason to believe that the bishop actually grants faculties for this or that present circumstance, the absolution is valid."

And the same seems to be said if there is question not of jurisdiction sought by letter, but of jurisdiction sought through a messenger. And thus Schmalzgrueber, l. 4, tit. 3, n. 206, says: "A marriage celebrated before a priest of this sort is valid, even if he does not yet know that permission has been granted to him, but gathers this only from conjecture of the time. The reason is that then the permission given is considered accepted by this very fact, that he to whom it was given, or another in his name and with his knowledge, sought it. From this it follows that a marriage is validly celebrated before a priest at that time in which the messenger, bearing the letters of concession of the permission sought by him, is still on the way, even though the priest himself is ignorant that it has been granted to him. I said, validly celebrated; for before knowledge of the permission granted to him, he will illicitly assist at the marriage, because by thus assisting he exposes the sacrament of marriage, contracted before him, to the danger of nullity."

And the same is to be said much more if jurisdiction is sought not through a simple messenger, but through a procurator, and he has not yet returned and communicated the knowledge to the mandator. The reason is that, since the procurator bears the person of the mandator, the matter is the same as if it had been transacted among those present. D'Annib., p. 1, n. 224; Sanchez, l. 3, d. 36, n. 6, 8; Reiffenstuel, l. 5, t. 33, n. 41 seqq.; Tamburini, tr. De Casib. reserv., c. 9, § 1, n. 10, 21; Bertagna, De Casuum reservat., p. 153 seqq.

"Casimirus the confessor, while he is earnestly occupied in receiving confessions, began to doubt whether the time of jurisdiction granted to him had already expired or not. But he cannot resolve the doubt, because he has lost the episcopal letters. Nevertheless, without doubt he continues to hear confessions and absolve, relying on this principle: In doubtful or probable jurisdiction, the Church certainly supplies. But afterward, moved by scruple, he resolved to abstain from confessions until he should obtain renewal of the faculty. Meanwhile, however, being earnestly asked, he still absolves several penitents, namely a parish priest about to celebrate on a feast day and agitated by anxiety; a woman laboring in difficult childbirth and abhorring the parish priest; a man whose confession he had already begun, and who could not persevere longer in the state of mortal sin without the greatest trouble; and others like these.

It is asked: What is to be said about the manner of acting of Casimirus?

R. Casimirus acted badly in the first Case by absolving with jurisdiction doubtfully present practically or negatively, when no necessity or grave cause was urging. For it is not true that the Church certainly supplies in doubtful jurisdiction, grave cause being excluded, since this is commonly denied by theologians. Nevertheless he validly absolved, because in such a Case the Church supplies jurisdiction at least on account of common error. He could also licitly absolve if, with conscience formed, he probably thought that he was not destitute of jurisdiction. But he acted validly and licitly by absolving in the later Cases, because a grave cause of absolving was urging, and therefore the Church was deservedly considered to supply jurisdiction. Thus St. Liguori teaches, 573." Thus Fr. Gury 550.

In the first Case Fr. Gury seems implicitly to assert that the Church probably supplies jurisdiction when jurisdiction is negatively doubtful; but that it certainly supplies when jurisdiction is positively doubtful; and he openly asserts that it supplies it in the later cases of necessity, when jurisdiction is doubtful, concluding that St. Alphonsus 573 so teaches. But in this place the holy Doctor does not speak of jurisdiction truly doubtful, but probable, which is quite different. The Church indeed supplies jurisdiction in a twofold case: 1.º when common error underlies, on account of the common good, Lig. 572; 2.º when a probable opinion underlies in a doubt of law, on account of the same common good, Lig. 573; Suarez d. 26, s. 6, n. 7; Lugo d. 19, n. 29; not likewise in a doubt of fact, for example, if one to whom it was entrusted at the choice of the will of the person himself, or for a certain time, doubts lest perhaps the one who entrusted it has died, or lest the definite time has passed. Yet it is licit also in this negative doubt of fact to give absolution if "by absolution being denied notable detriment would threaten the soul of the penitent," Lig. 431, or if the doubt arises "after the penitent has begun to confess his sins, because to him the right of obtaining absolution has already been acquired." D'Annib. 321. But in each Case the absolution must be given under condition, because of reverence for the sacrament; and the penitent, if he confessed mortal sins, should be warned about it, so that, if afterward perhaps it becomes known that the confessor really lacked jurisdiction, the penitent may again confess those sins as he ought, and duly provide for his salvation. Lig. 432, 571.

But if there is question of a doubt of fact and of a negative doubt, Busembaum in St. Alphonsus, and St. Alphonsus, n. 571, openly admit the doctrine set forth above in the preceding paragraph. But if again there is question of a doubt of fact and of a positive doubt, Busembaum in St. Alphonsus, n. 571, holds that in that case the Church supplies jurisdiction. "But if," he says, "from a probable reason he resolves the doubt, namely that he has jurisdiction, although with fear of the opposite, he absolves absolutely and licitly; both because then he is practically and morally certain, and because in that case the Pope gives faculty." St. Alphonsus himself seems implicitly to hold the same in the cited n. 571, and seems openly to hand on the same in n. 573, but with the limitation of necessity or utility. There the holy Doctor indeed treats the general question: "Whether it is licit to administer the sacrament of penance with only probable jurisdiction." He brings forward various opinions, and then himself embraces the opinion which says that "it is indeed licit to minister this sacrament of penance with probable jurisdiction, but only when there is present a grave cause of necessity, or of great utility, or a reasonable cause." But although the holy Doctor speaks thus generally about probable jurisdiction, nevertheless he seems to have had in mind rather probability of fact than of law, from the examples then brought forward. For immediately he adds: "A cause of this sort occurs: 1.º when the penitent needs the help or counsel of that confessor. 2.º If the accomplice of the sin of the penitent is known to the confessor who possesses certain jurisdiction, and unknown to the confessor having only probable jurisdiction. 3.º If the confessor who has probable jurisdiction prudently fears that the penitent will not make an integral confession before him who has certain jurisdiction. 4.º Sporer adds: lest the penitent fall into some aversion or harmful suspicion toward the certain confessor. 5.º If the precept of confession is urging, or some singular indulgence is to be gained, or because someone will not be able to confess for a long time."

D'Annibale, p. 1, n. 80, speaking generally about jurisdiction, says: "It is supplied in a doubtful matter, provided the doubt is not merely negative, but positive and truly probable. Not negative, for example, if I doubt, still more if I am ignorant, whether jurisdiction has been entrusted to me; but positive, or of law, suppose whether the Church supplies jurisdiction with common error alone...; or of fact, otherwise than I once thought, as if jurisdiction was entrusted to me for a certain time... whether the time has passed. The reason is that thus it has been introduced by custom, and that jurisdiction can be acquired by custom is of settled law." But, notwithstanding the asserted custom, concerning which there is no certainty, D'Annibale himself excludes doubt of fact on the same p. 1, n. 342; and p. 3, n. 321, published however after the death of the eminent Cardinal, absolutely affirms that the Church supplies jurisdiction when there is a probable opinion in a doubt of law, but by no means in a doubt of fact. And indeed, as Suarez argues, d. 26, s. 1, n. 7, in a doubt of law, or of a common question of law, "the ignorance which arises from the probable opinion of doctors is common and public, and could harm the common people if in the matter itself ministers lacked jurisdiction. And therefore it is not licit to argue to private ignorances or errors which can intervene in particular facts, because it does not pertain to good governance that provision be made for all these, which could not be done without other greater inconveniences; but to provide for common and public necessity is very fitting and necessary." I. M. 770, 771.

Leonardus, a priest approved in the diocese, absolved many penitents, even at Easter time, against the will of the parish priests. He also continues to do this after the bishop prohibited the faithful, at Easter time, from confessing to anyone outside the parish without permission of the parish priest.

It is asked: Whether Leonardus absolved validly against the will of the parish priests? Whether against the will of the bishop of the diocese?

R. "1.º Leonardus validly absolved, against the will of the parish priests, even at Easter time, because, from the common interpretation, one's own priest to whom the faithful must confess once in the year is understood to be any approved priest. 2.º He could not validly absolve at Easter time if the bishop decreed that parishioners should confess to parish priests alone, because the bishop can validly restrict jurisdiction." Thus Gury 540. But a statute of this sort would first be contrary to common practice and custom. Besides, it has already been prohibited by several Decrees of the Sacred Congregations, and by them it has been declared that it cannot be tolerated. Cf. Enchir. Mor., 3rd ed., n. 778, 782.

"The Holy See has always held the maxim that the liberty of Christians must not be bound in any way in so delicate a matter as sacramental confession, and it has always willed that it be licit for each one to manifest his faults to that one among the approved sacred ministers who was more pleasing to him. Nor has it equally ever prohibited an approved confessor from hearing in his own church the confession of any Catholic whatsoever who presented himself at the sacred tribunal. Thus it is not prohibited for Christians of one diocese to pass into another in order to confess there. Moreover, although for the fulfillment of the Easter precept every Christian must make his Communion in his own parish, nevertheless he has no obligation of confessing on such an occasion to his own parish priest. This has always been, and is, the maxim, the practice held by the Holy See. Nor has any distinction of rite ever been made, since the administration of such a sacrament brings with it no change of rite; indeed the same Holy See, whenever any doubt has been raised on such a particular point, has declared that no limitation of this kind ought to be made in such a matter. Hence in 1626, on June 5, it severely forbade certain Latin bishops to prevent their subjects from confessing to Ruthenian priests and vice versa." S. C. de P. F., June 2, 1835, Collectan. n. 929, 932.

Finally, as is drawn from the Declaration of the Sacred Congregation, April 5, 1584, and from the Constitution Superna of Clement X, §§ 4, 5, that restriction of jurisdiction of all confessors, even those already indefinitely approved after previous examination, for Easter time would be invalid, and therefore they would absolve validly. Cf. Enchir. Moral. 782; I. M. 776-778.

"Antoninus, a parish priest, is accustomed once a year, Hydulphus his vicar accompanying him, to go with not a few parishioners on a pious pilgrimage beyond the borders of the diocese. When they had arrived at the pious sanctuary, both he himself and his assistant earnestly devote themselves to hearing the confessions of their own. They also receive and absolve some other pilgrims approaching their tribunal.

It is asked: 1.º Whether Antoninus, the parish priest, validly absolved his parishioners outside the parish, or even outside the diocese? - 2.º Whether his vicar absolved his own penitents? - 3.º Whether each absolved other outsiders?

R. 1.º Antoninus, the parish priest, validly absolved his parishioners outside the parish and even outside the diocese, without delegation of the bishop of the place, because the parish priest enjoys ordinary jurisdiction, and therefore personal jurisdiction over his own subjects, and can absolve them in every place.

2.º Hydulphus, the vicar, could not absolve his own penitents, as being destitute of due approval or of personal jurisdiction. For the jurisdiction of a vicar is only delegated, and therefore merely local. Yet, common error standing, in reality he did not absolve invalidly.

…and 45 more passages — all of them are listed on the topic page.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 51 passages

Vol. II, Treatise On the Sacrament …, Pt. III, Ch. I, Article II. On Jurisdiction

Jurisdiction, taken generally, is a certain moral power of governing subjects. Ecclesiastical jurisdiction is twofold: one kind is in the external forum, and is the power of making laws, inflicting punishments, etc.; the other is in the internal forum, and is the power of absolving or binding in the tribunal of Penance.

We shall treat chiefly of the latter. It is also twofold, namely: 1. ordinary, which belongs to someone by reason of an office having the care of souls annexed to it; 2. delegated, which is given to another by one having ordinary jurisdiction.

n. 545.

Principles. - I. The power of jurisdiction is necessary for hearing confessions, nor does the power of Order suffice. The reason is that absolution is a judicial sentence which cannot be rendered except upon subjects. Subjects must therefore be assigned to the Confessor; but this pertains to him who has authority over those subjects. Moreover, this is altogether required for the right governance of the Church. For there would be the greatest inconvenience if the faculty of absolving were independent of those to whom it was said by Christ: Whatever you shall bind shall be bound...; whatever you shall loose shall be loosed. But it is established especially from the Council of Trent, sess. 14, ch. 7: Since, therefore, the nature and character of a judgment demand that sentence be rendered upon subjects alone, it has always been held as certain in the Church of God, and this Synod confirms as most true, that the absolution which a Priest pronounces upon one over whom he has neither ordinary nor subdelegated jurisdiction ought to be of no moment.

- II. Ordinary jurisdiction belongs: 1. to the Pope for the whole Church in each forum, for to him it was said by Christ in the person of Peter, Matt. 16:19: I will give you the keys of the kingdom of heaven. And whatever you shall bind upon earth shall be bound also in heaven; and whatever you shall loose upon earth shall be loosed also in heaven; 2. to the Bishop for his diocese, likewise in each forum, since it is committed to him so that he may rule and direct it; 3. to Pastors for their subjects in the internal forum; 4. to Abbots and Prelates of Regulars for their subjects.

III. Ordinary jurisdiction can be delegated, or exercised through another. The reason is that delegation is an act proper to ordinary power. Jurisdiction for hearing confessions, however, cannot be delegated except to a Priest approved by the Bishop, as is established from the things said above concerning approval. With regard to Pastors, the faculty of delegating has become almost useless, since Bishops, to whom it pertains to approve confessors, are accustomed to confer jurisdiction together with approval upon secular Priests, as was said in the note at no. 529.

IV. Delegated jurisdiction is granted by the Church to every Priest in a case of extreme necessity, or at the point of death ¹. It is established from the Council of Trent, sess. 14, ch. 7.

¹ This rule is somewhat stricter if the Author wishes to indicate when jurisdiction is delegated by the Church. See Question 2 below, where mention occurs of jurisdiction delegated apart from extreme necessity or the point of death.

V. Delegated jurisdiction for hearing confessions expires through revocation made by the Superior or through the lapse of the time fixed; likewise by the death of the one delegating or his cessation from office, if it was given for some particular person and judgment has not yet begun, or even if it was given generally but with the clause at the discretion of the grantor, at our pleasure, or another similar clause. - St. Liguori, nos. 558, 559; Scavini.

n. 547.

Questions. - QUESTION 1. Can delegated jurisdiction be subdelegated?

n. 547.

Reply. Generally speaking, negative, namely, unless there is added a special grant of the one delegating; and then it is considered to be subdelegated in the name of the one delegating. The reason is that the delegate has only that power which is granted to him; but only the power of exercising jurisdiction is granted to him, not of committing it to another, unless something else is expressed. Therefore, etc. Except if someone is substituted in the place of an ordinary Pastor with universal delegation, for example, in place of a deceased Pastor; or if someone is delegated for the whole class of causes. - St. Lig., no. 566, and others commonly.

- QUESTION 2. Does the Church supply jurisdiction when penitents invincibly do not know of its defect?

Reply. It must first be observed that a defect of jurisdiction can occur in diverse circumstances. For an error can be either common among the faithful or private to some person alone. Again, a Priest lacking jurisdiction can have a colored title, or only a presumed title. A colored title is a title indeed false in itself, but truly conferred by a Superior, and therefore bearing the appearance of a true title, although from some cause it labors under a hidden defect of nullity. Thus a Priest who is simoniacally appointed Pastor obtains an invalid title from Canon law; and if he was constituted in the parish by a legitimate Bishop ², he has a colored title. A merely presumed title, however, is one which is believed by the faithful to be present, although it does not exist. These things being established:

² It could happen that a merely colored title was possessed in the Bishop who institutes the pastor, for example, if he had occupied the see with a hidden vice of simony. To this pertains the third case in Statuimus 107, cause 1, q. 1, namely, that of one who is ordained non-simoniacally by a simoniac.

I say 1. The Church certainly supplies if the error is common among the faithful and is at the same time joined with a colored title. The reason is drawn from the common interpretation of the Theologians, resting upon diverse passages of law. For, as they say, the Church, as a pious mother, is deservedly considered to supply jurisdiction for the good of souls when she can do so ³. - St. Lig., no. 572.

³ This holds equally whether someone has ordinary or delegated jurisdiction. It holds, moreover, even if the Confessor knows that he does not have jurisdiction, for example, one who knows that the time of his approval has elapsed, or that by force of a sentence secretly intimated to him he has been suspended from hearing confessions.

I say 2. More probably, the Church also supplies if there is common error without a colored title, but with only a presumed or factual title. For the same reason presses as in the preceding case, since in this hypothesis also innumerable souls could perish. - Thus Suarez, Lugo, Lessius, Billuart, Bonacina, Diana, Henriquez, Pontius, etc.; and St. Lig., Viva, Elbel, Sporer, Roncaglia, Gobat, Holzmann, Herinx, Cardenas, Gousset, etc., consider this probable. Certain others contradict it, however, for example, Busembaum, Navarre, Sylvester, Cajetan, Ugolino, Covarruvias, etc.

I say 3. The Church is not considered to supply jurisdiction if the error is private, for example, if it is that of one or a few. The reason is that the Church is not considered to supply except by reason of the common good, namely, after the manner of a general provider or governor who attends only to the general good of society and leaves the good of private persons to the care of particular providers. - Thus the Theologians most commonly against a few.

- QUESTION 3. Is it lawful to absolve with doubtful jurisdiction?

Reply. Negative, unless some necessity urges. St. Alphonsus, no. 571, thinks that a necessity of this kind is present: 1. if the precept of annual confession urges; 2. if the penitent must celebrate Mass or receive Communion and otherwise would incur a mark of infamy; 3. if the priest is bound to celebrate from obligation.

QUESTION 4. Is it lawful to absolve with probable jurisdiction?

Reply. With St. Alphonsus, bk. 6, no. 573: The common opinion ⁴ teaches that it is lawful to absolve with probable jurisdiction, provided the opinion is truly probable, supported by grave reason and authority. Thus Sanchez, Lugo, who considers it most safe, etc.; and Sanchez, Tamburini, Cardenas, Dicastillo, Illsung, Gormaz, Stoz, etc., cited by Croix, bk. 6, part 1, no. 117, call it morally certain.

⁴ Of the three opinions which St. Alphonsus (loc. cit.) reviews concerning this matter, he places this one second. The first, which he attributes to Concina, Antoine, and Elizalde, denies that it is lawful, because from proposition 1 condemned by Innocent XI it is not lawful in the administration of the Sacraments to use a probable opinion, lest the sacrament be exposed to the danger of frustration. He wholly rejects this opinion (ibid.), however, and observes with Viva, Wigandt, and Gonet that the Proposition speaks of opinions concerning those things in which the Church can do nothing..., but not concerning jurisdiction, which can well be supplied by the Church; and it is presumed with moral certitude to be supplied in this case for the good of souls. To this pertain those words of Croix (bk. 6, part 1, no. 117): Whenever there is a probable opinion for jurisdiction..., it is the most common opinion with Suarez, Koninck, Filliuccius, Reginald, Lessius, Bonacina, Diana, and Aversa that even then the Church supplies..., if perhaps jurisdiction is absent. And Sanchez, Verricelli, Dicastillo, Tamburini, Cardenas, Arsdekin, Sporer, Gormaz, Stoz, and Laurentius say that this is safe in practice or morally certain.

** The VV., who devote no fewer than thirty-two columns (pp. 485-501) to attacking those things which are said here concerning this question, object first (p. 487) against this Note: 1. Concina vigorously maintains that it can by no means be presumed that the Church supplies; 2. the older authors cited by John Sanchez thought that the Church does not supply; 3. certain authors cited by the Salmanticenses deny that it is lawful to absolve if another endowed with certain jurisdiction is present; 4. not a few authors cited by Tamburini deny that the absolution is valid.

Reply. These things attack not the Note but directly the opinion of the holy Doctor Alphonsus; wherefore someone will not easily understand to what, finally, Vindications of the holy Doctor of this kind tend. But to the individual points:

To 1. Reply. Let it pass. If it thus pleases the VV., let them prefer vigorous Concina even to St. Alphonsus; we shall never fail to prefer the holy Doctor to Concina.

To 2. I deny the whole. The question which John Sanchez (disp. 44, no. 10), Garcia cited by Sanchez (De Benef., vol. 1, part 5, ch. 8, nos. 87 and 132), and Guttierez, Zerola, Sorbo, Rodriguez, Veia, Aegidius, and Vasquez cited by Garcia (In III Part., q. 93, art. 3, dub. 4) treat is this: Whether one approved by one Bishop is considered approved for any diocese whatever. Therefore, these things do not pertain to the matter. But further: the VV. themselves (loc. cit.) add that Garcia brought forward declarations of the Cardinals in aid of himself, which is most true, namely, concerning that question. For otherwise, how do the VV. not hesitate to reproach the holy Doctor Alphonsus also for handing down as certain this doctrine also, which the Sacred Congregations of Cardinals rejected? And here it must be added that John Sanchez (disp. 44, no. 4) handed down most expressly and without any limitation the doctrine which we propose here.

To 3. These things also are against St. Alphonsus, who, for example, adduces John de Salas for himself, and indeed deservedly, contrary to how the Salmanticenses cite him.

To 4. Do not the VV. see Lugo and Suarez numbered among those not few Authors? And do the things which we have before our eyes agree that we should believe that, according to the opinion of Lugo and Suarez, absolution in the case is to be considered invalid? Let us conclude: this method of plundering citations here and there, without adding whether they are brought forward well or badly, or to what end and in what sense by the Authors, contributes to nothing other than casting darkness over questions; and this certainly is not the office of those who wish to benefit science by their labors.

See the reasons in the same St. Alphonsus, who concludes from them thus: This custom therefore being established as certain, it is certain that it is lawful to administer the sacrament with probable jurisdiction; although he rightly observes that the Confessor, in absolving, would not absolve with only a probable opinion, but with one morally certain, not by direct certitude, but by reflex certitude.

