The Power of Jurisdiction and of Making Laws

Vol. I, On Conscience, III. On Probable Conscience · Vol. I, On Laws, I. On the Nature of Law · Vol. I, On Laws, VIII. On Privileges · Vol. II, On the Seventh and Tenth P…, I. On Justice Considered Generally · Vol. III, On the Particular Obligati…, I. On Judges · Vol. III, On Penance, IX. On the Jurisdiction of the Confessor · Vol. III, On Penance, X. On Regulars and Nuns · Vol. III, On Penance, XII. On the Various Duties of the Minister · Vol. IV, On the Constitution *Apostolicae Sedis*

The power of making laws belongs to the power of jurisdiction, as it is called. Hence, for the sake of completeness and clarity, we shall speak first of the power of jurisdiction in general, then of the power of jurisdiction insofar as it carries legislative power with it.

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. III, Section I. On the Power of Jurisdiction in General

n. 96.

I. Notion of jurisdiction.

Jurisdiction taken in the full sense is the public power of ruling others (St. Alphonsus, VI, 557). It is said:

a) Public, because it directly regards the community and the common good. Namely, the power of jurisdiction rests on the dependence of persons equal in themselves, a dependence arisen from the obligation of pursuing the common good. This power, therefore, is as great, and no wider, than the procuring of the common good to be shared by all requires.

b) Of ruling. By this word, with respect to the Church, there is comprehended the threefold power of teaching, ministry, and governance; with respect to the civil state, only the power of governance, which nevertheless, just as the power of governance in the Church, is legislative, judicial, and executive. These matters, however, with respect to the Church, are treated more fully by dogmatic theologians and canonists; with respect to the civil state, by teachers of moral philosophy.

Corollary. The power of jurisdiction differs from dominative power, which rests on the dependence by which persons are under the dominion of another either naturally, as a father and children, or by handing over themselves, namely in the religious state. This power directly regards the private good of the subject. Hence legislative power does not belong to it, but only prescriptive power. By this, indeed, it can command more things, for example in domestic society and in a religious community, than legislative power can, which cares only for more general things; yet not so great things, since the reason or foundation of directly pursuing the common good is lacking. Thus, for example, the faculty of imposing grave penalties does not pertain to prescriptive power.

The power of jurisdiction accepted in the full sense, which, as follows from what has been said, comprises several things, can be communicated to others according to more or fewer things; and thus, once communicated, it also is usually called the power of jurisdiction. From this it follows that the power of jurisdiction is taken both in the full sense and in a less full sense; we must have regard to this usage in what follows.

n. 97.

II. Division of jurisdiction. Jurisdiction is first divided into ecclesiastical and civil, according as it is the power of ordering subjects to a spiritual good, that is, to eternal salvation, or to a temporal good. Ecclesiastical jurisdiction is divided:

Into ordinary and delegated jurisdiction. Ordinary jurisdiction is that which is attached to an office by the law itself (can. 197, § 1). It can be either proper or vicarious (can. 197, § 2). The former is that which is exercised in one's own name; the latter is that which is indeed attached by law to an office, but must be exercised in the place or name of another. Of this sort, for example, is the power of a vicar general. Delegated jurisdiction is said to be that which has been committed to a person (can. 197, § 1). It is called delegated for a universality of affairs when all causes of some kind, for example matrimonial causes, are committed to someone.

It is doubtful what sort of power the power of a vicar general is with respect to those things for which a special mandate is required, whether ordinary or delegated. But it seems to be delegated, because, having considered can. 368, only that power is attached by law to the office which does not require a special mandate.

Into jurisdiction of the external forum and of the internal forum, according as it is directly ordered to the common good or to private good. Hence jurisdiction of the external forum, or political, public forum, is exercised around that kind of matters which proximately regards the public utility of the faithful and the external order of the Church. Jurisdiction of the internal forum, or of conscience, of the forum of heaven, regards those things which proximately pertain to the private utility of the faithful. Jurisdiction of the internal forum is twofold, sacramental and extra-sacramental, according as it is exercised in or outside the sacrament of Penance (can. 196).
Into non-judicial or voluntary jurisdiction, and judicial or necessary jurisdiction. The former is exercised without the form of a trial and therefore over willing persons, as if someone dispenses someone from a law. The latter is exercised in judicial form and therefore over unwilling persons.

n. 98.