St. Alphonsus proposes thus another opinion which he says that he follows, which, namely, teaches, as he says, that it is indeed lawful to administer this sacrament of penance with probable jurisdiction, but only when there is a cause of grave necessity or great utility, as Elbel ⁵ and Wigandt say, or a reasonable cause, as Suarez ⁶ and Sporer say. The reason for this limitation is that, although the Church in that case can well be considered to supply jurisdiction for the good of souls, nevertheless, when no just cause is present, she is not presumed to will to connive at the mere liberty of priests ⁷.

⁵ Elbel (Conf., XII, no. 311) does not require a cause of grave necessity, but a just and grave cause. He followed, namely, his own Marchant, whom he cites.

⁶ Suarez has nothing of this kind.

*** Here the VV., after filling two columns with texts of Suarez (p. 489), conclude: Since Suarez calls more certain, or at least more probable, the opinion that it is not lawful to administer the sacrament with probable jurisdiction and to expose it to the danger of frustration unless some grave or reasonable cause urges, etc.

Reply. I deny the whole. For Suarez (disp. 26, sect. 6, no. 9) has nothing of this kind, and concludes the disputation concerning this matter thus: Finally, if all these things are joined together, they produce sufficient moral certitude, so that it is therefore lawful to use a probable opinion in the use of this jurisdiction. But he introduces mention of a grave or reasonable cause only when he adds counsel, for he continues: Nevertheless, I would always admonish both ministers and penitents to use the more certain or at least the more probable way, unless some grave or reasonable cause urges. Where, then, is that assertion that the more probable opinion is that it is not lawful unless, etc.?

⁷ St. Alphonsus was the first, as it seems, who distinctly proposed this limitation of the preceding or second opinion, as he himself calls it, as a certain third opinion diverse from the second.

But if the matter is considered theoretically, this opinion, by the very fact that it is regarded as opposed to the second, ought perhaps to appear weaker. For if the preceding opinion, by his own admission, is common, indeed most common, and is held and called most safe and morally certain by Theologians of the first rank, what weight indeed can be given to the opposite opinion, which Marchant, with no one preceding him, introduced (vol. 1, tract 2, tit. 3, q. 4), and which Sporer (De Poenit., no. 718) finally fortified only by the aid of three false citations, namely, those of Francis Bardi, John Sanchez, and George Gobat, with a fourth likewise false citation of Suarez added in St. Alphonsus, who taught nothing of this kind?

And indeed, the weakness of this cause arises and is revealed from that same principle which is the foundation of the former most common opinion, namely, from the custom, in the words of St. Alphonsus, of almost all confessors of absolving with probable jurisdiction. Suarez testifies to this custom thus (De Poenit., disp. 26, sect. 6, no. 6): Nevertheless, it is arduous, and it seems to be CONTRARY EVEN TO THE CUSTOM OF GOD-FEARING MEN, to oblige all men to this, namely, that, if it can be had, a minister having certain and undoubted jurisdiction be chosen.

Cardinal De Lugo also testifies to the same custom thus (De Poenit., disp. 19, no. 34): THE PRACTICE OF PLAINLY ALL CONFESSORS has this, that they embrace probable opinions concerning absolution from censures by virtue of the Bull of the Crusade, a Jubilee, or another faculty; and thus they absolve, not imposing that before death they cause themselves to be absolved again by another who has certain power.... Since, therefore, from this common practice of all there follows a manifest danger for all penitents who, thinking themselves already absolved, no longer take care concerning absolution from that censure and would remain incapable of sacramental absolution, it must be admitted that the Church, on account of this common error, confers jurisdiction for preventing those harms, or certainly that those opinions upon which that danger is founded are not true.

But St. Alphonsus himself (cited no. 573) also has these things concerning a universal custom of this kind: In the Church there is a universal custom of almost all confessors of absolving with probable jurisdiction, as Suarez, Lugo, Cardenas, Arriaga, Diana, Croix, and all the other authors cited for this opinion commonly testify. But the common opinion of the Doctors establishes moral certitude concerning the aforesaid custom.

Moreover, behold the argument which St. Alphonsus himself draws from this (ibid.): This custom therefore being established as certain, it is certain that it is lawful to administer the sacrament with probable jurisdiction, since the custom itself furnishes jurisdiction, as Suarez, Navarre, Barbosa, Cardenas, Quaranta, and Pellizzarius teach; and they prove it from Canon law, etc. Suarez employs the same argument more briefly thus (loc. cit., no. 7): And it is confirmed from the universal custom of the Church, which is a sufficient sign of jurisdiction, as was said above. But it is the universal practice of the Church that priests safely use jurisdiction of this kind, namely, probable jurisdiction, in the administration of this sacrament.

This common and certain doctrine having therefore been established beforehand, whatever Sporer and Elbel, after their Marchant, constructed readily collapses of itself, as though, namely, the Church does not will to grant jurisdiction unless some cause of necessity or utility devised by them compels the use of probable jurisdiction, etc. For from the premises, jurisdiction follows the universal custom. But the universal custom, such as is presented to us by the most common opinion and such as already existed even before Marchant was born (as is evident from the testimony of Lessius, Suarez, Sanchez, etc.), never required that grave cause of necessity or great utility for the licit use of probable jurisdiction. Therefore Sporer and Elbel groundlessly introduced the fear that, if causes of this kind should perhaps be lacking, the sacrament would be exposed to the danger of frustration through defect of jurisdiction, and that consequently the use of probable jurisdiction would for this reason become illicit. But Marchant seems to have been driven astray by confusion between doubtful and probable jurisdiction; nor does he seem sufficiently to have observed that probable jurisdiction requires that a person, not rashly, but prudently, relying upon solid reason, judge that jurisdiction is not lacking to him.

There is added the reason which Suarez (loc. cit.) supplies. It pertains (he says) to the fitting and prudent governance of the Church that she not permit so necessary a Sacrament frequently to be uncertain and doubtful, however much it may exist under a probable opinion. To the same point likewise pertains what Croix has (bk. 6, part 1, no. 119), saying: It is certain that Christ instituted the Sacraments in such a way that He did not will their administration or reception to be morally impossible and odious to the faithful who would administer or receive them. Therefore it is certain that an administration or reception subject to excessive scruples or difficulties is not according to the institution of Christ; therefore, if there is no other way of avoiding such an administration or reception except that someone act according to an opinion that is merely probable, it is lawful to act according to it. And from this there is a twofold argument against that theory of Marchant. For who denies that the most common opinion, which does not require the condition introduced by Marchant, is more than probable? Therefore it pertains to the prudent and fitting governance of the Church (as Suarez says), and the institution of Christ requires (as Croix has it), that it be lawful to act according to it. Again: who does not see that the administration of the sacraments becomes subject to innumerable scruples and difficulties when, lest it be exposed to the danger of frustration, the degree either of necessity or of utility which is required for the use of probable jurisdiction according to this theory must also be weighed? But it pertains to the fitting and prudent governance of the Church that so necessary a sacrament not frequently be uncertain and doubtful; nor does the institution of Christ permit the administration of the sacrament in this way to become odious and subject to scruples and difficulties both for those administering and for those receiving it. Therefore.

And these things indeed, as I have said, if the matter is considered theoretically. For as regards practice, although with St. Alphonsus one might prefer that probable jurisdiction not be used unless some reasonable cause requires it, what George Gobat observes (Theol. Experim., bk. 7, no. 120) is most true, namely, that a cause of this kind is never absent. For probable opinions concerning jurisdiction generally turn upon faculties to absolve granted either by force of privileges, or by the indult of the Bull of the Crusade, or on the occasion of some Jubilee, etc. Hence this case generally occurs when (as the same Gobat says), after you have begun in good faith to hear a penitent, a doubt arises for you concerning one or another sin; and consequently when, unless you use this doctrine, the penitent would be compelled to repeat the confession before another. But, as is known, the burden of confessing the same sins twice has always seemed most grave to the Doctors, so much so that for this reason they excuse one from confession before Holy Communion, or at least from the integrity of confession. Therefore, even if you wish to follow the opinion of these few, a grave cause, indeed one graver than those which St. Alphonsus after Sporer considers reasonable and sufficient, will never be lacking to you.

** Finally, the VV. took it most ill that this third opinion of St. Alphonsus should therefore be called less firm, as though Marchant first introduced it, and indeed contrary to a doctrine which otherwise the holy Doctor himself acknowledges to have been held in the Schools as common, indeed as most common and most safe, and even as morally certain.

Accordingly, 1. they deny (pp. 490-492) that this opinion was first introduced by Marchant. 2. They deny that the citations by which Sporer fortified it are to be regarded as false. 3. They deny that the second opinion is to be regarded as most common, indeed even as common, when Marchant's limitation, and consequently St. Alphonsus's, is excluded. 4. Finally (pp. 494-496), they endeavor to strengthen St. Alphonsus's opinion by the opinions of certain Authors.

Reply to 1. In order to prove that St. Alphonsus's opinion did not first proceed from Marchant, the VV. cite Suarez, Reginald, and Coninck. But these citations conclude nothing. For 1. Suarez merely suggests counsel; he does not assert any necessity. See the preceding Note. 2. The same must be said of Reginald, who (bk. 1, no. 103), citing Suarez, merely intimates with him that it is fitting that one having certain jurisdiction be preferred to one having doubtful or less probable jurisdiction. 3. Coninck, however (De Poenit., disp. 8, nos. 41-44), disputes about jurisdiction that is strictly doubtful; but he does not touch in the least the question concerning jurisdiction which the Church supplies when a Confessor uses probable jurisdiction. And these things are manifest from the fact that at the end (no. 47, note 2) he warns that in the case the sins are to be repeated with a Confessor having certain jurisdiction. Therefore the credit for that new opinion introduced by Marchant must be reserved entirely to Marchant.

Reply to 2. The VV. produce two authors (p. 491) as though rightly cited by Sporer, namely, John Sanchez and Gobat. But 1. what they bring forward from John Sanchez has nothing to do with the matter, as was already shown in the preceding note. 2. Gobat (bk. 7, no. 114) acknowledges that he was led to regard the contrary opinion as probable by the number and weight of the Authors. But most of those authors are, of course, those whom we have already said were produced by John Sanchez (see the preceding Note) for an entirely different question, and therefore irrelevantly here. Therefore. Moreover, Gobat finally concludes (no. 117): Whence it follows that he does not sin in particular who absolves from a case which some, contrary to others, probably judge not to be reserved. Therefore Gobat too is wrongly produced as an adherent of Marchant.

Reply to 3. Cardenas, a contemporary of Marchant, wrote (disp. 2, no. 160): The most common opinion among the Doctors is that the Church supplies a defect of jurisdiction if perhaps that defect occurs while the Confessor uses a truly probable opinion. Therefore that doctrine was already most common before Marchant wrote. Therefore Marchant's opinion departed from a doctrine already most common.

Nor is this enough. Cardenas continues in the same place (no. 165), saying: It is the practice and custom IN THE WHOLE CHURCH that Confessors absolve on the basis of a... probable opinion concerning jurisdiction. To prove this he adduces (no. 166) these words from Suarez: It is THE UNIVERSAL PRACTICE OF THE CHURCH that priests safely use jurisdiction of this kind (probable jurisdiction) in the administration of this Sacrament; then (no. 167) these words from Lugo: This is the practice of all the faithful, and OF THE WHOLE CHURCH; then (no. 168) these words from Arriaga: Since, therefore, it is the custom of THE UNIVERSAL CHURCH safely to use jurisdiction probably presumed, the Church is considered tacitly to approve it; then (no. 169) these words from Diana: It is evident from the common opinion of the Doctors, and Confessors everywhere absolve with a probable opinion; and after he adds the testimony of Bonacina, he finally concludes (no. 171): And in this same manner ALMOST ALL THE THEOLOGIANS commonly speak. Whence thus: the most common doctrine and universal practice of the Church existed before Marchant introduced that opinion of his. Therefore, even apart from Marchant's limitation, that opinion is to be regarded and called altogether most common.

Therefore the more recent opinion of Marchant, and of St. Alphonsus after Marchant, has against it the most common opinion of almost all theologians and the practice of the universal Church.

Reply to 4. That pitiable band of Authors who later followed the footsteps of Marchant and Sporer detracts so much the less from the unanimous consent of the Schools, the more evidently it contradicts itself in giving the reason for that new limitation. Their reason, which St. Alphonsus also adduces (loc. cit.), is this: that the Church is not presumed, when no just cause is present, to will to connive at the mere liberty of priests. These words, according to Holzmann, Marchant, Sporer, Henno, etc., whom St. Alphonsus cites, signify that the Church then does not supply jurisdiction if the Confessor's opinion is false, and consequently that in the case the sacrament is exposed to the danger of frustration. But that general principle, namely, that the Church does not supply jurisdiction lest she connive at the Confessor's liberty, is considered utterly false by those same Authors when (as was observed in the Note with Suarez and Croix) harm to souls would follow from it. Hence Henno (De Poenit., disp. 8, q. 5, concl. 3), to the objection that the Church does not approve what she prohibits, therefore she does not give jurisdiction to him whom she prohibits from absolving, replies: She does not approve it as lawful, I concede; as valid, in favor of one invincibly deceived, I deny. And again: We will that the Church indeed sometimes supply the defect in favor of penitents, but never for the benefit of a putative or probable confessor. And again: Although the confessor knowingly doing this would sin, nevertheless the confession of the penitents would be valid. Hence St. Alphonsus also (bk. 6, no. 272): This reason by no means proves the point; for, granted that the Church denied jurisdiction of this kind to impious priests, it would not thereby be prevented that they... disseminate their errors; and conversely the faithful, on account of the invalidity of their confessions, would be exposed to an evident danger of perdition. Therefore, by the admission of these Authors themselves, it is false that the sacrament is exposed to the danger of frustration through defect of jurisdiction. Otherwise, surely no one would say that a priest sins who in the case follows an opinion which, as is manifest from the foregoing, is most probable, most common, most safe, and morally certain.

And let these things suffice for resolving the doubts of the VV. concerning the central point of the controversy; for to pursue every lesser matter with which the VV. fill those thirty-two columns must be regarded as useless labor and as bringing mere weariness to readers. They object, for example, that Marchant, contrary to what is said in the Note, properly distinguishes probable jurisdiction from doubtful jurisdiction. Reply: I deny the whole. For Marchant (loc. cit., q. 6), under the title of jurisdiction DOUBTFUL IN PRACTICE, treats of a priest who is perplexed in a practical doubt concerning jurisdiction. Hence he gives the example of a scrupulous priest who finds a man situated in danger of death and meanwhile remains doubtful in practice whether he has jurisdiction and can absolve him, and cannot resolve himself toward either side with respect to acting. These things, as is evident, do not pertain to the matter.

What pertains more to the matter is to observe that Marchant and his followers consider the use of probable jurisdiction lawful in nearly the same cases in which they consider lawful the use of jurisdiction that is strictly doubtful. Since among these cases they also mention danger of death, they truly seem then to have forgotten the doctrine of the Council of Trent, according to which any priest can absolve any penitents from any sins and censures. Moreover, the fact that these Authors require nearly the same causes for the licit use of probable and doubtful jurisdiction perhaps indicates that the conditions of this controversy had not been sufficiently perceived by them in every respect.

- QUESTION 5. Does a Vicar General have ordinary jurisdiction, so that he can delegate others to hear confessions?

Reply. The more common and true opinion affirms against a few. The reason is that the Vicar General, although appointed by the Bishop, does not have jurisdiction from the Bishop himself, but from the canon by which he is declared to constitute as it were one person with the Bishop. - St. Lig., no. 558.

QUESTION 6. Can heretics and excommunicated persons who are to be avoided ⁸ validly absolve in danger of death when another Priest is lacking?

⁸ It is proper here to understand also suspended, interdicted, and irregular priests, those degraded, schismatics, notorious heretics, and even apostates from the faith to Mohammedanism, for example, etc.

Reply. Affirmative. The reason is that all Priests can absolve at the point of death, as is established from Trent, sess. 14, ch. 7 ⁹, according to the things said in Principle IV. - See St. Lig., no. 560.

⁹ Thus the Tridentine Synod: It has always been observed in the same Church of God that there is no reservation at the point of death; and therefore all priests can absolve any penitents from any sins and censures.

With regard specifically to excommunicated persons, Cardinal Albitius (De Inconst. in fid., etc., ch. 18, no. 39) relates that a great controversy arose at Rome, some objecting for the negative opinion a Declaration of the Sacred Congregation of the Council which Fagnanus relates (In C. Quoniam, De Constit., no. 28). But although (Albitius says) the books and registers of the decrees of the Congregation of the Holy Council of Trent were sought with the greatest diligence, the said declaration could not be found. It must therefore be said that the aforesaid declaration was not made, or, if it was made, that it was expunged from the aforesaid books as contrary to the common opinion of the Theologians who wrote after the Council. And I know also that in the year 1682, during the Pontificate of our Lord Innocent XI, this opinion was debated in the Sacred Congregation of the Holy Office; and since some of the Cardinals followed the opinion of St. Thomas, it was brought back to the balance. The matter having been reported to the Most Holy Father, His Holiness in his prudence ordered that there be no debate over the said opinion and that it no longer be called into doubt.

St. Alphonsus, in the earlier editions of his Work (see the Bassano edition with the fictitious date Rome, 1757), since he had not yet learned what Albitius related, wrote concerning this matter (bk. 6, no. 560): The second opinion TO BE FOLLOWED denies it, and St. Thomas holds this, etc.; where he also presses the aforesaid Declaration mentioned by Fagnanus. He afterward learned from Collet the things which we have related from Albitius, and added them to the same paragraph together with the decree of Innocent XI; moreover, in the later list of retractations (no. 19) he retracted that former opinion. Nevertheless, he did not delete the word to be followed (through forgetfulness, as is evident). It has been useful to warn of this, lest anyone, reading only the beginning of that paragraph 560, as is the custom of those concerned merely with knowing the Author's opinion, wrongly embrace that opinion as though it were St. Alphonsus's.

The decree of Innocent XI is confirmed by the Constitution Apostolici muneris of Benedict XIV, where, declaring valid the absolution imparted by a Priest to an accomplice in a shameful sin, he draws the reason from the cited decree of the Tridentine Synod; this matter will recur later.

- QUESTION 7. Can a simple Priest absolve not only at the point of death, but also in danger of death?

Reply. Affirmative. The reason is that the necessity of the penitent is almost the same in danger as at the point of death. Moreover, it is established from Canon law that the point and danger of death are taken as the same. - St. Lig.

Danger of this kind is considered present: 1. in a dangerous illness; 2. in time of plague; 3. in a difficult childbirth; 4. in a grave surgical operation; 5. before a very dangerous voyage; 6. in battle, or in other similar circumstances. - St. Lig., no. 561.

QUESTION 8. Can a simple priest absolve a dying person even when an approved Confessor is present? Reply. The Doctors disagree among themselves; and St. Alphonsus (bk. 6, no. 562), after weighing the reasons for each opinion, finally gives his judgment in these words: Nevertheless, notwithstanding these things (namely, the arguments adduced by him for the affirmative opinion), I think that the first opinion (namely, the negative) should not be departed from, on account of the authority of the Roman Ritual (De Sacr. Poenit., near the beginning), where it is thus said: But if danger of death threatens, and an approved (note this) Confessor is lacking, any Priest can absolve from any censures and sins. Simple Priests can therefore absolve if an approved Confessor is lacking; therefore they cannot if an approved Confessor is present. Thus St. Liguori, who otherwise, although he called his own opinion most common, nevertheless expressly cites sixteen Doctors, and others tacitly, for the opposite affirmative opinion; to them nine others can easily be added from Lugo (De Poenit., disp. 18, no. 23), Diana (vol. 5, tract 8, res. 26, no. 3), Barbosa (De Off. et Potest. Ep., part 2, alleg. 25, no. 79), and the Salmanticenses (De Poenit., ch. 11, no. 29) ¹⁰. Moreover, those who follow the affirmative opinion do not deny the probability of the negative; and likewise those who prefer the negative freely concede the probability of the affirmative, either implicitly, when they call their own opinion merely more probable, or even explicitly, as do Lezana and Stephen of St. Paul cited by the Salmanticenses (loc. cit.), and Viva, Sporer, Elbel, and Cardinal De Lugo cited by St. Alphonsus (loc. cit.). Of these the last, that is, Lugo, surely a most weighty author, thus gives his judgment concerning it (De Poenit., disp. 18, no. 23) against Aloysius Turrianus, who had called this opinion improbable: Whence it is established that Luis Turrianus went too far in censuring this opinion by saying that this opinion is improbable.... Certainly it cannot be denied that an opinion held by so many and such weighty Doctors is probable, especially since it is founded upon the words of Trent, which cannot easily be explained by the adversaries ¹¹.

¹⁰ Thus at least twenty-five Doctors can be produced who follow the opposite opinion. This agreement of Doctors proves that the argument sought from the Roman Ritual in this matter is not of invincible strength. For it cannot be supposed that this text was unknown to so many Doctors; yet those who adhered rather to the negative opinion considered the affirmative no less probable on that account. And indeed, although there are several things also in the Roman Ritual which pertain to defined doctrines, nevertheless some things are found concerning which freedom of disputing in the Schools is granted by the Church to the Doctors. Indeed, although Cardinal De Lugo gathered arguments sought from every side by which he might fortify that same negative opinion which he had adopted, he does not mention this reason at all.

** Against these few lines the VV. oppose no fewer than twelve columns (pp. 501-506). But to what end? They contend for two points, namely: 1. that St. Alphonsus rightly and deservedly called most common the opinion which he follows, although at least twenty-five Authors can be cited for the opposite; 2. that the principal argument for the same opinion is very rightly sought by the holy Doctor from the Roman Ritual.

Reply. As regards the first, let it suffice to observe two things briefly. And 1. indeed I truly fear that this manner of disputing by the VV. may perhaps recall to the minds of readers that saying (Deut. 25:13): You shall not have diverse weights in your bag.

And indeed let the reply be recalled here which the VV. made to those objecting that St. Alphonsus had against him the most common opinion of the Doctors when, namely (see above, no. 549, Question 4, with the Notes), he condemns with Marchant the use of probable jurisdiction unless some necessity or grave cause urges. The VV. replied in these words (p. 490): But in truth the opinion that this is lawful (namely, to absolve with probable jurisdiction) indiscriminately, without any necessity or reasonable cause, is by no means common, and much less most common, as will be evident from the following Article. But what, finally, do they bring forward in that Article of such great weight that the opposite opinion cannot be called most common, or even common? Besides Marchant, Sporer, and Elbel cited by St. Alphonsus, they themselves add the names Collet, Gonet, Henno, Holzmann, Billuart, Amort, Cuniliati, and Croix; for it has already been shown (loc. cit.) that Suarez, Reginald, Gobat, Coninck, and John Sanchez are vainly drawn by them to that side. But if that small band of authors could sufficiently enable the VV. to deny that an opinion should be called most common, or even common, which otherwise most weighty Doctors (as we saw loc. cit.) testified to be most common and vigorous in the universal practice of confessors, what reason is there for their now contending that an opinion should be called most common against which not a few, but at least twenty-five Authors stand, and which one author, as it seems, St. Alphonsus, called most common? Would anyone by an altogether less equitable right invoke here the saying: You shall not have diverse weights?

The VV. insist (p. 503) that it must be observed before all else that Doctors are not to be counted arithmetically, but weighed, and that the negative opinion (that of St. Alphonsus) is held and defended by almost all the more illustrious Doctors.

Reply. To say nothing now concerning this very recent canon according to which an opinion is or is not to be regarded as common or most common, will not that saying again recur to the minds of readers: Weight and weight, measure and measure? For did that very small band of Authors, which they themselves opposed to the most common opinion of the Doctors, consist of the more illustrious Doctors, or did they not rather oppose it to an immense company of the more illustrious?

Moreover, to add the second point here, as we said, it was not without cause written in the Note that AT LEAST twenty-five stand for the opposite opinion; for these were collected only from St. Alphonsus, Lugo, etc., and others could easily be added. But to settle the matter more briefly, it will be useful to learn from the testimonies of the Authors what, finally, is the true state of this controversy. Behold Reiffenstuel writing thus (tract 4, dist. 4, no. 33): MANY deny it... nevertheless MANY other Doctors consider the opposite probable. And Stoz (bk. 2, q. 2, no. 52): But MANY of the ancients and VERY MANY of the more recent teach the contrary opinion (from which, namely, St. Alphonsus departs). And Clericatus (De Poenit., decis. 37, no. 28): There are on each side probable opinions because of the reason and the MULTITUDE OF DOCTORS CONTENDING FOR EACH. Do these things leave room for either of those opinions to be called most common?

But now to the second head, namely, the force of the argument which St. Alphonsus takes from the Roman Ritual for his opinion. The VV. indeed (pp. 504-505) are wholly occupied in seeking the reason why no one used this argument, although so many Authors of every age touch upon this question; and they give as the reason that some wrote before the publication of that Ritual by command of Paul V, while others did not see that the same argument had been proposed by anyone.

Reply. It ought indeed to seem grievous to dwell upon these absurdities. First, does not St. Alphonsus urge that the things said in the Ritual concerning the absolution of a dying person had been established according to the approved usage of antiquity? Why, then, do the VV. present those things as unknown to Theologians before the edition published under Paul V? Moreover, does not St. Alphonsus add in the same place another argument taken from the Catechism of the Council of Trent? Will the VV. also grant that this catechism was a monument hidden from the eyes of all theologians? Rather than portray all theologians as though blind, or as strangers in a matter most familiar, let us both judge and acknowledge what the thing itself proclaims: neither did those who preferred the opinion afterward adopted by St. Alphonsus find anything in these monuments which they thought could bring any support to the cause defended by them; nor, again, did those who stood for the opposite opinion perceive in the same monuments any difficulty from which they judged that their own opinion had to be extricated.

Moreover, a fitting reason is not lacking why both the Ritual and the Catechism said that in those circumstances a simple priest can hear a confession and impart absolution if the proper priest or another approved priest is lacking. They indicate, namely, when a simple priest may exercise that ministry not only validly but also without any notoriety or astonishment among the faithful. For who does not know that it is altogether foreign to the custom of the faithful, who are generally ignorant of these matters, that they should employ as confessor one whom they know has not yet been deputed to that ministry? Does not Benedict XIV also excuse from the crime of an accomplice the priest who hears the confession of an accomplice for this reason, that another not yet approved cannot be summoned without astonishment? There was therefore a reason why that circumstance should be indicated, namely, when a simple priest could not be called by others to hear a confession, or present himself, without notoriety and astonishment. This astonishment, indeed, has already begun to cease, after the scarcity of priests has caused pastors who somewhere have no other assistant except one not yet approved not rarely to be accustomed to employ him to assist the sick and consequently to absolve them sacramentally at the opportune time.

To what was said in the Note, that those who hold the negative opinion do not deny the probability of the affirmative, the VV. object (p. 505) that very few among the older authors are found to do so, while the more recent assert it only insofar as a grave cause is present.

Reply. St. Alphonsus also mentions Viva, Sporer, Elbel, and Lugo, whose most lucid words Gury also related in the text: Certainly it cannot be denied that an opinion held by so many and such weighty Authors is probable, especially since it is founded upon the words of Trent, which cannot easily be explained by the adversaries. And in these words indeed you have solid foundations of probability, namely, the grave weight of authority (so many and such weighty Authors) and a firm reason (the words of Trent, which cannot easily be explained by the adversaries). Moreover, are not two others cited by the Salmanticenses, Lezana and Stephen of St. Paul, added to those four? Do not the VV. themselves add (loc. cit.) Palaus and Trullench? Furthermore, Reiffenstuel, Clericatus, and Stoz have been cited above on this same matter. To these can also be added Caspensis (in Mastrius, disp. 21, q. 9, art. 1, no. 204), Babenstuber, who (part 6, disp. 6, art. 1, no. 8) calls it very probable, Giraldi, who (tract 7, ch. 13, no. 18) writes: It cannot be denied to be very probable, Marchant, who (tract 2, tit. 1, q. 3, concl. 5) says: I would not wish to derogate from this opinion so as to deny that it is probable, Catalani, who (part 3, q. 6, ch. 13, no. 8) writes: I do not deny the probability of the affirmative opinion, and Mendo, who (Epit., word Confessio, no. 12) consents to the same. To these add also those who (as the VV. themselves say) call the negative opinion merely more probable. Therefore, lest we inquire further in vain, do not these things suffice so that it can truly be said that even those who prefer the negative opinion do not deny the probability of the opposite?

¹¹ The same Lugo, with regard to the negative opinion which he himself otherwise prefers, observes (loc. cit., no. 25) that the principal foundation for it is taken by some (in fact most of them) from the end of the concession, which was to come to the aid of the necessity of the faithful; this certainly seems to cease when an approved Confessor is present. This reason, however (he continues), in my judgment would not suffice to separate the universality of the words (namely, of the Council of Trent) and the absolute concession which the first opinion (namely, the affirmative) brings forward for itself. For the necessity of the faithful could have moved it to grant the faculty with that whole breadth.

He himself, however, seemed to find a firmer foundation in this, that the Synod had said that this had always been observed in the Church: as though, namely, it had not always been the custom in the Church that, when a Prelate was present, an inferior priest could absolve a dying person from reserved sins. But, with due respect to so great a man, these things seem directly to conflict with the words of the Synod itself, which expressly testifies (sess. 14, ch. 7) that it has always been observed in the same Church of God that THERE IS NO RESERVATION AT THE POINT OF DEATH. But where there is no reservation, the question who has the faculty over reserved sins is plainly superfluous.

It must be observed, moreover, that before the Tridentine Synod the approval of the Ordinary was by no means necessary for hearing confessions. This alone, therefore, was required: that jurisdiction be conferred by the Bishop or Pastor, either directly, when some priest was designated to hear confessions, or indirectly, when the faithful were given the faculty of choosing some priest as Confessor. Hence, since according to the testimony of the Tridentine Synod it had always been observed in the Church of God that at the point of death any priest could absolve any penitents from any sins and censures, the matter comes to this: jurisdiction was considered to be granted to any priest in that case, and consequently the penitent could choose any priest. But, as we have said, no approval of the Ordinary was then necessary, and consequently there could be no distinction between approved and unapproved priests. Therefore the hypothesis is empty by which it is imagined that, from the custom of those times, an approved priest was to have been preferred to an unapproved one at the point of death.

n. 552.

- QUESTION 9. Can a Pastor summon a Pastor of the same or of a different diocese to hear confessions in his parish?

n. 552.

Reply 1. As regards a Pastor of the same diocese, although by force of his office he has special jurisdiction only for his own parish, nevertheless, by an almost universal custom, he can hear confessions throughout the whole diocese also, unless the Bishop decrees otherwise. The proper customs of places, however, must be consulted.

n. 552.

Reply 2. As regards a Pastor of a different diocese, diverse opinions are given, as Benedict XIV says (Instit. 86, no. 7). Those who affirm argue from Trent that a parochial benefice serves for universal approval. Others deny it; their opinion, St. Lig. says (no. 544), receives strength from a Reply of the Sacred Congregation of the Council dated December 31, 1707. - Benedict XIV admits the first opinion in those places where such a custom exists.

n. 553.

- QUESTION 10. Can a Priest approved by the Bishop hear the confessions of the faithful without the permission of the Pastor?

n. 553.

Reply 1. As regards liceity, negative, if confessions are heard in a Church subject to the Pastor. The reason is that due order altogether requires that, since the Pastor is the immediate Superior in his Church, permission to exercise sacred ministries there be sought from him. The Pastor's permission is not required, however, for hearing confessions in a chapel of regulars or nuns; the permission of the local Superior or Superioress suffices. Reply 2. As regards validity, it is certain according to all that the permission of the Pastor is not required outside the case of annual confession. Indeed, it is not required even for annual confession, at least of itself, or by common law. This is established from the common doctrine of the Theologians against certain persons, and also from the present custom and universal practice of the Church, as Benedict XIV testifies, Instit. 18. But if somewhere this custom does not prevail, the confessions are nevertheless to be regarded as valid unless the Bishop expressly contradicts it; for if he is silent, he seems to consent to the universal custom of the Church ¹². - Gousset, no. 478.

¹² John XXII (C. Vas electionis, Extrav. De haereticis) condemned also this article of John of Pouilly, Doctor of Paris: The decree Omnis utriusque sexus remaining in force in a General Council, the Roman Pontiff cannot bring it about that parishioners are not bound to confess all their sins once a year to their proper priest.

Launoy revived the condemned error; and when this opinion, hostile to peace, had begun to infect pastors in France, Clement VIII in the year 1592 issued this decree (in Benedict XIV, Inst. 18, no. 7): We decree that both the said Friars... and the other aforesaid privileged persons to whom this has been granted by the Apostolic See, provided they are fit and approved by the Ordinary, may lawfully confess their sins, even at the Lenten and Paschal seasons and at any other time....

And Clement X (Const. Superna, sect. 4, no. 5) decrees and declares that Regulars once approved can, in the diocese of the approving Bishop, at any time of the year, even the Paschal season, hear the confessions even of any sick persons without any permission of the pastors or the Bishop...; and that those who have confessed to the said simply approved Religious at the Paschal season have satisfied the Constitution which begins Omnis utriusque sexus, with regard to confession alone.

As regards the hypothesis mentioned by the Author, however, of a Bishop contradicting it, there exists in Pignatelli and Pitonius (De Confess., no. 36) a Declaration of the Sacred Congregation dated April 5, 1584, expressed in these words: The decree of a Bishop in which it is stated that no Confessor, even one approved by the Ordinary, may hear the confessions of anyone during the Paschal season without the permission of the proper pastor is in no way to be observed.

- QUESTION 11. Does a delegate validly and licitly absolve after the expiration of the term of a delegation to be renewed annually, for example, if a crowd of penitents should come together for some great solemnity?

Reply 1. Of itself he absolves invalidly, that is, by reason of jurisdiction, because in fact he has none. Nevertheless, more probably he absolves validly by reason of common error, on account of which the Church is considered to supply for the good of souls.

Reply 2. Of itself the Priest sins gravely if he knowingly does this. The reason is that he exercises the office of Confessor without legitimate authority; and although the Church then supplies, he is nevertheless guilty because he improperly compels her to supply.

QUESTION 12. Can a Priest approved in some place hear the confessions of travelers arriving there? Reply 1. Affirmative absolutely as regards Regular Confessors, who have this special privilege from the Holy Apostolic See. - See the Constitution Superna of Clement X ¹³.

¹³ And in the Constitution Inter cunctas of Paul III to the Fathers of the Society of Jesus: Those of you who are priests may hear the confessions of any of Christ's faithful of either sex coming to you from anywhere, etc.; this privilege is established to be common also to the other Mendicant Regulars.

Reply 2. Affirmative also as regards secular Priests. The reason is that such is the custom, having force from the tacit consent of the Ordinaries, which is equivalent to present ratification. - Thus more commonly the Theologians and Canonists. - See St. Lig., no. 569.

n. 555.

- QUESTION 13. Can a Bishop under pain of invalidity prohibit his diocesans from going outside the diocese to confess?

n. 555.

Reply 1. Negative, if they go outside the diocese to confess to Regular Confessors, who have the privilege of hearing the confessions of all the faithful coming from anywhere. - Suarez, De Relig., tract 10, bk. 9, ch. 2, no. 8; Reiffenstuel, tract 14, dist. 8, q. 1, no. 11; Laymann, bk. 5, tract 6, ch. 10.

…and 11 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 7 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On Penance

On the Power of a Vicar Capitular Regarding Confessors; on Approval At Our Pleasure; on Recalling Confessors and Parish Priests for Examination

“As regards the doubt whether a vicar capitular can suspend the faculty of hearing confessions of confessors who were approved by the deceased bishop at pleasure and without a definite term, the Most Eminent Lords commanded me to reply that there is no difficulty as regards secular priests, because, since they depend immediately upon the ordinary jurisdiction of the bishop, to which the chapter succeeds while the see is vacant, the vicar capitular consequently enjoys full power to limit their faculty and even to suspend them from hearing confessions, either because of grave faults pertaining to the Sacrament of Penance or because of a defect of that doctrine, probity, and integrity of life which are required in sacred ministers. The same cannot be said of regular confessors. Indeed, since they were approved after prior examination and without a limit of time, or even at our pleasure, by the deceased bishop, neither the chapter nor the vicar capitular can punish them with the penalty of suspension, even for just reasons, since this is a personal right of the bishop, to which, according to the more common opinion of the Doctors, the chapter does not succeed while the see is vacant. But since grave inconveniences would arise from this defect of power, recourse is to be had to the same Sacred Congregation.” Sacred Congregation of Bishops and Regulars, 19 June 1866.

“The vicar capitular represents that he has discovered that several secular and regular priests obtained from the deceased bishop the faculty of hearing confessions “without any prior examination, and that they are so unskilled that several scandals arise. Therefore, he petitions for the faculty of calling them to examination, approving those whom he finds suitable and prohibiting those who are unsuitable. Hence it is asked: 1. Whether the vicar capitular can do this; and insofar as the response is negative, 2. Whether the requested faculty is to be granted? The Sacred Congregation of the Council responded on 5 February 1688: To the first: Affirmative. To the second: Provided for in the first.” Scavini, book 3, no. 472, Milan, 1874.

“We decree and declare that the successor Archbishop can examine again both secular and regular confessors....” Urban VIII, Brief Cum sicut, 9 October 1626.

Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 2. On Jurisdiction in General · Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 3, Doubtful, and Probable Jurisdiction · Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 4. On the Jurisdiction of Religious and over Religious

The Sacred Congregation of the Council “judged that successor bishops, when a reasonable cause supervenes, can, even ex officio and even outside visitation, examine parish priests approved for parochial churches.” And it says the same of regular parish priests. The Roman Rota decreed that the will and the mere peace of conscience of the bishop is a sufficient cause for a new examination. But if it concerns parish priests already examined by the same bishop, whether he can examine them again, the same Congregation has this: “1. A bishop can examine parish priests and rectors once approved for the care of souls when there is a vehement suspicion of their lack of skill. 2. He can proceed to an examination of this kind outside visitation. 3. To conduct the said examination, it is not necessary that judicial proofs of lack of skill precede.” Scavini, loc. cit.

n. 769.

On Defect of Jurisdiction without a Colorable Title

The Sacred Congregation of the Council, having been asked whether the Capuchins who had heard confessions in the Diocese of Padua without the permission of the bishop of that diocese had absolved validly—because some of them were approved in another diocese, while others had indeed been approved by the Bishop of Padua for one year, but that year had already elapsed—responded: “They heard confessions illicitly and invalidly, but those who confessed in good faith are not to be disturbed. Nevertheless, if those who confessed should learn of this or should doubt the invalidity of the confession, they are bound to repeat the confession.” 11 December 1683; Benedict XIV, Notification 84; Scavini, book 3, no. 479, Milan, 1874. See M. E., vol. 7, part 1, p. 83 ff.

n. 781.

Benefice-Holders as Regards the Choice of a Confessor

“16. Those who have a benefice with the cure of souls can choose for themselves as confessor a simple priest not approved by the Ordinary.” Proposition condemned by Alexander VII.

n. 786.

On Restricting the Faculties of Regular Confessors

“The Sacred Congregation ... judged that the aforesaid regulars of St. Francis, approved by the local Ordinaries to hear the confessions of secular persons, cannot be prohibited by those same Ordinaries from hearing, without the permission of the parish priests, the confessions of those same persons when sick in their own homes, provided that they leave a note or notify the parish priests themselves that the Sacrament of Penance of this kind was administered by them.” Sacred Congregation of Bishops and Regulars, 13 September 1641; 22 September 1645. See nos. 763, 782; Bizzarri, Collection, ed. 1885, p. 753 ff.; A. S. S., vol. 1, p. 678 ff.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 1 passage (filed under the subtopics)

Bucceroni, Moral Enchiridion, On the Sacrament of Penance, Faculties and Privileges o…, 9 March 1870)

n. ¶33.

N. 560. - On the Restriction of Faculties for Regular Confessors

"The S. C.... judged that the aforesaid Regulars, of St. Francis, approved by the Ordinaries of places for hearing the confessions of secular persons, cannot be prohibited by the same Ordinaries from hearing the confessions of the same persons when sick in their own houses without the license of the parish priests; provided that they leave a note, or notify the Parish Priests themselves, that the sacrament of Penance of this kind has been ministered by them." S. C. EE. and RR. 13 Sept. 1641; 22 Sept. 1645. - Cf. N. 543; Bizzarri, Collection, ed. 1885, p. 753 ff.; and Acta S. Sed. Vol. 1, p. 678 ff.

Tanquerey

Adolphe Tanquerey, S.S. — 1 passage

Vol. I, Matrimony, and Holy Orders, On Penance (Volume I), Moral Part — Chapter II: On the Confessor

n. 388.

2° On the Properties of Ordinary Jurisdiction

(A) Those who are endowed with ordinary jurisdiction can validly absolve their own subjects, wherever they may be, even outside their own territory and outside the diocese, without needing the approval of the Bishop of that place where they hear confessions;⁵ the reason is that ordinary jurisdiction is not only local, but also personal, and therefore follows persons wherever they have gone.

⁵ Code, c. 881, § 2.

(B) Ordinaries of places can delegate their jurisdiction to priests, both secular and religious, even exempt religious.

(C) By law pastors enjoy jurisdiction for their own territory only;¹ but by custom, in certain regions,² they validly hear confessions not only in their own parish, but in the whole diocese, yet by delegated right. They cannot, however, do this licitly without the permission of the pastor or chaplain of that place where they receive confessions.

¹ Code, c. 873.

² Thus Lehmk., n. 376, says: "In Germany now for several centuries that custom has prevailed, by force of which pastors are judged approved for the whole diocese." Baller. P., n. 556: "It seems possible to conclude that, where no other custom prevails and the Bishop does not expressly restrict it, the pastor can hear confessions throughout the whole diocese." Therefore in practice let the diocesan Statutes and Letters by which faculties are granted be carefully read.

But whether today they can delegate other priests to hear confessions in their parish we shall consider below (n. 392).

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 8 passages

Vol. III, Bk. II, Tr. V, Chapter II: Who Have Ordinary Sacramental Jurisdiction or Can Delegate It

n. 455.

— Those have ordinary power of hearing confessions:

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°);
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;

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

n. 456.

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

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.

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.

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.

n. 457.

— 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.

n. 458.

— 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.

n. 459.

— 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).

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.

n. 460.

— 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.

n. 461.

— 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.

n. 462.

Summary

— I. Those have ordinary power:

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;
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;
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.

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.

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.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 13 passages

Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 2. On Jurisdiction in General

n. 406.

406. Notion. Jurisdiction in the general sense is the moral power of governing some human society, and it includes the power of teaching, judging, and coercing. But the power of governing the domestic society of the family is not jurisdiction but dominative power, since the father or head of the family in many matters has dominion over the very wills of the members of the household. Ecclesiastical jurisdiction is the power of governing, judging, and coercing baptized men in relation to supernatural holiness and beatitude.

n. 407.

407. Divisions. 1. Jurisdiction of the internal forum and of the external forum. The former orders the internal moral relations of the faithful with God. It is sometimes called jurisdiction in the forum of the pole, or in the individual forum, because God ought to be the pole toward which all human actions must be directed. The other jurisdiction, namely, that of the external forum, which is also called jurisdiction in the forum of the forum or in the social forum, orders the external social relations of the faithful with the Church and is publicly exercised.

The internal forum is taken either in the strict sense, when jurisdiction is exercised in the sacrament of penance alone; it is then called the sacramental forum; or in a broader sense, when jurisdiction is exercised even outside the sacrament of penance, but for the conscience of a private man alone. It is then called jurisdiction in the forum of conscience, or extrasacramental jurisdiction. This distinction must be attended to especially in dispensations, which sometimes cannot be given except in the act of sacramental confession, but at other times can lawfully be granted even outside the sacrament for the forum of conscience.