III. Acquisition of jurisdiction. Ordinary jurisdiction is acquired by obtaining the office to which it is annexed (cf. can. 147, § 2). Delegated jurisdiction can be granted and acquired in this way:

"One who has ordinary jurisdiction can delegate it to another in whole or in part, unless something else is expressly provided by law" (can. 199, § 1).
One who has delegated jurisdiction can subdelegate it as follows:

a) One who has jurisdiction delegated by the Holy See can subdelegate it either for an act or even habitually, unless the industry of the person has been chosen or subdelegation has been prohibited (can. 199, § 2).

b) One who has power delegated by one who, below the Roman Pontiff, has ordinary power, can subdelegate in individual cases if the power has been delegated for a universality of affairs (can. 199, § 3). In other cases he cannot subdelegate unless by an expressly made concession; but a delegated judge, even without an express concession, can subdelegate some non-jurisdictional article (can. 199, § 4), for example inquiry concerning the causes of a dispensation, concerning the worthiness of the petitioner, etc.

c) One who has subdelegated jurisdiction cannot subdelegate another, unless this has been expressly conceded (can. 199, § 5).

Note. The burden of proving delegation rests on him who asserts that he has been delegated (can. 200, § 2).

n. 99.

IV. Interpretation of jurisdiction. The following are to be interpreted broadly: 1. ordinary power of jurisdiction; 2. power delegated for a universality of affairs. Any other power is to be interpreted strictly (can. 200, § 1). Nevertheless, habitual concessions, which are granted either in perpetuity or for a predefined time or a certain number of cases, are to be interpreted broadly (cf. can. 66, § 1). Therefore the faculty of dispensing granted for a certain case is to be interpreted strictly (can. 85). But the reason on account of which power delegated for a universality of affairs and the aforesaid habitual concessions are also to be interpreted broadly is that they involve a grace made to the delegate.

Note. To him to whom power has been delegated, those things also are understood to have been conceded without which the same power could not be exercised (can. 200, § 1). Therefore in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only to the effect of obtaining the dispensation (can. 66, § 3). Hence an excommunicated person, dispensed for marriage, is released from censure only with respect to the marriage.

n. 100.

V. Extension of jurisdiction. Jurisdiction extends itself:

With respect to persons:

a) The power of jurisdiction can be exercised directly only over subjects (can. 201, § 1).

b) One who has voluntary power of jurisdiction can also exercise it for his own advantage, or while existing outside the territory, or over a subject absent from the territory, unless something else is established from the nature of things or from law (can. 201, § 3).

c) One who has judicial power, whether ordinary or delegated, cannot exercise it for his own advantage or outside the territory, with certain exceptions preserved (can. 201, § 3). By force of these exceptions, one who has ordinary jurisdiction of absolving from sins and from censures can absolve subjects everywhere in the world (can. 401, § 1; 881, § 2), and a judge expelled by force from his territory, or impeded from exercising jurisdiction there, can exercise his jurisdiction and render sentence outside the territory, though the local Ordinary must be informed of this matter (can. 1637).

With respect to forum:

a) If the forum for which power has been given has not been expressed, the power is understood to have been conceded for both forums, unless something else is established from the nature of the matter itself (can. 202, § 3).

b) An act of the power of jurisdiction, whether ordinary or delegated, conferred for the external forum is valid also for the internal forum, but not conversely (can. 202, § 1). Nevertheless, compare can. 1047.

c) Power conferred for the internal forum can also be exercised in the extra-sacramental internal forum, unless the sacramental forum is required (can. 202, § 2).

Note 1. A delegate who exceeds the limits of his mandate, whether concerning things or concerning persons, does nothing. Nevertheless, the delegate is not understood to have exceeded these limits if he accomplishes the things for which he was delegated in a way other than pleased the delegating one, unless the mode itself was prescribed by the delegating one as a condition (can. 203).

Note 2. Voluntary power of an inferior is not suspended because someone, passing over the inferior, approaches a Superior.¹ Nevertheless, the inferior should not involve himself in a matter brought to the Superior, unless from a grave and urgent cause; and in this case he should at once warn the Superior about the matter (can. 204).

¹ Nevertheless note the doctrine of can. 44, § 2: "A grace denied by the Vicar General and afterward obtained from the Bishop, with no mention made of this denial, is invalid; but a grace denied by the Bishop cannot validly be obtained from the Vicar General, even if mention of the denial has been made, without the consent of the Bishop."

n. 101.

VI. Cessation of jurisdiction.

Ordinary power ceases when the office has been lost; it does not cease when the right of the one granting it has been dissolved, unless the law establishes otherwise, or unless in the concession there is contained the clause "at our good pleasure" or another equivalent clause (can. 208; 183, § 2). Jurisdiction is silent, that is, its force is suspended, if an appeal is interposed which is conceded in the suspensive effect; if it is conceded in the devolutive effect, meanwhile the subject must submit himself (can. 208).
Delegated power ceases: 1. when the mandate has been completed; 2. when the time has elapsed or the number of cases for which it was conceded has been exhausted; 3. when the final cause of the delegation ceases; 4. by revocation of the delegating one directly intimated to the delegate, or by renunciation of the delegate directly intimated to the delegating one and accepted by the same; 5. when several have been delegated collegially, if one is lacking, the delegation of the others also expires, unless something else is established from the tenor of the delegation. When the right of the delegating one has been dissolved, delegated power does not cease unless something else appears from added clauses, or unless the rescript confers the power of granting a grace to particular persons expressed in the rescript, and the matter is still entire¹ (can. 207, §§ 1 and 3; 1725, 3°). Finally, when power has been conceded for the internal forum,² an act placed through inadvertence after the time has elapsed or the number of cases has been exhausted is valid (can. 207, § 2).