2. Ordinary and delegated jurisdiction. The former is that which is connected with an ecclesiastical office itself duly obtained.²⁷⁹ Such jurisdiction is possessed by: the Pope in the whole Church, and also the Cardinals of the Holy Roman Church for hearing confessions;²⁸⁰ bishops and their vicars general; the canon penitentiary in the whole diocese; exempt religious superiors for their subjects; pastors for their parishioners, as will be stated more fully below. Those who have ordinary jurisdiction can absolve their subjects everywhere in the world, and therefore even outside their own territory.²⁸¹ The other jurisdiction, namely, delegated jurisdiction, is that which, without an ecclesiastical office, is freely conferred upon some cleric either by law or by a man. Simple confessors have such delegated jurisdiction.

²⁷⁹ Code of Canon Law, c. 197, § 1.

²⁸⁰ Ibid., c. 873, § 1.

²⁸¹ Ibid., c. 861, § 2.

n. 408.

408. Necessity. Jurisdiction is necessary by divine law for valid absolution in the sacrament of penance.

The Council of Trent²⁸² establishes: "Since, therefore, the nature and character of a judgment require that sentence be pronounced only upon subjects, it has always been held as certain in the Church of God, and this Synod confirms it to be most true, that the absolution which a priest pronounces upon one over whom he does not have ordinary or subdelegated jurisdiction ought to be of no force." Since the necessity of jurisdiction follows from the very nature of sacramental judgment, it is evident that it is from divine law and not from ecclesiastical law. Hence Boniface VIII²⁸³ says: "It can be introduced by no custom that anyone, without the permission of his superior, may choose for himself a confessor who can loose or bind him." But what can be introduced by no custom is prohibited by divine or natural law. Hence jurisdiction is also altogether necessary for sacramentally absolving from venial sins, or in general for giving any sacramental absolution whatsoever. If St. Thomas is said to have taught the contrary,²⁸⁴ namely, that a simple priest can absolve from venial sins, he must be explained either from the fact that at that time there existed a general custom approved by the Supreme Pontiffs, by virtue of which jurisdiction for absolving venial sins was conferred upon all priests, or from the fact that the Angelic Doctor speaks of the extrasacramental remission of venial sins. If such general jurisdiction truly existed in the time of St. Thomas, nevertheless it was abolished by Innocent XI on February 12, 1679, by the Decree Cum ad aures: "Let bishops not permit the confession of venial sins to be made to a simple priest not approved by the bishop or Ordinary. If confessors, even regulars, or any other priests act otherwise, let them know that they will render an account to God Almighty, and that the just and rigorous punishment of bishops and Ordinaries against transgressors will not be lacking."

By ecclesiastical law it is established that the grant of jurisdiction: a) be express, either orally or in writing; hence a tacit or presumed grant does not suffice; b) be given gratuitously, that is, without remuneration.²⁸⁵

²⁸² Sess. 14, c. 7, On Penance (Denz., n. 903); cf. Code of Canon Law, c. 872.

²⁸³ c. 2, V, 10, in VI°.

²⁸⁴ In 4, dist. 18, q. 2, a. 3, sol. 1 ad 3.

²⁸⁵ Code of Canon Law, c. 879.

n. 409.

409. Ordinary jurisdiction. It was briefly stated above who enjoy ordinary jurisdiction in the tribunal of penance. Concerning the individual persons, the following things are still to be noted:

1. The Supreme Pontiff has the most ample ordinary jurisdiction in the whole world. The Cardinals participate in this jurisdiction for the internal forum; nevertheless, they cannot absolve from the four censures reserved in the most special manner to the Holy See, nor from those which are attached to the revelation of the secret of the Holy Office.²⁸⁶ Legates a latere, nuncios, and apostolic delegates do not have ordinary jurisdiction, but delegated jurisdiction within the boundaries of the territory committed to them.^286a

Theologians encounter difficulties in explaining the manner of jurisdiction possessed by the confessor of the Pope himself. A reasonable explanation seems to be this: the Pope as Pope commits jurisdiction to his confessor, who then by virtue of this jurisdiction absolves the Pope as a sinful man.

2. The local Ordinary has ordinary jurisdiction in his territory, but in such a manner that the Pope can limit it or even suspend it for most grave reasons. Such ordinary jurisdiction is possessed by a residential bishop, a vicar general, and, when the see is vacant, a capitular vicar; an abbot and prelate nullius; a vicar and prefect apostolic. Likewise, those who, when the aforesaid are lacking, meanwhile succeed to the government according to the prescription of law or approved constitutions.²⁸⁷

3. The penitentiary of a cathedral or collegiate church also has ordinary jurisdiction to hear confessions for the whole diocese; and therefore he can even outside the diocese hear the confessions of all the faithful who have a domicile or quasi-domicile in his diocese; but he cannot delegate this jurisdiction to others.²⁸⁸

²⁸⁶ Ibid., c. 239, § 1, n. 1.

^286a Ibid., c. 267.

²⁸⁷ Code of Canon Law, c. 198, § 1.

²⁸⁸ Thus Benedict XIV, De syn. dioec. l. 3, c. 4, n. 3; Code of Canon Law, c. 401, § 1; c. 873, § 2.

n. 410.

410. 4. A pastor has ordinary jurisdiction, but dependently upon the bishop, who can limit or suspend it.²⁸⁹ Per se, indeed, a pastor has approbation and jurisdiction for his parish alone, so that he can sacramentally absolve no one except his parishioners, wherever in the world they may be, and others who wish to confess within his parochial territory. A sufficiently common custom today, however, is that the bishop gives pastors the faculty of hearing confessions throughout the whole diocese. Bishops are also accustomed to grant a general permission that pastors may summon priests of neighboring dioceses for hearing confessions. But then, as is evident, the bishop, and not the pastor, gives approbation and jurisdiction to those priests summoned, since the pastor cannot by his own authority delegate the faculty of hearing the confessions of his subjects.²⁹⁰

The following are equivalent to pastors: a) quasi-pastors; b) actual vicars; c) vicar administrators; d) assistant vicars; e) substitute vicars.

5. Religious superiors in exempt clerical religious institutes have ordinary jurisdiction for hearing the confessions of their subjects.²⁹¹ But not only professed religious are considered subjects, but also a) novices, b) postulants, and c) those who continually share the common table. Hence religious confessors duly approved by their own superior can hear the confessions both of servants residing in the monastery and of resident students without the approbation of the diocesan bishop.²⁹² But day laborers who live outside the monastery and so-called external students are not considered to belong to the household, and therefore the approbation of the bishop is required for hearing their confessions. Religious superiors can delegate both secular and regular priests to hear the confessions of their own subjects.²⁹³ The manner in which this delegation is to be made is customarily defined in individual orders by particular law. For the rest, discussion of the confessions of religious will return below.

6. Military pastors and bishops, who in certain kingdoms have been granted by the Supreme Pontiffs, are accustomed to have ordinary jurisdiction over soldiers and their wives and children. The particular statutes enacted concerning this matter must be attended to.

²⁸⁹ Certain authors did not wish to concede strictly ordinary jurisdiction to pastors, because jurisdiction in the external forum does not pertain to them. Therefore they called the jurisdiction of the pastor quasi-ordinary.

²⁹⁰ Code of Canon Law, c. 874, § 1; Pontifical Commission, October 16, 1919 (Acta Ap. Sed. XI, 477).

²⁹¹ Code of Canon Law, c. 874, § 1.

²⁹² Ibid., c. 875.

²⁹³ Ibid.

n. 411.

411. Delegated jurisdiction can be obtained in two ways, namely, from a man and from the law. From a man, that is, from someone who has ordinary jurisdiction and the faculty of delegating,²⁹⁴ jurisdiction is customarily granted to all confessors who lack ordinary jurisdiction. By the law, whether written or customary, jurisdiction is delegated in certain cases, namely:

1. Any priest, even one suspended, schismatic, or apostate, can absolve a penitent situated at the point of death or in grave danger of death from any sins and censures whatsoever, but for the internal forum alone.^294a Nevertheless, if a dying person thus absolved afterward recovers, recourse is sometimes necessary, as will be stated more fully below at n. 424. Absolution granted in the same danger of death by a priest not approved is also valid, even when an approved priest is present.²⁹⁵ All soldiers mobilized or called to war are also considered to be situated in grave danger of death.^295a

2. Jurisdiction for hearing confessions is granted to all priests undertaking a sea voyage, provided that they have the faculty of hearing confessions either from their own local Ordinary,²⁹⁶ or from the Ordinary of the port at which they board the ship, or even from the Ordinary of any intermediate port, so that throughout the whole voyage they can hear on the ship, or in a port at which they incidentally disembark, the confessions of any of the faithful and can absolve them even from cases reserved to the local Ordinary.^296a If, however, those priests remain beyond three days at an intermediate port, after three days they must seek permission from the local Ordinary, if this can easily be done.²⁹⁷

3. Jurisdiction over travelers and vagrants is now granted by law, so that they can everywhere be absolved by any priest duly approved by the Ordinary of the place where the confession is made.²⁹⁸

4. Jurisdiction is delegated to those confessors whom bishops,²⁹⁹ Cardinals,³⁰⁰ and others having the privilege of confessing to any worthy priest have chosen for themselves.

²⁹⁴ Cardinals, pastors, and penitentiaries cannot delegate jurisdiction.

^294a Pontifical Commission, December 27, 1927 (Acta Ap. Sed. XX, 61).

²⁹⁵ Code of Canon Law, c. 882.

^295a Sacred Penitentiary, March 18 and May 29, 1915.

²⁹⁶ Pontifical Commission, July 30, 1934 (Acta Ap. Sed. XXVI, 494).

^296a Code of Canon Law, c. 883, § 2.

²⁹⁷ Pontifical Commission, May 20, 1923 (Acta Ap. Sed. XVI, 114).

²⁹⁸ Code of Canon Law, c. 881.

²⁹⁹ Ibid., c. 349.

³⁰⁰ Ibid., c. 239, § 1, n. 2.

n. 412.

412. Cessation of jurisdiction. Jurisdiction ceases:

a) by revocation by the delegator or his legitimate successor;³⁰¹

b) by expiration of the time appointed, when jurisdiction was given for a determinate time; if, however, through inadvertence the confessor gives absolution after the time has elapsed or the number of cases has been exhausted, the absolution is valid;³⁰²

c) by certain censures or penalties, namely, if someone is excommunicated by a condemnatory or declaratory sentence, or suspended from office, or interdicted;³⁰³

d) by loss of office through resignation, privation, removal, or transfer, if there is question of ordinary jurisdiction;

e) by the physical or moral death of the delegator, if jurisdiction was given with these or similar clauses: "at our good pleasure,"³⁰⁴ "during my tenure of office." Hence, if the bishop dies or is removed from his see, jurisdictions granted under these clauses expire. But if jurisdiction was given "until revocation," it lasts until it is expressly revoked. For the rest, the clauses appended are to be understood according to the mind of each bishop who appended them.

³⁰¹ Since this revocation is something odious, it cannot licitly be made without a grave cause; indeed, it is not even valid if the bishop, without consulting the Apostolic See, takes jurisdiction away simultaneously from all the confessors of some formed religious house (Code of Canon Law, c. 880).

³⁰² Code of Canon Law, c. 207, § 2.

³⁰³ Ibid., c. 873.

³⁰⁴ Code of Canon Law, c. 183, § 2.

Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 3, Doubtful, and Probable Jurisdiction

n. 413.

413. Putative jurisdiction is that which in reality is not present, but is thought to be present. The Church supplies jurisdiction if common error is present, but not merely private error.

An error is called common which affects almost all the inhabitants of some place; but if it reaches only a few among the many of the same place, it is called a private error. In order that someone be regarded as a confessor through common error, some fact is required, for example, the exercise of the office of confessor undertaken by commission, from which the faithful of the place commonly regard him as a confessor; it does not suffice that someone once hear confessions after the manner of others.³⁰⁵ Formerly, in addition to common error, a colored title, or at least a supposed title, was required; but now the Code of Canon Law, c. 209, establishes simply: "In common error ... the Church supplies jurisdiction for both the external and the internal forum." Therefore no title is now required, and common error alone suffices for the Church to supply putative jurisdiction. The reason for this law is that otherwise many of the faithful would suffer spiritual harm from an inculpable error, namely, all the absolutions received would be invalid. Therefore, even if jurisdiction was granted for a determinate time or for a determinate number of reserved cases, a confessor who through inadvertence absolves after this time has elapsed or this number has been exhausted absolves validly, as has already been stated. But if a confessor, well knowing that his jurisdiction has already expired, nevertheless hears confessions, he indeed absolves validly when common error on the part of the faithful exists; but he himself incurs suspension a divinis.³⁰⁶ He does not, however, incur this censure, nor does he act wrongly, if he hears confessions in order to avoid a grave inconvenience. Thus, for example, an assistant curate can validly and licitly hear confessions if, on a day of a great concourse of penitents, he suddenly remembers that his jurisdiction has expired and there is not time to seek its prolongation.

Corollaries. 1. The faithful are not to be obliged to repeat confessions made in good faith to a priest who, from common error, was reputed to be a confessor. It is otherwise if someone, knowing of the common error, nevertheless confessed.

2. It is certain that the Church does not supply jurisdiction if the error is private. For then the common good is not harmed. Thus nearly all authors.

³⁰⁵ Cf. Noldin-Schmitt, De sacr.¹⁷, n. 347, and, against him, Cappello, De poenit., n. 490.

³⁰⁶ Code of Canon Law, c. 2366.

n. 414.

414. Doubtful and probable jurisdiction. Doubtful jurisdiction can arise either from a doubt of law or from a doubt of fact. In the first case, probable jurisdiction is rather present; but in the latter event doubtful jurisdiction is present, which can occur especially: a) if it is doubted whether the superior gave jurisdiction; b) whether the time of jurisdiction has expired; c) whether such a sin or such a censure is reserved.

Formerly there existed grave controversies concerning the validity and use of doubtful or probable jurisdiction, which have now ceased, since the Code of Canon Law, c. 209, establishes: "In a positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and the internal forum." Therefore, in practice, absolution can be granted validly and licitly when doubtful or probable jurisdiction exists. Nevertheless, as is evident of itself, care must be taken that the doubt which has arisen concerning jurisdiction be resolved and give place to certain jurisdiction.

Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 4. On the Jurisdiction of Religious and over Religious

n. ¶55.

Ecclesiastical law establishes special provisions: 1. concerning confessors from the religious clergy; 2. concerning penitents who live in the religious state.

n. 415.

415. 1. Confessors from the religious clergy for secular penitents. Religious are understood here to mean not only those who have solemn vows, but also all religious who enjoy the privilege of exemption from episcopal jurisdiction. Religious confessors of this kind receive jurisdiction to hear the confessions both of secular persons and of religious from the local Ordinary, and not immediately from the Holy See, as many authors formerly taught. But religious priests should not ordinarily use it without at least the presumed permission of their superior.³⁰⁷ If, however, they give absolution even against the will of the superior, they nevertheless absolve validly, and even licitly if there was a legitimate cause.

In an exempt clerical religious institute, its own religious superior also confers delegated jurisdiction for hearing the confessions of subjects, that is, of the professed and of residents, and this not only upon priests of his own religious institute, but also upon other priests.³⁰⁸

Religious superiors who have the power of hearing confessions can, with those things which must be observed by law being observed, hear the confessions of subjects who ask this of them spontaneously and of their own motion; but without a grave cause they should not do this habitually. The master of novices and his associate, and the superior of a seminary or college, should not hear the sacramental confessions of their pupils dwelling with them in the same house, unless in particular cases the pupils spontaneously ask this for a grave and urgent cause.³⁰⁹

³⁰⁷ Code of Canon Law, c. 874, § 1.

³⁰⁸ Ibid., c. 875, § 1.

³⁰⁹ Ibid., c. 518, § 2; c. 891.

n. 416.

416. 2. Penitents from the religious state. For the sake of clarity, we distinguish the provisions enacted: a) concerning the confessions of religious men; b) concerning the confessions of religious women.

a) Concerning the confessions of religious men, the old law³¹⁰ established that all religious men had to confess either to their own superior or to confessors legitimately delegated by him. A confession otherwise made was not only illicit but also invalid. Superiors could reserve certain cases to themselves; nevertheless, they had to commit to at least some confessors the faculty of absolving even from these reserved cases; but if they denied this faculty, then any confessor could licitly and validly absolve from the reserved cases. Religious traveling had to confess to a companion legitimately designated, unless greater liberty was granted by particular law. The new law establishes that jurisdiction for hearing the confessions of religious is conferred either by the local Ordinary or by the religious superior in exempt clerical religious institutes. This religious superior can grant this jurisdiction even to priests of the secular clergy or of another religious institute, who can then hear the confessions not only of the professed and novices, but also of all who dwell in the religious house day and night, for example, for the purpose of service.³¹¹

The ancient constitutions which command or counsel that the confession of religious be made at fixed times to determined confessors have not indeed been abrogated, but it is granted³¹² that any religious, even a novice,³¹³ can validly and licitly, for the peace of his conscience, confess to any confessor approved by the local Ordinary, that is, by the bishop and his vicar, the abbot nullius, and so forth. Such a confessor can absolve a religious in the internal forum even from sins and censures reserved within the religious institute. But concerning absolution in the external forum, the old discipline remains intact.

In lay religious institutes of men, for example, among the Brothers of Charity, individual religious can indeed validly and licitly, when a just cause exists, confess to any confessor approved by the local Ordinary; but an ordinary and an extraordinary confessor are to be appointed for their houses in a manner similar to that for communities of religious women, with this difference, however, that these religious men, with the exception of novices, are not bound to approach the extraordinary confessor.

³¹⁰ Clement VIII, May 26, 1593; Urban VIII, September 21, 1624; and several decisions of the Roman Congregations.

³¹¹ Code of Canon Law, c. 514, § 1; c. 874; c. 875.

³¹² Sacred Congregation of Religious, August 5, 1913 (Acta Ap. Sed. V, 431); Code of Canon Law, c. 519.

³¹³ Sacred Congregation of Religious, May 3, 1914 (Acta Ap. Sed. VI, 232).

n. 417.

417. b) Concerning the confessions of religious women, whether with solemn or simple vows, or even without vows, the old law has likewise been abolished. The principal provisions of the new law³¹⁴ are the following:

1. Only one ordinary confessor is ordinarily to be appointed for each religious community, unless, because of the great number of religious women or another just cause, it is necessary that another or several confessors be given. Therefore no one can hear the confessions of a religious community unless he has special jurisdiction granted by the local Ordinary for this religious community. Cardinals, however, have a privilege. According to certain authors, there is no obligation to name an ordinary confessor if there are not six sisters in a religious community.³¹⁵ But sisters for whom no ordinary confessor has been determined can confess freely, like the secular faithful. The ordinary confessor must have the following conditions:

a) He must be at least forty years of age, unless the Ordinary for a reasonable cause dispenses from this condition of age; he must be eminent in integrity of morals and prudence.³¹⁶

b) He must ordinarily be appointed for no longer than a three-year term. The bishop, or Ordinary, can dispense from this condition for a second or even a third three-year term if there is a scarcity of suitable priests, or if the greater part of the religious women request this by secret votes. When the three-year term, or by dispensation the second and third three-year terms, of the ordinary confessor has ended, the same confessor cannot be appointed to the same office in the same community except after one year. An extraordinary confessor, however, can immediately be chosen as ordinary, but not vice versa.³¹⁷

c) He must be from either the secular or regular clergy, provided, however, that he has no power in the external forum over the same religious women. Therefore bishops, vicars general, regular superiors, and so forth, are excluded from the office of confessor, whether ordinary or extraordinary, for their subjects.³¹⁸

2. Several times a year, at least four times, an extraordinary confessor is to be given to each religious community, whom all the religious women must approach, at least to receive a blessing if they do not wish to confess to him. The office of extraordinary confessor is not limited as to time. He must be endowed with the same qualities as the ordinary confessor.³¹⁹

3. Besides the ordinary and extraordinary confessor, several supplementary confessors are to be appointed by the local Ordinary for each religious house, whom the religious women can easily summon in particular cases for the purpose of making a confession.³²⁰

4. On an occasional confessor. For the tranquility of their conscience, religious women can make their confession in any church or oratory, even a semi-public one,³²¹ or in another place legitimately designated for the confessions of women, but not in another place, and not even validly,³²² to any confessor approved for women. The superior can neither prohibit this nor inquire concerning it, not even indirectly; nor are the religious women bound to report anything to the superior concerning the confession made.³²³

5. Even a special confessor, who is not included among those enumerated above, is to be readily granted by the Ordinary if and for as long as some religious woman requests this for the peace of her soul and greater progress in the way of God.³²⁴ Indeed, religious women who are gravely ill can, even without the permission of the Ordinary and of the superior, summon for the purpose of confession any priest approved for hearing the confessions of women. Nothing prevents an ordinary confessor who has not yet completed a year from the cessation of his office³²⁵ from being granted as a special confessor or director of conscience.

6. The appointment of the ordinary or extraordinary confessor pertains to the bishop of the place. But if a religious community is subject to the jurisdiction of a regular superior, then it is his office to present confessors, while it pertains to the bishop of the place to grant the power of hearing confessions to the confessors presented.³²⁶

7. Let absolutely all confessors refrain from involving themselves in the internal or external government of the community.³²⁷

8. The local Ordinary can for a grave cause remove any confessor of religious women; nor is he bound to communicate the cause of removal to anyone, except to the Holy See if required by it. He must, however, notify the regular superior of the removal if the nuns are subject to regulars.³²⁸

³¹⁴ Sacred Congregation of Religious, February 3, 1913 (Acta Ap. Sed. V, 62 ff.): "This Decree must be observed by all religious families of women with either solemn or simple vows, by Oblates and other pious communities which are bound by no vows, even if they are only diocesan institutes. It also binds communities which are under the jurisdiction of a regular prelate; if he does not take care for the faithful observance of this decree, the bishop or Ordinary of that place is himself to do so as a delegate of the Apostolic See." Code of Canon Law, c. 520 ff. and c. 675.

³¹⁵ Sacred Congregation of Religious, July 3, 1916, ad III (Linzer Theol. Quartalschr. 1916, p. 398); cf., however, our Man. iur. can.⁶, q. 190.

³¹⁶ Code of Canon Law, c. 524, § 1.

³¹⁷ Ibid., § 2.

³¹⁸ Ibid., § 1.

³¹⁹ Ibid., c. 521.

³²⁰ Ibid., § 2.

³²¹ Cf. Sacred Congregation of Religious, July 3, 1916, ad I.

³²² Pontifical Commission, November 24, 1920, and December 28, 1927 (Acta Ap. Sed. XII, 575; XX, 61), and February 12, 1935 (Acta Ap. Sed. XXVII, 99).

³²³ Code of Canon Law, c. 522.

³²⁴ Cf. Sacred Congregation of Religious, April 22, 1917 (Acta Ap. Sed. IX, 277), and Code of Canon Law, c. 520, § 2.

³²⁵ Cf. above, 1 b.

³²⁶ Code of Canon Law, c. 525.

³²⁷ Ibid., c. 524, § 3.

³²⁸ Ibid., c. 527.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 13 passages

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Article I: On Approbation And Jurisdiction · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. I, § 1. On The Nature And Necessity Of Approbation · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. I, § 2. On The Nature And Necessity Of Jurisdiction · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Article II: On The Acquisition And Loss Of Jurisdiction · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 1. On Ordinary Jurisdiction · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 2. On Delegated Jurisdiction · Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 3. On Jurisdiction Supplied By The Church

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Article I: On Approbation And Jurisdiction

n. ¶1745.

APPROBATION and JURISDICTION are customarily used promiscuously, because Bishops in modern times grant each by one and the same act. Yet approbation is not the conferral of jurisdiction, and one can exist without the other, and in fact sometimes does exist, as will be clear from what is to be said. - Hence, the nature and necessity of each must be taught separately.

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. I, § 1. On The Nature And Necessity Of Approbation

n. ¶1746.

I. APPROBATION is the juridical judgment of the Bishop concerning the fitness of some priest for hearing confessions.

It is called 1. a juridical judgment; for it is an act of the intellect, and not only of the will, as is the conferral of jurisdiction. Hence, ordinarily it is not made except after an EXAMEN has previously been instituted. Yet this is not essentially required, because a prudent judgment can be had even without examination, as often as the fitness of the priest is established from another source. 2. Of the Bishop, even if not yet consecrated; or of the Vicar general, or Vicar capitular, or Abbot having episcopal jurisdiction. - 3. Concerning fitness, that is, concerning the complete aptitude of the priest, both as regards necessary knowledge and prudence, and as regards holiness of morals suitable to the vicar of Christ in this ministry.¹ Yet the judgment is accompanied by an act of the will, by which the one approving wills that he who has been judged fit can freely use his jurisdiction, whether already had or to be had.

II. For the liceity of absolution, indeed for its validity, approbation IS REQUIRED. This is established from Trent, saying in sess. 23, de reform., cap. 14: "Although priests in their Ordination receive the power of absolving from sins, nevertheless the holy Synod decrees: that no one, even a Regular, can hear confessions of seculars, even priests, nor be reputed fit for this, unless either he has a parochial benefice, or is judged fit by the Bishops through examination, if this shall seem necessary to them, or otherwise, and obtains approbation, which is to be given gratis." Certain cases are excepted, in which the Church supplies jurisdiction (cf. n. 1753 seqq.).

This approbation is necessary even for hearing confessions of venials, as is established from the decree of Innocent XI, February 12, 1679, on daily Communion, and from the common interpretation and practice of more recent Authors.²

n. ¶1747.

Questions. Q. 1. In what way is approbation given?

Resp. 1. Implicitly, through the conferral of a parochial Benefice. For he to whom care of souls is committed is by that very fact declared fit for receiving the confessions of those committed to him, so long as he retains his office. - But if he resigns it, approbation ceases, unless perhaps (which is customarily done) the Ordinary wished him to be approved even independently of the parochial benefice.

Explicitly, through an express judgment. This mode of approbation, pertaining to delegated jurisdiction alone, was introduced by the Council of Trent. For before that time it belonged to pastors to delegate their jurisdiction to other priests not approved by the Bishop, yet entangled in no censure. - But mendicant Regulars did not need the approbation of Bishops, since they freely used jurisdiction directly conferred upon them by the Holy See.³

Q. 2. From WHICH Bishop or ORDINARY must approbation be obtained?

Resp. According to the opinion today altogether to be held, it must be obtained from the Bishop or Ordinary of the place where confessions are to be received; nor does the approbation either of the Bishop of the penitent or of the Bishop of the confessor suffice. This is established from the Bull Cum sicut of Innocent XII (April 19, 1700), and from the Bull Apostolica Indulta of Benedict XIV (August 5, 1744).⁴

Hence: 1. A priest approved in one diocese cannot absolve even his own penitents in another, unless he has previously obtained the approbation also of this Bishop. Yet domicile or quasi-domicile in the diocese is not required for obtaining it.

A pastor in his own diocese, but outside his own parish, must, like other priests, be approved for receiving the confessions of those who are not of his parish.⁵ Thus it is gathered from the S. C. of the Council in Leodien., August 1600.⁶

Q. 3. Whether approbation SOUGHT and unjustly denied suffices?

Resp. Negative, for the Council of Trent (loc. cit.) requires that the priest obtain approbation; but unjust denial is not concession. The same is established from the 13th proposition condemned by Alexander VII: "He satisfies the precept of annual confession who confesses to a Regular presented to the Bishop, but unjustly rejected by him." But "although the Bishop internally disapproves, external approbation is valid for conferring jurisdiction."⁷

Q. 4. Whether PRESUMED approbation suffices?

Resp. 1. Presumed approbation concerning the future does not suffice, that is, which is judged would be conceded if it were sought. But approbation actually existing and declared by some sign is necessary. Hence it is not permitted to begin confessions before that consent, sought by letters, has truly been given, although it may seem certain to be obtained. Thus commonly. 2. Presumed approbation concerning the present, or tacit approbation, suffices (cf. n. 239, Req. 2). Hence he validly absolves who hears confessions in the presence, or with the knowledge and non-contradiction, of the Ordinary, to whom it is established that he does not otherwise have approbation; because then the Ordinary is presumed to give it in the present. But such a presumption, since it is founded on evident signs, certainly suffices.⁸

Q. 5. Whether the Bishop can subject priests already approved AGAIN to examination, and LIMIT or REVOKE their approbation?

Resp. 1. The Bishop can, from a just cause, recall to examination all confessors approved by himself or by a predecessor, even pastors and Regulars, provided there is a vehement suspicion of their inexperience. This is established from the decree of the S. C. of the Council, January 15, 1667,⁹ and from the Constitution Romani Pontificis of St. Pius V. - He can similarly, at his will, revoke approbation already given, or restrict it to place, to time, to persons, without being bound to give a reason for such revocation or restriction. This is expressly deduced from the Bull Apostolici ministerii of Innocent XIII, by force of which the whole matter was committed to the Bishop.¹⁰

Resp. 2. If revocation or restriction is made without a just cause, it is indeed illicit, but nevertheless valid. This is established from the 13th proposition condemned by Alexander VII (as above, question 3). - There are indeed Authors who deny that approbation once absolutely conceded can be validly revoked without reasonable cause; "but," says St. Alphonsus,¹¹ "I judge this opinion scarcely probable in practice, because the injustice of the revocation would have to be clearer than light, and every danger of hallucination absent; but this can scarcely occur, since there can be innumerable just causes with the Bishop for revoking approbation, which are unknown to the confessor." But in doubt whether the revocation was made from a just cause, the presumption is for the Superior.

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. I, § 2. On The Nature And Necessity Of Jurisdiction

n. ¶1748.

I. JURISDICTION, in general, is the power of ruling subjects (cf. n. 138). - Sacramental jurisdiction, of which we are here treating, is the power of absolving or binding subjects in the Tribunal of penance.

Jurisdiction is one thing ordinary, another delegated. - ORDINARY is that which comes to someone by reason of the office itself, to which it is annexed by ordinary law; DELEGATED, that which is legitimately granted to someone by him in whom the ordinary jurisdiction resides.

II. For VALIDLY receiving confessions, the power of Order does not suffice, but the power of JURISDICTION is REQUIRED, whether ordinary or delegated. - This is established from Trent, sess. 14, cap. 7: "Since therefore the nature and character of judgment demands that sentence be pronounced only upon subjects, it was always held as persuaded in the Church of God, and this Synod confirms it to be most true, that the absolution which a priest pronounces upon him over whom he does not have ordinary or subdelegated jurisdiction ought to be of no moment."

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Article II: On The Acquisition And Loss Of Jurisdiction

Three things must be investigated in this article: 1. to whom ordinary jurisdiction belongs; 2. how delegated jurisdiction is acquired; 3. whether and when the Church supplies the defect of jurisdiction.

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 1. On Ordinary Jurisdiction

n. ¶1749.

I. Ordinary jurisdiction belongs to all those who have an OFFICE to which it is annexed BY ORDINARY LAW. This is established from the very definition of ordinary jurisdiction.

Hence ORDINARY jurisdiction belongs: 1. to the Supreme Pontiff, for the whole earth and in each forum; likewise to the Major Penitentiary, but only in the internal forum. - 2. To Bishops, for their respective dioceses, likewise in each forum; likewise to Archbishops visiting the subjects of Suffragans; to Vicars capitular; to Vicars general, and these, according to the very common and truer opinion, also for each forum; as also to the Canon Penitentiary of the cathedral Church for the internal forum, where the Penitentiary is erected into an Office. - 3. To pastors, likewise to perpetual vicars or vice-rectors, for their subjects, but in the internal forum alone. - 4. To Abbots, for their whole proper Convent or territory. - 5. To general Provosts, Provincials, and local Superiors, for their subjects. - See the Canonists.¹²

Let it be noted: 1. Those who possess ordinary jurisdiction can exercise it, since it is personal, EVERYWHERE, over their subjects. - Hence Bishops and pastors validly absolve the faithful committed to them outside the diocese, even from cases reserved in the place of confession. Thus the S. C. of the Council, December 3, 1707, in Posnanien.¹³

They can DELEGATE their jurisdiction, or exercise it through another, even if a Superior of an inferior order, in whom ordinary jurisdiction resides, contradicts. Thus the Pope can appoint confessors against the will of the Bishop, and the Bishop against the will of the pastor. - But if the one delegating does not have the right of approving in the place of confession, he is bound to choose those approved by the Ordinary of the place. Hence the faculty of delegating which pastors enjoy has become almost useless, since Bishops customarily confer jurisdiction together with approbation, as was said in n. 1745.

n. ¶1750.

II. Penitents can BECOME SUBJECTS of one having ordinary jurisdiction by a threefold reason: by reason of DOMICILE, by reason of PRIVILEGE OF STATUS, and by reason of CUSTOM (cf. n. 138, Div. 3).

By reason of DOMICILE or QUASI-DOMICILE; namely, if they intend to dwell in the territory of one having ordinary jurisdiction in perpetuity, or for a notable part of the year (cf. n. 203). - Hence merchants, students in academies, courtiers in courts, are subject to the ordinary jurisdiction of the pastors of those places where they are staying.
By reason of PRIVILEGE OF STATUS, or enrollment into certain families. Thus Cardinals dwelling at Rome, who otherwise lack jurisdiction, have it, and as it were ordinary, over their own household, for the forum of Penance. Hence "they are able to choose as confessor, both for themselves and for their household, any priest," whom also, if he has been approved in the City, they can take with them outside the City.¹⁴ - Thus also Novices are subject to Superiors of Religion, and all those who are truly of the household of the house, or domestics, and continual table-companions. Thus from the Constitution Superna of Clement X, and from the decision of the S. C. of Bishops and Regulars, July 21, 1848, in a Parmen.¹⁵ (cf. n. 2186).
By reason of LEGITIMATE CUSTOM, insofar as this is an indication of consent furnished by the Superior. Hence, from universal custom, the Bishop of the place whence ships set sail has the ordinary faculty of approving and delegating priests who are about to sail, for the whole time of navigation; that is, "until they arrive at a place where another ecclesiastical Superior possessing jurisdiction has been constituted."¹⁶

Likewise, chaplains of armies validly absolve soldiers who are on the road and in camps everywhere, even without jurisdiction obtained from the Bishop of the place. But they cannot absolve soldiers dwelling in garrisons without a special faculty of the Apostolic See, or the license of the Ordinary. This is established from various declarations of the S. C. of the Council.¹⁷

IT IS ASKED. In what way is ordinary jurisdiction LOST?

Resp. It is lost 1. by cessation of the Office, for example by death, resignation, removal, translation. But a pastor translated from one parish to another does not lose jurisdiction over the prior parish unless he has assumed possession of the new parish. Thus from common law.¹⁸ It is lost 2. by public excommunication and one denounced by name; likewise by suspension from jurisdiction, or from every office; otherwise, if the suspension is from Order only (cf. n. 1303).

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 2. On Delegated Jurisdiction

n. ¶1751.

DELEGATED jurisdiction, as was already said above, comes to priests from the legitimate commission of a Superior having ordinary jurisdiction. - For delegation of this sort there is REQUIRED, on the part of the one delegating, that he not extend it outside the territory or limits of his own jurisdiction; but on the part of the one to be delegated, that he not be an excommunicated vitandus, and moreover, if it is a question of receiving the confessions of seculars, that he have been previously approved (cf. n. 1746).

Jurisdiction is DELEGATED directly or indirectly.¹

I. It is delegated DIRECTLY when power is committed to someone so that he himself by himself may absolve penitents. This happens in a threefold way, namely by man, by law, and by custom.

Jurisdiction is said to be delegated BY MAN when someone able to delegate expressly, by word or writing, or at least tacitly, through signs which declare present consent, commits jurisdiction to someone capable (see what was said in n. 1747, q. 4).
Jurisdiction is delegated BY LAW when through a law, through a Bull, through a papal Constitution, the faculty of absolving is conceded to certain persons. Thus it has been conceded to Regulars, provided they have been approved by the Bishop of the place, that they validly and licitly absolve all coming to them. Thus from the Constitution Superna of Clement X.
Delegated jurisdiction is had BY CUSTOM when the custom of absolving is a certain indication of consent furnished by the Bishop, if namely he knows it and does not protest: as when neighboring pastors of diverse dioceses help one another with mutual assistance in hearing confessions.²

II. Jurisdiction is delegated INDIRECTLY when the faculty is conceded to the penitent of choosing for himself one of the approved priests as confessor. This election having been made, jurisdiction is judged to have been conferred upon the confessor by the Church.³

Moreover, the PRIVILEGE OF CHOOSING a confessor for oneself belongs: 1. by common law,⁴ to confirmed Bishops, although not yet consecrated; likewise to inferior exempt Prelates, Auditors of the Rota, and other Prelates of the Roman Curia, and to Superiors of Regulars, even local ones, with the privileges and statutes of Orders preserved; 2. by custom, to kings and princes enjoying supreme dominion; likewise to domestics of the Roman Pontiff; - 3. by special concession of the S. Pontiff, for example in the time of Jubilee, to all seculars and Regulars, as was said above (n. 1736).⁵

Note. Bishops and Prelates formerly could make their confessions before any priest whatever; but today they are bound to confess either before a subject whom they themselves approve, or before an external priest whom his own Bishop has approved. - But they can take this approved or elected priest with them, and use his ministry even in another diocese. Thus it was declared by the S. C. of the Council, and Gregory XIII confirmed this on December 1, 1582.⁶

n. ¶1752.

Questions. Q. 1. Whether a priest legitimately delegated can receive confessions of the faithful WITHOUT LEAVE of the pastor?

Resp. 1. Negative as regards LICEITY, if he receives them in a church subject to the pastor. For due order requires that license be sought from the rector of the church in which the sacred ministry is to be exercised. But if he receives them in a church of Regulars or of Nuns, the leave of the Superior or Superioress certainly suffices.

Resp. 2. Affirmative as regards VALIDITY; for the pastor can obstruct nothing when the Bishop has generally approved or delegated the confessor. But if in the approbation there were these clauses: With the consent of the pastor..., except at paschal time, or similar ones, they are to be understood of liceity alone. For thus universal custom bears, to which the delegating Superior is deservedly presumed to have conformed himself.⁷

Q. 2. Whether a priest furnished with legitimate jurisdiction in some place is able to receive confessions of TRAVELERS coming there?

Resp. St. Alphonsus affirms it, writing:⁸ "It is certain and common today among the Doctors that travelers, by reason of the connivance of Bishops, or better from universal custom, can confess to any confessor approved for the place where they are found; and such custom runs even if the traveler departs from his country for the end of confessing elsewhere"; provided he does not do this in fraud of reservation, as will be explained in its place (n. 1771, qq. 3 and 4). - Besides, as regards regular confessors Clement X expressly declared this in the Constitution Superna.⁹

Q. 3. In what way does delegated jurisdiction cease?

Resp. It ceases: 1. by revocation of the Superior, and this notified; - 2. by expiration of the prefixed time; - 3. by the death of the one delegating, or by his removal from office, if jurisdiction had been given for some particular person and the confession had not yet been begun; or also if it had been given generally, but with this or a similar clause: "at the decision of our will; until our good pleasure."¹⁰

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Ch. I, Art. II, § 3. On Jurisdiction Supplied By The Church

n. ¶1753.

Three principal cases are enumerated in which the Church SUPPLIES jurisdiction, and imparts it, for individual acts, to a priest who otherwise lacks it. The first is the case of danger of death; the second is the case of common error; the third is the case of probable jurisdiction. Wherefore the following principles must be established.

Principles. I. If DANGER OF DEATH is imminent and an approved confessor is lacking, EVERY PRIEST can absolve a dying person from ANY censures and sins WHATEVER. Thus expressly the Roman Ritual, on the Sacrament of Penance. Trent is consonant, sess. 14, cap. 7, in these words: "Most piously, lest on this occasion itself anyone should perish, it has always been guarded in the same Church of God, that there be no reservation in the article of death: and therefore all priests can absolve any penitents whatever from any sins and censures."

It is said 1. If danger of death is imminent; because the article of death and danger are equated in law. But such danger is judged to be present in battle, in a long voyage, in difficult childbirth, and in every grave and mortal disease. - And the Doctors say this same thing of him who would be in probable danger of falling into madness, or would be a captive among Turks and feared that he would have no priest any more to whom he could afterward confess.¹¹

It is said 2. and an approved confessor is lacking. For the Church does not concede the faculty except by reason of extreme necessity, namely lest someone perish. But this reason ceases, or is judged to cease, when an approved one is present. Thus the very common opinion and one to be held in practice, against another which nevertheless Lugo calls probable.¹² Except with the common opinion: 1. If the approved one would not wish or would not be able to hear the confession, because then it would be the same as if he were lacking. 2. If the dying person so dreaded manifesting his crimes to the approved one, because for example he is his enemy, or blood-relative, or the object of the sin to be manifested, that he would be in danger of confessing sacrilegiously. 3. If the infirm person could not confess to the approved one without great difficulty or inconvenience (thus Sporer, cited by St. Alphonsus and not rejected). 4. If the approved one comes after the confession has already been begun with a simple priest (cf. n. 1780). - Except a fortiori: 1. If the approved one has been excommunicated by name, suspended, interdicted, irregular, degraded, schismatic, notoriously heretical, apostate: because such a one has lost jurisdiction, and a simple priest is to be preferred to him; 2. if he were of another diocese, because in this case he could by no means be called approved with respect to the sick person; 3. if he were the accomplice of the infirm person in a base sin¹³ (cf. n. 1780).

It is said 3. every priest; therefore even a priest who was never approved; even an irregular or suspended one; even an excommunicated or degraded one; indeed even a vitandus, schismatic, heretic, apostate.¹⁴ - Indeed all these validly absolve the one in danger when an approved one is lacking; yet not licitly unless order is preserved: that is, a priest immune from every censure and punishment should absolve rather than an irregular or suspended one; this one rather than an excommunicated one, etc.¹⁵

It is said 4. from any censures and sins whatever; because in the article or danger of death there is no reservation. Yet see what was said in n. 1282 and other things to be said in n. 1777.

n. ¶1754.

II. If COMMON ERROR with a COLORABLE TITLE is present, it is certain that the Church supplies the jurisdiction which is lacking to the confessor. Thus all, and it is proved from the law Barbarius, ff. de Officio Praetorum, and from can. Infamis, Cause 3, q. 7. - The reason is because otherwise many souls would perish, and therefore the Church is reasonably presumed to supply.¹⁶

It was said 1. If common error is present, that is, if all or almost all the faithful of that place think that the confessor is in fact furnished with jurisdiction, whether ordinary or delegated. But otherwise if the error is private, namely of one or a few. The reason is because the Church is not judged to supply except by reason of the common good, after the manner of a provider or general governor, who attends to the common good alone, and leaves the good of private persons to the care of particular providers. Thus very commonly the Theologians, against a few.

It was said 2. with a colorable, or putative, title, namely one which was conceded by a legitimate Superior, and of itself would be apt for conferring jurisdiction, unless it were made void by an occult defect. - Moreover, that defect can occur: 1. in the one conceding, for example if he had not been free in conceding, or if the Bishop had died, and, the death being commonly unknown, his Vicar continued to hear confessions; - 2. in the one receiving, whether some vice preceded, for example occult irregularity or excommunication, or whether he has been despoiled of his title and this is unknown; - 3. in the act, as if occult simony intervened, by reason of which the act would be void. Therefore, in these cases, the confessor, common error standing, validly absolves; although he sins mortally if he is conscious of his defect.¹⁷

"It is more doubtful," says the Holy Doctor,¹⁸ "whether the Church supplies jurisdiction when only common error intervenes, WITHOUT A COLORABLE TITLE.

"Busenbaum, Concina, Roncaglia, Sporer, Holzmann, etc., deny it, while they say that otherwise impious priests would take occasion from this to feign that they are confessors, and to disseminate errors. - But this reason does not convince; because although the Church denied jurisdiction to these, nevertheless it would not impede the damage. - Wherefore Lugo, Lessius, Pontius, Castropalaus, Sanchez, etc., probably affirm it, and Roncaglia, Sporer, and Holzmann themselves, with Cardenas, etc., say that it is probable, since the same reason of the common good which is brought forward for a colorable title runs also for error."¹⁹ - But since this opinion is at least probable, it can sometimes, with a just cause, be licitly brought into practice, as is clear from the following principle.

n. ¶1755.

III. A priest VALIDLY and LICITLY absolves WITH PROBABLE JURISDICTION, with probability of law, if some gravely reasonable cause concurs. The reason is because a universal custom flourishes in the Church, and almost all confessors follow it, of absolving, when a just cause is present, with probable jurisdiction. - But such a custom certainly confers jurisdiction, and therefore the confessor now does not absolve with a probable opinion, but with true certitude, namely with reflex certitude (cf. n. 82, Except 2).

We said 1. with jurisdiction probable with probability of law, namely that which rests upon the opinion of grave Theologians. Therefore not any probability whatever suffices, but, as the Authors commonly hold, that is required which is supported by truly serious reason and authority.

We said 2. if a gravely reasonable cause concurs (at least, so that absolution be given licitly); because although in that case the Church can rightly be judged to supply jurisdiction on account of the good of souls, nevertheless, every just cause being lacking, she is not presumed to wish to connive at the mere liberty of priests.¹

Moreover, a REASONABLE CAUSE would be had: 1. If the penitent especially needed the help or counsel of this confessor. - 2. If the accomplice of the sin is known to the confessor who possesses certain jurisdiction. 3. If the confessor who has probable jurisdiction prudently fears that the penitent will make a sacrilegious confession before him who has certain jurisdiction. - 4. If the penitent himself fears lest he fall into some aversion or damaging suspicion of the approved confessor. 5. If otherwise he would have to abstain from confession for a longer time. 6. If the precept of annual confession is urgent, or an occasion is given of gaining particular Indulgences. 7. If the penitent had already declared some grave sin to the confessor, and this latter doubted whether it is reserved or not (cf. n. 1769).²

n. ¶1756.

IT IS ASKED. Whether it is permitted to absolve with jurisdiction doubtful by DOUBT OF FACT, for example when it is doubted whether jurisdiction was in fact conceded by the Superior, whether it endures, etc.?

Resp. Negative, unless some necessity compels, and then only under condition. But NECESSITY is judged to compel when it is better that someone be doubtfully absolved than not absolved at all, that is: 1. If the precept of annual confession is urgent; 2. if the penitent must celebrate Mass or communicate, and otherwise would incur the mark of infamy; 3. if a priest must celebrate from obligation on that day. Yet one doubtfully absolved cannot communicate unless he elicits an act of perfect contrition, and he is bound to subject the sins again to the keys, unless he learns that the confessor had true jurisdiction.³ (cf. n. 1663, q. 5, and there at the end of the Note.)

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 3 passages

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, Ch. I, ARTICLE II: ON JURISDICTION

Ch. I, Question II: Concerning the Power of Jurisdiction · Ch. II, Q. I, Ordinary or Delegated

What jurisdiction is, and what its various species are, see n. 149.

n. ¶1393.

1393. Principles. - I. The power of jurisdiction is necessary for hearing Confessions, nor does the power of Order suffice. The reason is that absolution is a judicial sentence, which cannot be passed except on subjects. Therefore subjects must be assigned to the confessor; but this pertains to him who has authority over those subjects. Moreover, this is altogether required for the right governance of the Church. For a very great inconvenience would arise if the faculty of absolving were independent of those to whom it was said by Christ: Whatever you shall bind, ... shall be bound; ... whatever you shall loose, ... shall be loosed. But it is especially clear from Trent.

II. Ordinary jurisdiction belongs: 1° to the Pope for the whole Church in both forums; 2° to the Bishop for his diocese, likewise in both forums, since it has been committed to him precisely that he may rule and direct it; likewise to the Archbishop, while he visits the subjects of his Suffragans; to the Capitular Vicar; to the Vicar General; and, for the internal forum, to the Canon Penitentiary of the Cathedral church; 3° to parish priests for their subjects in the internal forum; 4° to Abbots and Prelates of Regulars for their subjects.

III. Ordinary jurisdiction can be delegated, or exercised through another. The reason is that delegation is a proper act of ordinary power. Cf. n. 150. Nevertheless jurisdiction for hearing Confessions cannot be delegated except to a priest approved by the Bishop, as is clear from what was said above concerning approbation. As regards parish priests, the faculty of delegating has become almost useless; since Bishops, to whom it pertains to approve confessors, are accustomed to confer jurisdiction and approbation together, as was said in n. 1391.

IV. Delegated jurisdiction is granted by the Church to any priest in a case of extreme necessity, or in the article of death, or, as others will have it, the Church then supplies jurisdiction. This is clear from Trent.

V. Delegated jurisdiction for hearing Confessions expires by revocation made by the Superior, or by the lapse of the prefixed time; likewise by the death of the one delegating, or his ceasing from office, if it was given for some particular person and the judgment has not yet been begun; or also if it was given generally, but with the clause: at the will of the one granting; at our good pleasure, or another similar clause. Cf. n. 151.

n. ¶1394.

1394. Questions. - Query 1° What is the jurisdiction of confessors in the Ecclesiastical Provinces of the United States, ordinary or delegated, and to what places does it extend?

Resp. 1° According to those things which we said in n. 1138, the common opinion almost up to this time has been that the jurisdiction of all priests is delegated. Therefore they cannot absolve those committed to them in a foreign diocese. See however T. I. (b), p. 471.

Resp. 2° That ancient custom, that approbation given for the diocese of one of these Provinces would be valid also for the others, which custom had been introduced in the year 1810 by a quasi-pact of the Bishops, has been abrogated.¹

Resp. 3° All priests among us are accustomed to be approved and are considered approved for the whole diocese, "although," as Kenrick rightly observes,² "they ought not to use the faculties committed to them to the burden of others; wherefore, only with the good leave of the Missionary of the place, ought they to hear Confessions outside their Mission."

Query 2° Can delegated jurisdiction be subdelegated?

Resp. Neg., generally speaking, namely, unless a special concession of the one delegating is added; and then it is considered to be subdelegated in the name of the one delegating himself. The reason is that a delegate has only that power which is granted to him; but to him is granted only the power of exercising jurisdiction, not of committing it to another, unless something else is expressed. Therefore, etc. - For exceptions see n. 150.

Query 3° Does the Church supply jurisdiction when penitents invincibly are ignorant of its defect?

Things to be noted beforehand concerning a title of jurisdiction and error concerning it. - A title of jurisdiction in general is an act by which power for performing ecclesiastical functions is conferred.

A title is true or false: it is true when it labors under no vice; but in order that it be true, three things are required: 1° the free power of the one granting; 2° the ability of the one receiving; 3° the due form in the act of concession.

False is that which labors under a vice concerning one of the three things just indicated. It is also called putative relatively to those who, ignorant of its vice, deem it legitimate.

A false title can be either fictitious, or colored, or simply or notoriously null.

Fictitious is that which was not granted by a Superior, or not for the case, or place, or time, or person, concerning which there is question.

Colored is that which was granted by a legitimate Superior, and of itself would be apt for conferring jurisdiction if it were not voided on account of a hidden defect; but that hidden defect can occur: 1° in the one granting. Thus, e.g., if the death of the Bishop were unknown, his Vicar General would have only a colored title; 2° in the one receiving, whether some vice preceded, e.g. hidden irregularity, or excommunication; or whether he was deprived of his title, and this is unknown; 3° in the act, as if hidden simony had intervened, by reason of which the act would be void.

Simply null is that which was granted by a Superior to whom it does not pertain to grant, e.g. by an Archbishop, outside the cases in which the faculty of supplying the negligence of Suffragans is attributed to him; or if it was indeed granted by him to whom it pertains to grant, but labors under a vice manifest to all or almost all.

Error concerning the title can be either common among the faithful, all or almost all of the place where Confessions are heard, or private only of some person.

These things having been noted beforehand:

Resp. 1° The Church certainly supplies if the error is common and at the same time joined with a colored title. The reason is drawn from the common interpretation of Theologians supported by diverse places of the Law. For, as they say, the Church, as a pious mother, is deservedly considered to supply jurisdiction for the good of souls, since she can do this.²

Resp. 2° According to an opinion probable to St. Alphonsus, but whose opposite he says is more common, the Church also supplies if common error is present without a colored title, but with a title only esteemed or fictitious. For the same reason urges as in the preceding case, since also in this hypothesis innumerable souls could perish.³

Resp. 3° The Church is not considered to supply jurisdiction if the error is private, e.g. if it is of one or a few. The reason is that the Church is not considered to supply except by reason of the common good, after the likeness namely of a provider or general governor, who attends only to the general good of society, and leaves the good of private persons to the care of particular providers. - Thus very commonly the Theologians against a few.

Query 4° Is it lawful to absolve with doubtful jurisdiction in a doubt of fact, for example in a case in which it is doubted whether it was truly conferred by the Superior, or whether the time for which it was granted has elapsed?

Resp. Neg., unless there presses the necessity of annual Confession, of celebrating or communicating in order to avoid infamy, of celebrating from obligation, or of absolution from mortal sin otherwise not to be had for a long time; in these cases however only conditionally, with the burden on the penitent of confessing again if he learns that the confessor truly lacked jurisdiction, and with contrition elicited before Communion (n. 1344. q. 8° under 8°).

Query 5° Is it lawful to absolve with jurisdiction probable by probability of law?

Resp. Affirm., provided the opinion is truly probable, supported by grave reason and authority. For in this case custom itself confers jurisdiction, and by force of this custom the confessor, in absolving, would not absolve with only a probable opinion, but with morally certain certitude, not direct, but reflex. - Nevertheless it is not lawful to use this jurisdiction except when a cause of grave necessity or of great utility is present, as Elbel and Wig. say, or a gravely reasonable cause, as St. Alphonsus explains. The reason is that, although in that case, for the good of souls, the Church can well be considered to supply jurisdiction, nevertheless, with no just cause added, she is not presumed to wish to connive at mere freedom of priests.²

Query 6° Do excommunicated persons to be avoided, the suspended, the interdicted, the irregular, the degraded, schismatics, notorious heretics, apostates, etc., validly absolve in danger of death, when another priest is lacking?

Resp. Affirm. The reason is that all priests can absolve in the article of death, as is clear from Trent.³

Query 7° Can a simple priest absolve not only in the article, but also in the danger of death?

Resp. Affirm. The reason is that there is nearly the same necessity of the penitent in danger and in the article of death. Besides, it is clear from Canon Law that the article and danger of death are taken for the same thing.¹

But danger of this kind is considered present: 1° in a dangerous illness; 2° in time of plague; 3° in a difficult childbirth; 4° in an arduous surgical operation; 5° before a very dangerous navigation; 6° in battle, or in other similar circumstances.²

Query 8° Can a simple priest absolve a dying person, even when an approved confessor is present?

Resp. Doctors disagree among themselves; and St. Alphonsus, after weighing the reasons of each opinion, finally gives his judgment in these words: "Nevertheless, these things notwithstanding," namely the reasons for the affirmative brought by him, "I think one must not depart from the first opinion," namely the negative, which he calls very common, "on account of the authority of the Roman Ritual (On the Sacrament of Penance, near the beginning), where it is said thus: But if danger of death threatens, and an approved (note this) confessor is lacking, any priest can absolve from any censures and sins whatsoever. Therefore simple priests can absolve if an approved confessor is lacking; therefore they cannot if an approved one is present."³

Except: 1° if the approved confessor would not wish or would not be able to hear the Confession, because then it is the same as if he were lacking; 2° if the approved confessor is excommunicated by name, suspended, interdicted, irregular, degraded, a schismatic, notoriously a heretic, an apostate, because then the simple priest is to be preferred; 3° more probably, if the approved confessor were of another diocese, because with respect to the sick person he is by no means called approved; 4° probably, if the dying person so shuddered to manifest his crimes to the approved confessor - because, e.g., he is his enemy, or a blood relative, or the object of sin - that he would be in danger of confessing sacrilegiously; 5° if the sick person could not confess to the approved confessor without great difficulty or inconvenience, thus Mazzotta, alleged by St. Alphonsus and not disapproved; 6° if the approved confessor comes after the Confession with the simple priest has already begun; 7° if the approved confessor is the accomplice of the sick person in a shameful sin.⁴

What the law is, if there is question of reserved sins when one having the faculty is present, see n. 1403. q. 4°.

Query 9° Can a parish priest call in a parish priest of the same or of a different diocese for hearing Confessions in his parish?

Resp. 1° As regards a parish priest of the same diocese, although by force of his office he has special jurisdiction only for his own parish, nevertheless from the almost universal custom he can hear Confessions even in the whole diocese, unless the Bishop decrees otherwise. Nevertheless the proper customs of places must be consulted.

Resp. 2° As regards a parish priest of a different diocese, various opinions are brought, as Benedict XIV says. Those who affirm argue from Trent, because a parochial benefice would serve for universal approbation. Others deny, whose opinion, St. Alphonsus says, receives strength from the Response of the Sacred Congregation of the Council, December 3, 1707. - Benedict XIV admits the first opinion in those places where such a custom exists.

Query 10° Can a priest approved by the Bishop hear the Confessions of the faithful without the leave of the parish priest?

Resp. 1° As regards liceity, neg., if Confessions are heard in a Church subject to the parish priest. The reason is that due order altogether requires that, since the parish priest is the immediate Superior in his Church, leave to exercise sacred ministries there be sought from him. Nevertheless the leave of the parish priest is not required for hearing Confessions in the Chapel of Regulars or of Nuns, but the leave of the Superior or Superiorissa of the place suffices.

Resp. 2° As regards validity, it is certain according to all that the license of the parish priest is not required outside the case of annual Confession. Indeed neither is it required for annual Confession, at least per se, or by common law. This is clear from the common doctrine of Theologians against some, and also from the present custom and universal practice of the Church, as Benedict XIV testifies, and as is clear from the declaration of S. C. de P. F., July 2, 1827. - But if somewhere that custom is not in force, nevertheless the Confessions must be held valid, unless the Bishop expressly contradicts; for if he is silent, he seems to consent to the universal custom of the Church.

Query 11° Does a delegate validly and licitly absolve after the elapsed term of a delegation to be renewed every year, e.g. if a crowd of penitents should flow together to some great solemnity?

Resp. 1° He absolves invalidly per se, i.e. by reason of jurisdiction, because in fact he has none. Nevertheless he will probably absolve validly by reason of common error, on account of which the Church is considered to supply for the good of souls.

Resp. 2° The priest sins gravely per se if he knowingly does this; the reason is that he exercises the function of confessor without legitimate authority; and, although then the Church supplies, he is nevertheless guilty because he unduly compels her to supply.

Query 12° Can a priest approved in some place validly hear the Confessions of pilgrims coming there?

Resp. 1° Affirm. absolutely as regards regular confessors, who have this special privilege from the Holy Apostolic See. - See the Constitution Superna of Clement X.

Resp. 2° Also affirm. as regards secular priests; the reason is that such is the custom having force from the tacit consent of Ordinaries, which is equivalent to ratihabition in the present. - Thus the more common Theologians and Canonists.

Query 13° Can a Bishop, under penalty of invalidity, prohibit diocesan subjects from going to confess outside the diocese?

Resp. Negatively, whether they go to confess outside the diocese to regular confessors, who have the privilege of hearing the Confessions of all the faithful coming from anywhere, or whether they confess in another diocese to secular priests. The reason is that, with the present custom of absolving pilgrims standing, these are no longer to be said to be absolved from the tacit consent of their Ordinaries, but from the will of the Church, which, by approving such a custom, grants to all approved confessors jurisdiction over pilgrims presenting themselves at their tribunal, excepting only those who go elsewhere in fraud of reservation. (18) p. 419.

Query 14° Can a simple priest absolve those sailing on the Ocean, or from whom must approbation be obtained?

Resp. 1° He cannot absolve per se, unless in probable danger of death, as was said above; because a priest of this kind outside that case lacks every jurisdiction.

Resp. 2° The approbation of the Bishop of the place whence the ship sets sail is required and suffices, and the faculty endures until it reaches a place where another ecclesiastical Superior possessing jurisdiction has been established. Thus S. C. O., March 17, 1869.

Query 15° Can military Chaplains absolve them everywhere without the approbation of the Bishop of the place?

Resp. 1° Affirm., if they have been specially delegated by the Supreme Pontiff to the spiritual care of soldiers, or by a major Chaplain approved by the Pope.

Resp. 2° But if they lack this special delegation, they can indeed hear Confessions in the diocese of the approving Bishop, and also outside it on the road and in camps from the tacit consent of the Bishops, as is clear from universal custom; nevertheless they cannot validly absolve in stations nor in garrisons without the license of the Bishop of the place, because they have no jurisdiction. This is clear from various Declarations of the Sacred Congregation, which P. Zacharia reports apud Lacroix. See also St. Alphonsus.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 80 passages

Ch. I, Question II: Concerning the Power of Jurisdiction

n. ¶3221.

St. Thomas, q. 8, a. 4; q. 19, a. 5-6; q. 20.

n. ¶3222.

I. Opinions to be avoided. - Some older theologians, such as Durandus, held that jurisdiction is given by ordination itself, although they acknowledged that its use is bound by the prohibition of the Church: this opinion is commonly rejected. - Certain Jansenists, in the Synod of Pistoia, going further, asserted that it is fitting, but not necessary for the validity of absolution, that the confessor possess jurisdiction. This was condemned by Pius VI in the bull Auctorem fidei, n. 37, as false, rash, pernicious, erroneous.

n. ¶3223.

II. Thesis. For valid absolution, besides the power of order, by divine law, there is required the power of jurisdiction, which is not received by force of ordination alone, but by concession of ecclesiastical superiors.

n. ¶3224.

This is certain from the Council of Trent explicitly declaring it, sess. 14, c. 7; which manifestly teaches three things: a) that a priest (who has the power of order) can lack jurisdiction over some faithful; b) that in such a case absolution imparted to the same is invalid; c) that jurisdiction over penitents is twofold: ordinary and subdelegated, by which it is confirmed that it is diverse from the power of order, which is the same in all, conferred through the sacrament of order.

n. ¶3225.

The thesis is proved: 1) From the very nature of the sacrament of Penance, which was instituted to be exercised by way of judgment. For judgment cannot be validly exercised except upon a subject, who has been subjected to the authority or jurisdiction of the judge by a legitimate superior; otherwise the judge could not oblige nor urge the execution of judgment. But a priest does not have subjects except through jurisdiction legitimately conferred. Therefore from the very nature of the sacrament, and therefore by divine law, the power of jurisdiction is required for validity itself.

n. ¶3226.

Thus juridical knowledge and aptitude for judging do not suffice in a human judge, but for use jurisdiction is required, or deputation to determinate matter, determinate subjects, determinate persons; indeed not every judge can know every cause, but each one knows those causes which explicitly or implicitly are assigned to him by a legitimate superior, and only for determinate subjects.

n. ¶3227.

From the practice of the Church, by which the power of the keys is exercised in a judicial mode, and from the beginning bishops absolved their own subjects; later, however, when the number of penitents was increasing, priests also did so, but designated by the bishop. This is confirmed from the Fourth Lateran Council; Florence, decree for the Armenians; Trent, sess. 14, c. 3 and 7; and from the bull Auct. Fidei, n. 37.

n. ¶3228.

By reason, from St. Thomas, q. 8, a. 4: The minister of Penance imposes conditions for obtaining remission; whence he ought to impose on the penitent something to be done, and he does not absolve except by binding the penitent to doing something. But command does not belong to someone over another unless he have power over him, namely authority and jurisdiction. Therefore a priest cannot absolve unless he has jurisdiction over the penitent.

n. ¶3229.

III. They object that a complete power of absolving, and therefore jurisdiction, was conferred by Christ upon the Apostles in these words: Receive the Holy Spirit; whose sins you shall remit, etc.; but the same words are repeated to newly ordained priests; therefore they also receive the same power of absolving by force of ordination. - Resp.: The Apostles did not receive jurisdiction through the aforesaid words, but by force of the intention of Christ, which is manifested through the words: As the Father has sent Me, so I send you. Whence, although the words: Receive... are said to newly ordained priests, they do not thereby receive the power of jurisdiction, which, moreover, the Church does not intend to concede by these words.

n. ¶3230.

IV. Corollaries. - 1) Jurisdiction, while in the other sacraments it is required only for licit administration, is required for valid absolution: for the other sacraments are not conferred by way of judgment, nor are they a judicial act upon subjects, whence of themselves they do not demand jurisdiction (St. Thomas, q. 8, a. 4).

n. ¶3231.

Jurisdiction, since it is conferred with the mission of a superior, can be limited in various ways as regards time, place, persons, or causes, as is established from the whole history and practice of the Church, and as the Council of Trent sanctioned, sess. 14, can. 11. From this comes the use of reserving sins.

n. ¶3232.

Jurisdiction is also required for absolving from venial sins, whatever some once said. This is now altogether certain from can. 872 together with can. 874.

n. ¶3233.

A superior, e.g., the Roman Pontiff, can be absolved, because as a sinner he is inferior before God; whence although someone cannot have jurisdiction over him as superior, nevertheless he can have it over him as a private person, by the authority of God, in whose name judgment and absolution are given, and who alone is the principal cause of remission.

n. ¶3234.

And nevertheless the Pontiff cannot absolve himself, because for judgment two distinct persons are required: a subject guilty party, and a judge; but someone cannot be subject to himself. But the Pontiff can designate someone in the name of God to be superior and judge over himself as a private person sinning. This indeed is impossible in the external forum, because there all things are done in the name of the superior who is the principal judge and legislator, and therefore a superior cannot designate someone to act in his own name and authority against himself, just as he cannot excommunicate or judge himself (q. 20, a. 3).

n. ¶3235.

It can also be added that absolution is principally from the power of order and only consequently regards jurisdiction; moreover, as regards the power of order, all priests are equal, not as regards jurisdiction.

Ch. II, Q. I, Ordinary or Delegated

n. ¶3236.

St. Thomas, q. 8, a. 4 and 5; q. 20, a. 1.

n. ¶3237.

I. All jurisdiction is either ordinary or delegated: "Ordinary jurisdiction is that which by the law itself is attached to an office (accepted in the strict sense from can. 145); delegated jurisdiction is that which is (legitimately) committed to a person" (can. 197).

n. ¶3238.

These, in order to confession, differ in a threefold way:

n. ¶3239.

Ordinary jurisdiction is given by a superior from mission to some pastoral office by which someone becomes as it were the proper priest of subjects; delegated jurisdiction is given from a special personal concession.

n. ¶3240.

Ordinary jurisdiction is exercised validly over subjects everywhere on earth (can. 881); delegated jurisdiction cannot be exercised outside the territory for which it was conceded (unless jurisdiction has been obtained there from the Ordinary of the place).

n. ¶3241.

Ordinary jurisdiction, according to can. 199, of itself can be delegated to others wholly or in part, unless something else is expressly provided by law; delegated jurisdiction of itself cannot be subdelegated unless a special concession of the delegating person accedes.

n. ¶3242.

II. Concerning ordinary jurisdiction for confessions, canon 873 is valid:

n. ¶3243.

"1. Ordinary jurisdiction for hearing confessions is enjoyed:

n. ¶3244.

a) for the universal Church, besides the Roman Pontiff, by Cardinals of the Holy Roman Church (without restriction, as to all persons and cases, except however censures most specially reserved to the Holy See, and those which are annexed to the revelation of a secret of the Holy Office, according to can. 239, § 1: thus, for example, reserved are those which are brought against those who cast away the consecrated species, lay violent hands on the Roman Pontiff, absolve an accomplice from a base sin);

n. ¶3245.

b) for his own territory, each Ordinary of the place (also the vicar general or capitular, vicar or prefect or apostolic administrator), and the pastor and others who are in the place of the pastor (rector of a quasi-parish; parochial vicar, that is, rector of a parish which by full right is united to a moral person; administrator of a parish or vicar economus, vicar substituted for a pastor long absent with the consent of the bishop, assistant vicar if he supplies in all things for a pastor unequal to the task: thus according to can. 471-475; likewise sometimes a chaplain of soldiers; not however of itself an assistant vicar, nor cooperating vicars).

n. ¶3246.

A pastor, besides subjects, cannot hear and absolve penitents outside his own territory; nevertheless by particular law he generally obtains delegated jurisdiction for the whole diocese.

n. ¶3247.

Among those who are in the place of a pastor, some add the rector of a diocesan seminary as regards his own subjects, on account of can. 1368; but this does not seem so, because the Church is not judged to concede jurisdiction when she prohibits its being exercised habitually over subjects, as can. 890 does.

n. ¶3248.

"2. This same jurisdiction is enjoyed also:

n. ¶3249.

a) by the penitentiary canon¹ even of a collegiate church (a fortiori of a cathedral), according to the norm of can. 401, § 1 (that is, with power of absolving even from sins and censures reserved to the Bishop - whether by law or personally by that bishop - in the diocese, strangers, and diocesan persons even outside the territory of the diocese);

¹ Nevertheless for this reason he does not have power of absolving religious women, as is established from can. 876, § 1.

n. ¶3250.

b) and by exempt religious Superiors for their own subjects, according to the norm of the constitutions.

n. ¶3251.

A religious Superior can also be of an exempt lay religion, provided the superior himself is a priest.

n. ¶3252.

"3. This (ordinary) jurisdiction ceases by loss of office, according to the norm of can. 183, and after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict."

n. ¶3253.

Therefore before sentence, an excommunicated person absolves validly, even licitly if he is tolerated and requested by a member of the faithful (can. 2261).

n. ¶3254.

III. Concerning delegated jurisdiction for confessions, canons 874 and 875 are valid.

n. ¶3255.

Canon 874: "1. Delegated jurisdiction for receiving the confessions of any persons whatever, whether seculars or religious, is conferred on priests, both secular and religious, even exempt, by the Ordinary of the place in which confessions are heard; but religious priests are not to use it without at least the presumed license of their Superior,² the prescription of can. 519 however remaining firm (that is, in the case in which a religious penitent approaches for the quiet of his conscience³).

² Otherwise they can sin, yet they validly absolve.

³ Cf. below, pp. 31 and 33.

n. ¶3256.

"2. Ordinaries of places are not to concede jurisdiction for hearing confessions habitually to religious who are not presented by their proper Superior; but to those who are presented by their proper Superior, they are not to deny it without grave cause, the prescription of can. 877 remaining firm (concerning the examination of fitness)."

n. ¶3257.

Canon 875: "1. In an exempt clerical religion, for receiving confessions (even outside the house) of professed members, novices, and others concerning whom in can. 514, § 1 (namely, those who dwell day and night in a religious house for the sake of service, education, hospitality, or infirm health, as long as they dwell habitually), delegated jurisdiction is also conferred (independently of the approval of the Ordinary) by their proper Superior, according to the norm of the constitutions; and it is permitted to him to concede it even to priests from the secular clergy or from another religion" (even those whom the proper Ordinary has not approved).

n. ¶3258.

"2. In an exempt lay religion, the Superior proposes the confessor, who nevertheless must obtain jurisdiction from the Ordinary of the place in which the religious house is located."

n. ¶3259.

Hence a) the bishop concedes jurisdiction for absolving religious even exempt, or pilgrims who confess in his diocese, and therefore the jurisdiction of the confessor is affected by diocesan reservations, as is confirmed by the response of the Commission of Interpretation, 24 Nov. 1920; - unless, however, he has also obtained regular jurisdiction from the exempt superior for his own subjects;

n. ¶3260.

b) the same priest approved in one diocese cannot validly absolve in another, unless he receives jurisdiction from the bishop of this diocese;⁴

⁴ Thus, from the decree of the Provincial Council of Malines of the year 1920, under n. 203, "to priests approved by their Ordinary for hearing confessions, who dwell in a somewhat stable way, that is at least for a week, even only during vacation time, in parishes of districts or deaneries contiguous to a foreign diocese, it is conceded that in deaneries of the foreign diocese bordering their own deanery, within the limits of the province of Malines, they may validly and licitly hear sacramental confessions. Yet foreign priests are not to use this faculty unless they are legitimately called by those whom it concerns."

…and 40 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 92 passages

Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question First: On the Pow…, Article II: On the Power of Jurisdiction · Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question Second: On the Gr…, Art. I, Ordinary or Delegated

Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question First: On the Pow…, Article II: On the Power of Jurisdiction

S. Th., Suppl., q. 8, a. 4; q. 19, a. 5-6; q. 20.

n. 576.

576. Opinions to be avoided. - Some older theologians, such as Durandus, held that jurisdiction is given by ordination itself, although they acknowledged that its use is bound by the prohibition of the Church; this opinion is commonly rejected. - Certain Jansenists, in the Synod of Pistoia, going further, asserted that it is fitting, but not necessary for the validity of absolution, that the confessor be endowed with jurisdiction. This was condemned by Pius VI in the bull Auctorem fidei, a. 37, as false, rash, pernicious, erroneous.

577. Thesis. For valid absolution, besides the power of order, by divine right there is required the power of jurisdiction over the penitent, which is not received by force of ordination alone but by the concession of ecclesiastical superiors. - This is certain from the Council of Trent explicitly declaring it, sess. 14, c. 7; which manifestly teaches three things: a) that a priest, who has the power of order, can lack jurisdiction over some faithful; b) that in such a case absolution imparted to them is invalid; c) that jurisdiction over penitents is twofold: ordinary and subdelegated, by which it is confirmed that it is diverse from the power of order, which is the same in all, conferred through the sacrament of order.

It is proved: 1) From the very nature of the sacrament of Penance, which was instituted to be exercised by way of judgment. For a judgment cannot be validly exercised except over a subject, who has been subjected to the authority or jurisdiction of the judge by a legitimate superior; otherwise the judge could neither oblige nor urge the execution of the judgment. But a priest does not have subjects except through legitimately conferred jurisdiction. Therefore from the very nature of the sacrament, and therefore by divine right, the power of jurisdiction is required.

Thus juridical knowledge and aptitude for judging do not suffice in a human judge, but for use there is required jurisdiction or deputation to determinate matter, determinate subjects, determinate persons; indeed any judge cannot take cognizance of any cause whatever, but each one takes cognizance of those causes which are explicitly or implicitly assigned to him by a legitimate superior, and only for determinate subjects, namely, of his own jurisdiction.

From the practice of the Church, by which the power of the keys is exercised in a judicial manner, and from the beginning bishops absolved their own subjects, but afterward, with the number of penitents increasing, priests also did so, but those designated by the bishop. This is confirmed from Lateran Council IV; Florence, decree for the Armenians; Trent, sess. 14, c. 3 and 7; and from the bull Auctorem Fidei, n. 37.

By reason, from St. Thomas, q. 8, a. 4: The minister of Penance imposes conditions for obtaining remission; hence he must impose on the penitent something to be done, and he does not absolve except by binding the penitent to doing something. But command does not belong to someone over another unless he has power over him, namely authority and jurisdiction. Therefore a priest cannot absolve unless he has jurisdiction over the penitent.

They object that the complete power of absolving, and therefore jurisdiction, was conferred by Christ upon the Apostles in these words: Receive the Holy Spirit; whose sins you shall remit, etc.; but the same words are repeated to newly ordained priests; therefore they too receive the same power of absolving by force of ordination.

Resp.: The Apostles did not receive jurisdiction through the aforesaid words, but by force of the intention of Christ, which is manifested through the words: As the Father has sent me, I also send you. Hence although the words: Receive... are said to newly ordained priests, they do not from this receive the power of jurisdiction, which otherwise the Church does not intend to grant by these words.

578. Corollaries. - 1. Jurisdiction, while in other sacraments it is required only for licit administration, is required for valid absolution: for the other sacraments are not conferred by way of judgment, nor are they judicial acts upon subjects, whence they do not of themselves demand jurisdiction (q. 8, a. 4).

Jurisdiction, since it is conferred by the mission of a superior, can be limited in various ways as to time, place, persons, or causes or sins, as is clear from the whole history and practice of the Church, and as the Council of Trent sanctioned, sess. 14, can. 11. Thence comes the use of reserving sins, which has existed in the Church from ancient times.

Jurisdiction is also required for absolving from venial sins, whatever some once said. This is now altogether certain from can. 872 together with can. 874.

A superior, e.g., the Supreme Pontiff, can be absolved, because as a sinner he is inferior before God; hence although someone cannot have jurisdiction over him as superior, nevertheless he can have it over him as a private person, by the authority of God, in whose name judgment and absolution are given, and who alone is the principal cause of remission. And yet the Pontiff cannot absolve himself, because for judgment two distinct persons are required: the subject accused, and the judge; but someone cannot be subject to himself. But the Pontiff can designate someone in the name of God to be his superior and judge as of a private person sinning. This indeed is impossible in the external forum, because there all things are done in the name of the superior, who is the principal judge and legislator; and therefore a superior cannot designate someone so that in his name and by his authority he would act upon the superior himself, just as neither can he excommunicate or judge himself (q. 20, a. 3).

It can also be added that absolution belongs principally to the power of order and only consequently regards jurisdiction; but as to the power of order all priests are equal, not as to jurisdiction.

Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question Second: On the Gr…, Art. I, Ordinary or Delegated

S. Th., Suppl., q. 8, a. 4 and 5; q. 20, a. 1.

579. Jurisdiction is one thing ordinary, another delegated. - "Ordinary jurisdiction is that which is attached to an office by the law itself, office being taken in the strict sense from can. 145; delegated jurisdiction is that which is legitimately committed to a person" can. 197.

These, in order to confession, differ in three ways:

Ordinary jurisdiction is given by a superior from mission to some pastoral office by which someone becomes, as it were, the proper priest of the subjects; delegated jurisdiction is from a special personal concession.

Ordinary jurisdiction is validly exercised everywhere on earth over subjects (can. 881); delegated jurisdiction cannot be exercised outside the territory for which it was granted, unless jurisdiction has there been obtained from the Ordinary of the place.

Ordinary jurisdiction, according to can. 199, can of itself be delegated to others wholly or in part, unless something else is expressly provided by law; delegated jurisdiction of itself cannot be subdelegated unless a special concession of the one delegating is present.

580. Principle I. Who have ordinary jurisdiction for confessions. - On this matter can. 873 holds:

"§ 1. By ordinary jurisdiction for receiving confessions, for the universal Church, besides the Roman Pontiff, the Cardinals of the Holy Roman Church are endowed; for his own territory each Ordinary of a place, and parish priests and others who are in the place of a parish priest."

Cardinals, from their promotion in consistory, are endowed with jurisdiction without restriction, as to all persons and cases, except nevertheless censures most specially reserved to the Holy See, and those which are attached to revelation of the secret of the Holy Office, according to can. 239, § 1. Thus, for example, those are reserved which are brought against those who cast away consecrated species, lay violent hands upon the Roman Pontiff, or absolve an accomplice from a shameful sin.

The Ordinary is also the vicar general or capitular vicar; a vicar, prefect, or apostolic administrator.

A parish priest, apart from subjects, cannot hear penitents and absolve outside his own territory; nevertheless by particular law he generally obtains delegated jurisdiction for the whole diocese.

In the place of a parish priest are the rector of a quasi-parish, a parochial vicar or curate, i.e., the rector of a parish which is united by full right to a moral person, an administrator of a parish or vicar economus, a vicar substituted for a parish priest long absent with the consent of the bishop, an assistant vicar if in all things he supplies for an unequal parish priest: thus according to can. 471-475;¹ - likewise sometimes the chaplain of soldiers for his subjects; - but not of itself an assistant vicar, nor assistant vicars.

¹ Some add the rector of a diocesan Seminary as to his subjects because of can. 1368; but this can be doubted, because the Church is not judged to grant ordinary jurisdiction when she prohibits it from being exercised habitually over subjects (can. 891).

"§ 2. The penitentiary canon also enjoys this same jurisdiction, even of a collegiate church, a fortiori of a cathedral church, according to can. 401, § 1, and exempt religious superiors for their subjects, according to the constitutions."

The penitentiary has the power of absolving even from sins and censures reserved to the bishop - whether by law or personally by that bishop - strangers in the diocese, and diocesans also outside the territory of the diocese. Nevertheless he does not of himself have jurisdiction over religious women (can. 876, § 1). A religious superior can also be of an exempt lay religion, provided the superior himself is a priest.

"§ 3. This jurisdiction, ordinary jurisdiction, ceases by loss of office, according to can. 183, and after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict."

Therefore before sentence an excommunicated person validly absolves, even licitly if he is tolerated and requested by one of the faithful (can. 2261).

581. Principle II. Who have delegated jurisdiction for confessions. - Here canons 874 and 875 hold.

a) Canon 874: "§ 1. Delegated jurisdiction for receiving the confessions of any persons, whether seculars or religious, is conferred on priests, whether seculars or religious even exempt, by the Ordinary of the place in which confessions are received; but religious priests should not use the same without at least the presumed license of their superior,2 while nevertheless the prescription of can. 519 remains firm," i.e., in the case in which a religious penitent approaches for the quiet of his conscience, as will be said in n. 588, A.

"§ 2. Ordinaries of places should not grant jurisdiction for hearing confessions habitually to religious who are not presented by their proper superior; but to those who are presented by their proper superior, they should not deny it without grave cause, while the prescription of can. 877 remains firm" concerning the examination of fitness.

b) Canon 875: "§ 1. In an exempt clerical religion, for receiving, even outside the house, the confessions of professed members, novices, or others of whom can. 514, § 1 speaks, namely, those who live in a religious house day and night by reason of service, education, hospitality, or infirm health as long as they habitually reside there, delegated jurisdiction is conferred also, independently of the approval of the Ordinary, by their proper superior, according to the norm of the constitutions; to whom it is permitted to grant it even to priests from the secular clergy or from another religion," even those whom the proper Ordinary has not approved.

"§ 2. In an exempt lay religion, the superior proposes the confessor, who nevertheless must obtain jurisdiction from the Ordinary of the place in which the religious house is found."

Hence: a) The bishop grants jurisdiction for absolving religious, even exempt religious, or pilgrims who confess in his diocese, and therefore the jurisdiction of the confessor is affected by diocesan reservations, as is confirmed by the response of the Commission of Interpretation, Nov. 24, 1920; - unless nevertheless he has also obtained regular jurisdiction from the exempt superior for his subjects.

b) The same priest approved in one diocese cannot validly absolve in another, unless he receives jurisdiction from the bishop of this diocese.1

c) The bishop can grant jurisdiction not only to his subjects, but also to outside priests for receiving confessions, not in their diocese but in his own.

Sometimes by mutual consent among themselves, the Ordinaries of neighboring dioceses delegate confessors of districts adjacent to their diocese. Thus from the decree of the provincial Council of Mechlin of the year 1920, under n. 203, "to priests approved by their own Ordinary for hearing confessions, who reside in a stable manner, i.e., at least for a week, even only for vacation time, in parishes of districts or deaneries of another diocese contiguous to their own diocese, it is granted that in deaneries of the other diocese bordering their own deanery, within the boundaries of the province of Mechlin, they may validly and licitly receive sacramental confessions. Nevertheless, let outside priests not use this faculty unless they are legitimately called by those whom it concerns."

Diss. I, Chapter I — Propositions condemned by the Holy See · Diss. III, Chapter II — On the jurisdiction of the minister of the sacrament of Penance

Otherwise they can sin; nevertheless they absolve validly.

…and 52 more passages — all of them are listed on the topic page.

Concina, Compendium

Daniele Concina, O.P. — 31 passages

Diss. I, Chapter I — Propositions condemned by the Holy See

n. LI.

LI. Leander, tract 5, disputation 31, question 14: “Whether every priest, in no way exposed, can validly absolve a penitent who in good faith confesses venial and mortal sins together? … I answer more probably that he can in each case validly absolve from mortal sins, although the penitent, being made more certain that that priest has no jurisdiction over mortal sins, is bound to confess again.”

Diss. III, Chapter II — On the jurisdiction of the minister of the sacrament of Penance

n. I.

I. QUESTION I. Is a priest alone the minister of the sacrament of Penance? ANSWER. The innovators deny it — the Waldenses, Hussites, Wycliffites, and Lutherans — whose errors Trent condemned, session 14, canons 9 and 10. It is therefore a dogma of faith that bishops and priests alone can administer the sacrament of Penance. It is established from John 20: Receive ye the Holy Ghost: whose sins you shall forgive, they are forgiven them; and whose sins you shall retain, they are retained. Which words the perpetual tradition of the Church has declared to pertain to the Apostles alone and their successors, laymen being excluded. The testimonies of the Fathers and of the Councils which confirm this tradition are obvious, and therefore I pass them over.

n. II.

II. Fr. Claude La Croix, Book 6, part 2, no. 1485, teaches that, although the more common and more probable opinion be that a layman, a cleric being absent, does not even in the article of death validly absolve from censures, the opposite nevertheless, he subjoins, grave authors defend probably, whom Diana and Moya relate, because they think that the pious mother Church grants the same. Whence Sánchez infers that a layman in such a case is bound to absolve from censures. Whether these pious figments of Probabilism be arbitrary, and afford a handle to the heretics for extending this faculty to absolving even from sins, let the more learned judge. From the piety of mother Church all things can be inferred, unless a certain rule be prescribed. The aforesaid opinion I reject as false. But grave authors teach it probably. These authors, who probably call the common doctrine of the Church into controversy, are not grave to me.

n. III.

III. QUESTION II. Of how many kinds is priestly power? ANSWER. Twofold: one of order, which is conferred by ordination; the other of jurisdiction, which is the faculty of ruling subject souls and of governing the people, as Trent, session 14, chapter 7, declared.

n. IV.

IV. QUESTION III. Whether a Regular presented to the bishop and unjustly rejected acquires jurisdiction and validly absolves? ANSWER. All confess that the bishop's approbation is necessary to all priests, both secular and regular, that they may validly receive the confessions of seculars. The opposite opinion was condemned by Alexander VII, proposition 12: He satisfies the precept of annual confession who confesses to a Regular presented to the bishop but unjustly reproved by him. Regulars therefore must needs be approved by the bishop. Those approved by the bishop of one diocese are not approved for other dioceses: the contrary opinion has been disapproved both by the Gallican Clergy and by Alexander VII in the decree to Henry of Angers. Those approved for seculars are not approved for nuns; and the opposite opinion Gregory XV disapproved in the year 1621. Regulars approved for one monastery cannot without a new approbation hear the confessions of the nuns of another monastery.

n. V.

V. Regulars, even though laureate and learned, are bound to undergo the bishop's examination as often as it shall have seemed expedient to bishops. As regards this therefore, let them employ the bishop's prudence.

n. VI.

VI. Concerning Regulars approved by a bishop without the presentation of their regular superiors, and these being unaware or unwilling, authors dispute on either side. Very many theologians teach that such Regulars so approved absolve invalidly, and not merely unlawfully. On the contrary the Salmanticenses, several authors being cited, defend that they absolve validly but unlawfully. They dispute also whether such Regulars so approved sin mortally in hearing confessions. The disputations concerning valid or invalid absolution being dismissed, I say that Regulars who obtain this approbation with their superiors unaware or unwilling are not called by God to this task, but are intruders. What corollaries flow hence are known to all. Most imprudently would bishops approve Regulars against the will of their superiors, at least unless, the cause of the opposition being known, it were openly established that the superiors resisted unjustly. For any human law whatsoever sometimes admits its own exceptions.

n. VII.

VII. Regulars approved in one diocese can absolve the faithful of another diocese who come to them, as the common opinion teaches, and universal custom obtains. Superiors also of Regulars need approbation — as Provincials, Priors, Guardians, and so forth — because Trent excepts no one. Wherefore the opposite opinion is utterly false. They can nevertheless absolve without approbation the seculars dwelling in their houses as of the household, otherwise if they dwell there not continuously and not as of the household and do not enjoy the table. Regulars making a journey, if confessors of their own Order be lacking, ought to confess to an approved priest, because this is the safer opinion.

n. VIII.

VIII. QUESTION IV. What is ordinary and what delegated jurisdiction? ANSWER. The first belongs to someone by reason of his office, that is, to the curate of the souls of whom he is the pastor. Of this kind are the Pope, the bishop, the abbot, the parish priest, the perpetual vicar of a bishop, a capitular vicar, the supreme Penitentiary, a cardinal in the church of his own title, the vicars general of the Pope, legates a latere in the province of their legation. Among Regulars there are Generals, Provincials, and local Superiors. All these come under the name of Ordinary, and by the name of one's own priest. Hence the Pope has no Ordinary, since he is the supreme pastor of all. The Ordinary of a bishop is the Pope, and of a parish priest the bishop. An archbishop has the ordinary faculty of absolving sacramentally while he visits the diocese of a suffragan.

n. IX.

IX. Delegated jurisdiction is that which is granted to some priest, not by reason of the cure of souls, but from the will of him who has ordinary jurisdiction and can lawfully delegate it, if he to whom the jurisdiction is to be delegated be capable: for the suspended and excommunicated who are not tolerated are not capable. A bishop can delegate, but not a parish priest, because he who cannot delegate jurisdiction over his own sheep to a priest not approved by his own bishop.

n. X.

X. Priests not approved cannot absolve from venial sins, as Innocent XI declared in the decree for frequent communion given in the year 1679. In this decree the Fathers of the Society also are comprehended. Wherefore Fr. La Croix is deceived, who at no. 1553 excepts the Jesuits; the decree nevertheless he did not ignore.

n. XI.

XI. Fr. Viva, question 8, article 1, no. 5, says: “Innocent XI in the year 1679 willed that bishops should not permit confession of venial sins to be made to a simple priest not approved by the bishop or Ordinary. … I think nevertheless with the Cardinal and others in La Croix that it is not invalid, and that the sacrament would not be exposed to the danger of frustration. For since it is probable that jurisdiction is conferred immediately upon a priest by Christ the Lord, and that with probable jurisdiction the sacrament of Penance is validly conferred, as we shall say in the ninth question, therefore the sacrament is validly conferred by a simple priest absolving only from venial sins, or from mortal sins otherwise absolved.”

n. XII.

XII. The Supreme Pontiff forbids that simple priests be able to absolve from venial sins; Fr. Viva probably teaches the opposite, because priests have jurisdiction immediately from Christ the Lord. Behold how true is Probabilism adverse to the power of the Pontiffs, of bishops, and consequently of princes. Assuredly priests have power from Christ the Lord, but by force of the ecclesiastical hierarchy subject to the Pontiff and the bishop. Otherwise it would have to be said, by force of the doctrine of Fr. Viva, that simple priests can absolve also from mortal sins not absolved. What displeases more is the progress of Probabilism. First they say that a simple priest can absolve from venial sins; then from mortal sins confessed; then from mortal sins invincibly forgotten, as the Salmanticenses, tract 6, chapter 11, no. 61; and at last from mortal sins confessed in good faith to a simple priest, as with other probabilists Leander, tract 5, disputation 31, question 14, teaches. All these things are false, and disapproved by Innocent XI.

n. XIII.

XIII. QUESTION V. Whether every priest in the article of death has jurisdiction of absolving from sins and from censures? ANSWER. In the article of death, if an approved priest be present, a simple priest cannot impart absolution, because no necessity urges. It must be said otherwise if the approved one were unwilling to hear the confession, or if the simple priest had already begun to hear the confession.

n. XIV.

XIV. To mendicants approved by the Ordinary there is delegated jurisdiction of absolving from all cases and censures reserved to the Pope, the cases of the Bull In Coena being excepted, and six others reserved by Clement VIII outside the city and within Italy. But Benedict XIV reserved to himself and his successors the faculty of absolving an accomplice of a crime against the sixth precept, as will be said below.

n. XV.

XV. Those who have ordinary power can, say authors commonly, exercise it in another's diocese with their own subjects, provided that in the formula of the faculty there be no limitation for such a place, as is wont frequently to happen. But custom is to be regarded.

n. XVI.

XVI. QUESTION VI. Who is the proper minister of vagrants, of pilgrims, and of those who have a domicile in a twofold parish? ANSWER. Those are called vagrants who have no proper domicile; their parish priest is he under whom they are found at the time of confession. Those who go on pilgrimage, although they have a proper domicile, can confess to any approved confessor to whom they turn aside. Those who have a twofold domicile in a twofold parish can confess to either parish priest.

n. XVII.

XVII. Jurisdiction is not acquired by custom alone, unless there accede the consent, at least tacit, of the superior. Nor does a presumed or interpretative consent suffice. A confessor excommunicated and not tolerated loses all jurisdiction. One excommunicated and tolerated absolves unlawfully but validly. That a parish priest excommunicated and not tolerated, but not deprived of his parish, can grant to another that he assist at a marriage, but not delegate jurisdiction of hearing confessions, very many teach; because, they say, to assist at a marriage is not an act of jurisdiction, but of testimony. But this opinion is false. What? Is assisting at a marriage not an act of jurisdiction? All men therefore indiscriminately will be able to be ministers of matrimony, just as they can be witnesses. But this is absurd. Neither therefore can the aforesaid parish priest grant. A priest absolving one excommunicated ought to send before absolution from censures before he absolve from sins.

n. XVIII.

XVIII. Bishops can from a just cause limit the jurisdiction of hearing confessions in a church, before sunrise, after sunset, and of women. But without a just and reasonable cause they cannot limit this jurisdiction, at least in respect of Regulars. If nevertheless a bishop should limit it, even without a just cause, the limitation would hold, and the absolutions would be invalid, just as when without a just cause men are reproved, they remain reproved.

n. XIX.

XIX. QUESTION VII. Whether jurisdiction expires by the death of him who granted it? ANSWER. Jurisdiction delegated in this forum in general by the Supreme Pontiff does not cease by the death of the granter, as the common opinion teaches. But theologians dispute concerning jurisdiction granted by inferior prelates, by a bishop, and so forth. Very many affirm that it expires; but more commonly they teach that it continues, until either the predetermined time elapse, or it be revoked by the successor. And this they gather from common custom, the prelates consenting. Nor does it stand in the way that, the bishop being dead, his Vicar lacks power, because the Vicar general makes one tribunal with the bishop.

n. XX.

XX. A delegate cannot subdelegate, because a delegation is personal, granted to this person and not to another. Therefore he who receives it cannot communicate it to another. The contrary opinion, which some defend, is not approved by me.

n. XXI.

XXI. QUESTION VIII. Whether common error, a coloured title being lacking, is enough that jurisdiction be said to be conferred? ANSWER. Someone is a simple priest lacking all jurisdiction. Him all the faithful of some place hold as pastor or confessor. This is common error concerning the jurisdiction of that priest. But if a simple priest obtain from the bishop a parochial benefice, yet on account of some canonical impediment — suppose excommunication, or simony, or another obstacle — obtain it invalidly, and possess the parochial benefice; by force of this he is held by all as parish priest or curate. This is common error conjoined with a coloured title: for he possesses a title, namely the collation of a parochial benefice conferred by a lawful superior, namely by the bishop; but because the benefice was invalidly conferred, he possesses indeed a title, yet not a true but a false and apparent one, and therefore called coloured. But he who does not obtain a benefice, but by false letters feigns himself parish priest, has no title, not even a coloured one.

n. XXII.

XXII. The common opinion teaches that common error conjoined with a coloured title, by which someone is held as parish priest or curate, is enough for jurisdiction, so that such a man can validly absolve and administer the other sacraments: because on account of the public utility the Church in this case of a benefice conferred, though invalidly on account of an occult impediment, in fact confers jurisdiction, as the common opinion of theologians and canonists teaches.

n. XXIII.

XXIII. Fr. Viva with others teaches that even common error alone suffices, provided the error be not supine and gross but probable.

n. XXIV.

XXIV. The most celebrated of canonists, Fagnanus, Book 5, On the Crime of Forgery, chapter Supra eo, that he may prove that a coloured title conjoined with common error suffices for jurisdiction, adduces in support of canon law the civil law itself, namely the law Barbarius, where a slave, when he was thought free, by delegation pronounced sentence. But he rejects common error alone, defended by certain men.

n. XXV.

XXV. QUESTION IX. Whether doubtful and probable jurisdiction suffices? ANSWER. Some affirm it. And Fr. Viva teaches these things in his Course, question 8, article 2, nos. 1 and 2: “It seems not to be lawful to confect the sacrament of Penance with probable jurisdiction, at least when certain jurisdiction can be had. Nevertheless I think it lawful to absolve with probable jurisdiction. … Hence it follows that by Innocent XI in the first of his proscribed theses this opinion has not been condemned: BECAUSE HE OUGHT TO HAVE CONDEMNED IT OPENLY, if he had willed that not only in those things which pertain to the matter and form of the sacrament, but also in those which pertain to jurisdiction, we should follow the safer opinion, the probable being omitted, as many learned men reckon.”

n. XXVI.

XXVI. Unless all things deceive me, this opinion is contained in the first proposition condemned by Innocent XI. For in that condemned thesis mention is made neither of matter nor of form. There is a deep silence concerning these: the thesis is indefinite, and comprehends every opinion concerning the validity of the sacrament. Nor indeed can a reason be assigned why he should have condemned this and not that. Anyone can say: this probable opinion, the safer being forsaken, is condemned, but not that one; another would say: that one is condemned, but not this one; and in this fashion the pontifical decree would be illusory, and would condemn nothing. An indefinite proposition therefore, being condemned, comprehends every probable opinion operating in the sight of a safer one concerning the validity of the sacrament. But all men, even Fr. Viva, confessing it, jurisdiction pertains to the validity of the sacrament. Therefore a probable opinion concerning probable jurisdiction, the safer being forsaken, seems condemned.

n. XXVII.

XXVII. Fr. Viva replies that in the proscribed thesis there is condemned the use of a less safe opinion in those things which are adverse to ecclesiastical law. Which answer is altogether false, and disapproved by Fr. La Croix himself, Book 6, part 3, no. 15, page 3551; nay, he testifies that all disapprove it.

n. XXVIII.

XXVIII. Fr. Viva insists: “It is not probable that a hundred and thirty Doctors related by Gobat were deceived in a matter of so great moment, and are worthy of censure.” It is false that Gobat cites 150 Doctors, nay not even 100. Unless the brevity set before me hindered, I should wish to transcribe the words of Fr. Gobat; but see Vol. IX, Book 2, dissertation 2, chapter 5, no. 5. For the rest, even if Fr. Gobat cited six hundred probabilists, these being passed over, place must be given to the pontifical decree.

n. XXIX.

XXIX. They insist that the pious mother Church supplies, when a probable opinion concerning jurisdiction is present. I answer that the pious mother Church, through her own head Innocent XI, condemned this doctrine. Therefore she refuses to supply.

n. XXX.

XXX. The probabilists object that most grave authors — Suárez, Filliucci, Reginald, Lessius, Bonacina, Diana, and others whom Gobat cites — defend the use of probable jurisdiction. I answer that the aforesaid authors, like Fr. Gobat, wrote before Innocent XI condemned this opinion, and are therefore to be excused; but they are not in this to be followed.

Slater, Cases II

Thomas Slater, S.J. — 49 passages

Slater, Cases II, Penance, Case 7. Confessions on Board Ship · Slater, Cases II, Penance, Case 8. A Privilege of Regulars · Slater, Cases II, Penance, Case 9. A Regular's Approbation · Slater, Cases II, Penance, Case 16. Doubtful Jurisdiction

Slater, Cases II, Penance, Case 7. Confessions on Board Ship

Titius, a regular priest and missionary in a certain English diocese, was sent by his superiors with a scholastic and a lay brother to southern Africa to cultivate the vineyard of the Lord there. While he was awaiting the departure of the ship in a certain house of the Order, a question arose concerning Titius’s faculties for hearing confessions during the journey. Some Fathers thought that he already had everything required to hear the confessions both of his companions and of outsiders on the ship; others thought that he required a special delegation of the Father Provincial and that this sufficed; finally, others said that for outsiders he ought to seek faculties from the Bishop of the port from which the ship would sail. Hence it is asked:

What is required and sufficient so that Titius may hear the confessions of his companions during the journey?

Are the said companions bound to confess to him, and could Titius permit them to confess to any other priest?

What is to be said of the case?

Solution

What is requisite and sufficient to enable Titius to hear the confessions of his companions during the journey?

Regulars on a journey must confess to to a suitable companion, if they have one. It is commonly held that a priest is idoneus who is neither under censure nor irregularity, even though he has no special approbation.¹

1 St. Alphonsus, lib. vi, 575.

Are the said companions bound to confess to Titius, and could Titius grant them leave to confess to any other priest?

If Titius were not superior there would be no difficulty; his companions would be bound to confess to him as he is the only priest in the party. But by a decree of Clement VIII, May 26, 1593: “ Regular Superiors are not permitted to hear the confessions of their subjects except when the subjects have committed some reserved sin, or the subjects themselves spontaneously and of their own motion have requested it from them.” Hence some authorities think that if Titius is Superior of the party, his companions are under no obligation to confess to h m, and that they may confess even without special leave of Titius to any suitable priest. If Titius is Superior with the faculties of other local superiors, he can grant leave to his subjects to confess to any suitable priest.²

2 De Arcos, Appendix Theol. Moral, n. 53.

The case. Titius has all that is requisite and sufficient for hearing the confessions of his companions if he is idoneus, as we presume him to be. In order to be able to hear the confessions of externs on board ship he must have faculties either from the bishop of the diocese where he was last stationed, or from the bi hop of the port of embarkation, or from the bishop of any other place at which the ship touches. We presume that he had faculties in the diocese where he was stationed, so that he has all that is requisite for hearing the confessions of anybody who comes to him on board.³

3 Manual of Moral Theology, vol. ii, 187.

Slater, Cases II, Penance, Case 8. A Privilege of Regulars

Titius, the confessor of the pupils in a certain college of Regulars, during the vacation visits a house in another diocese which some of the pupils occupy, and one of them asks Titius to hear his confession. Titius agrees, but afterwards doubts the validity of the absolution given by him. Caius, a priest of the same Order who with a certain scholastic has charge of the pupils, tells that same pupil who wishes to confess that it is lawful to go to the secular priest who has the care of souls there. Hence it is asked:

What is required in the minister of Penance in order that he may lawfully and validly administer the sacrament?

To whom must or may Regulars confess, whether within their own house, in a house of the same Order that is not their own, or on a journey?

What is to be said of the case?

Solution

What is required in the minister of Penance in order that he may lawfully and validly administer the sacrament?

The minister of Penance in order to administer the sacrament validly must be a validly ordained priest, he must have jurisdiction, and also approbation, if the penitent be a secular. To act lawfully, he must be in the state of grace, free from censure, and he must observe all the regulations made by the Church for the proper administration of Penance.¹

1 Manual of Moral Theology, vol. ii, 178, 27 ff.

To whom may or ought Regulars confess in their own monastery, in another monastery of the same Order, and on a journey when out of their own monasteries?

Regulars ought to confess to the confessors appointed fcr them by their Superior while in their own monastery; in another house of the same Order they may confess to the confessors appointed by the Superior of that house, who can absolve them even from reserved cases with the obligation to present themselves before their own superior or one delegated by him; while on a journey they must confess to a fit companion if they have one, otherwise they may confess to any fit priest, whether secular or regular.²

2 Ibid., p. 189.

The case. Titius is one of the confessors of the boys while they are in the college, and he retains his faculties while the boys remain under the Order’s jurisdiction, so that there was no reason why he should doubt about the validity of the absolution given by him, even though he had no approbation from the bishop of the diocese where the confession was heard.³

3 Ibid., p. 188.

n. ¶10.

In the supposition, which seems to be excluded by the terms of the case, that Caius was a confessor of the monastery to which Titius belonged, and was not Superior, Titius would then be bound to confess to him. Otherwise Titius was not bound to go to confession to Caius, though he might do so if he chose. He was justified in confessing to any priest who was fit, whether secular or regular.

Slater, Cases II, Penance, Case 9. A Regular's Approbation

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:

Who is the minister of the sacrament of Penance?

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

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

What is to be said of the case?

Solution

The first question is answered above, p. 169.

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.

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

n. ¶10.

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.

n. ¶11.

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*

Slater, Cases II, Penance, Case 16. Doubtful Jurisdiction

Titius, a priest of the Diocese of Liverpool, boarded a railway at Liverpool to proceed to London and was alone in the carriage when Paul entered and, after the journey had begun, started a conversation with Titius. After speaking about other matters, at length they conversed about religion. Titius found that Paul was a Catholic but had not confessed for many years because of a disagreement with the parish priest; Paul was nevertheless prepared to confess here and now if Titius was willing to hear him. Titius doubted whether they were still within the boundaries of the Diocese of Liverpool, but since Paul wished to stop at Crewe, thinking that there should be no delay, he immediately heard the confession and absolved Paul. Afterwards, when he thought about the matter, several doubts occurred to him, which he proposes for resolution. Hence it is asked:

Who is the minister of the sacrament of Penance?

Is it lawful for one endowed with doubtful jurisdiction only to absolve a penitent?

Is one doubtfully absolved bound to confess again?

What is to be said of Titius’s manner of acting?

Solution

The first question is answered above, p. 169.

May a priest who has only doubtful jurisdiction absolve a penitent?

He may not, except in case of necessity, for the sacrament would be exposed to the danger of nullity, and the penitent to harm. In case of necessity he may. Theologians admit as just reasons for giving absolution with doubtful jurisdiction the necessity of making one’s Easter communion, or if the penitent has not confessed for a long time.

Is one who is doubtfully absolved bound to confess again?

n. ¶10.

Most theologians answer Yes, for the reason that he is bound to make certain that his sins have been submitted to the keys. This doctrine hardly agrees with the principles of probabilism, for unless there was some chance that the absolution would be valid there was no use giving it, and after the event Standum est pro valore actus. St. Alphonsus (VI, 432) seems to restrict the obligation of confessing again to the case in which the penitent afterwards finds out for certain that the priest had no jurisdiction when he granted absolution.

…and 9 more passages — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 7 passages

Vol. III, Case XLIX: Jurisdiction

The priest Severinus, well acquainted with Prudentius, the bishop of another diocese, visits this diocese and requests jurisdiction to hear Confessions. Prudentius tells him: “Whenever you are in my diocese you have jurisdiction to hear Confessions, together with faculty to absolve from cases reserved to the bishop.” Two years after this Prudentius dies. Severinus now asks his confessor: 1. Does the jurisdiction which Prudentius gave me continue until a new bishop takes office, and just when will it terminate? 2. While Prudentius still lived a change was made in reserved cases; does my faculty continue in their respect? 3. Upon one occasion I received there jurisdiction to hear the Confessions of nuns; was I, in their case, permitted to exercise authority in reserved cases?

The answer is not difficult. Ad. 1 Prudentius had said: “Whenever in my diocese,” etc. It may be claimed that, as Prudentius is dead and the diocese is no longer his, the jurisdiction was given by Prudentius only for the duration of his administration. This interpretation appears artificial and not justified. Prudentius uses the expression my diocese instead of mentioning the name of the diocese, and he would have expressed himself more definitely if he meant to authorize Severinus only for the period of his administration. It is therefore to be held that the bishop did not restrict the jurisdiction to the time of his own life, nor to his episcopal administration. The granting of the general jurisdiction is a gratia facta presbytero, which even re integra, i. e., if the priest during the administration of his friend had not once made use of it, is not affected in its duration by the death of the awarding bishop: arg. c. 36, in VI., 3, 4: a grant of this kind—which, since it contains a special favor, ought to remain in force—does not expire, even while the matter remains untouched, through the death of the grantor.

Severinus may accordingly continue to make use of his jurisdiction, not only during the vacancy, but even later, unless, of course, the new bishop revokes all faculties granted by his predecessor. Propriety requires, however, that Severinus should acquaint the new bishop with the powers granted to him, and request confirmation of the same.

Ad. 2. This question may also be answered in the affirmative, for the faculty to absolve from reserved cases was not granted in a restricted sense, regarding only certain reserved cases, or the reserved cases then prevailing, but in a general sense, and there is no reason for restriction to the reserved cases which were in force in the time of Prudentius: Arg. reg. jur. 15, in VI.: odia restringi et favores convenit ampliari. Whether the reserved cases were lessened or increased by Prudentius, Severinus enjoys in this respect unlimited jurisdiction. If, however, the new bishop has created new reserved cases, there is therein contained a silent revocation of the general jurisdiction formerly granted to confessors for these cases, and Severinus cannot thereafter absolve from these new reserved cases, no more than the priests of the bishop’s own diocese, without explicit new delegation.

Ad. 3. What has just been said about the general validity of the faculty to absolve from reserved cases finds application also in this regard.

Severinus could pro casu absolve also nuns, not only from not reserved, but also from reserved sins.