¹ A matter is still entire if, in rescripts of grace, the executor has not yet placed any act by which he has preoccupied the matter; and in rescripts of justice, if the citation of the parties has not yet been made.

² For example, sacramental jurisdiction.

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

n. 102.

I. Notion. The Church is said to supply jurisdiction when, in the very exercise of the act, it confers jurisdiction in a transitory way. This can indeed be done absolutely or hypothetically, according as jurisdiction is certainly or only probably lacking.

n. 103.

II. When is jurisdiction supplied? Canon 209 establishes: In common error or in positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and internal forum. Therefore jurisdiction is supplied:

In common error, namely when a sufficiently large part of the community thinks that the required power belongs to someone, although in fact it does not belong to him. It is said:

a) A sufficiently large part. Moreover, it suffices that morally all members of the community err. Likewise, it is enough that the greater part be in error, both because then the error can in some way be called common, and because the common good, which the Church intends to provide for, seems entirely to require this. It probably suffices that many err, many, I say, whether absolutely, as 200, or relatively to the community; likewise it is probably enough that the foundation of common error has been posited, as if the name of a priest lacking jurisdiction has been affixed to a confessional. The reason is sought from this: otherwise it would often be difficult to determine whether or not common error was present. I have said "probably suffices," because with respect to the later cases there are reasons for doubting,¹ both because formerly the notion of common error was not applied sufficiently commonly to the said cases, and because such error is in reality not yet common.

b) Of the community, namely "of a people, neighborhood, parish, college, community, etc., provided that in such a community there are not fewer than ten people.... The reason is that ten constitute a people."²

c) They think. Doubt properly so called does not suffice, but at least that state of mind is required which is called opinion.³

When common error stands, supplied jurisdiction extends itself also to those members of the community who are not occupied by the error.

In positive and probable doubt, whether of law or of fact. It is said:

a) In positive and probable doubt, that is, as these words seem to be taken here, when for the existence of jurisdiction there are relatively grave reasons, or a relatively grave reason.

b) Whether of law or of fact. Doubt of law is had if, after considering law or custom, it is positively probable that jurisdiction is present. Doubt of fact is had if it is positively probable either that the private fact of concession of jurisdiction has taken place, or that jurisdiction privately conceded has not yet expired.

Corollary. In the case in which the required common error is only probably present, the Church also supplies only probably.⁴ Nor should you say that in the case jurisdiction is probable, and therefore by force of can. 209 is certainly supplied. For the words "the Church supplies jurisdiction in positive and probable doubt whether of law or of fact" signify, in their obvious sense, that the Church supplies jurisdiction if it probably exists independently of the Church supplying; but they do not involve this: that the Church supplies jurisdiction in positive and probable doubt concerning jurisdiction supplied by it, that is, by the Church.

¹ Others do not doubt: Vermeersch, Theologia Moralis Principia, III, 459; Jombart and Guns in Nouvelle Revue Theologique, 1923, pp. 173, 539 sq.; Aertnys-Damen, II, 359; Schaepman, Nederlandsche Katholieke Stemmen, 1928, p. 44.

² Reiffenstuel, Ius Canonicum Universum, V, I, 249.

³ Doubt properly so called is the state of a mind fluctuating between two parts of a contradiction. It is distinguished into positive and negative, according as someone doubts on account of equal or nearly equal motives, or on account of no motives or slight motives on each side. Where one side is held as more probable than the other, there is not doubt properly so called, but opinion, which is the state of a mind adhering to something knowable with prudent fear of erring.

⁴ Otherwise Jombart, Nouvelle Revue Theologique, 1923, p. 176.

n. 104.

III. Use of supplied jurisdiction. Having considered the greater kindness of the Church with respect to this matter,¹ it must be said as follows:

In the case of common error, a grave cause is required in order that it be permitted to use supplied jurisdiction. The reason is that the Church, in the case in which jurisdiction is certainly lacking, is of itself greatly opposed to conceding it in a way abnormal in itself; hence one should not have recourse to it without a grave cause. With these things considered, the following sin gravely: 1. a priest about to hear confessions who omits the petition for jurisdiction, relying on jurisdiction to be supplied by the Church on account of common error; 2. one who, even if the occasion of petitioning jurisdiction in time is lacking, has recourse to the concession of supplied jurisdiction without a grave cause. Nevertheless, great utility of the people constitutes a grave cause.

One who proceeds without a legitimate cause, although he receives jurisdiction, does not incur the suspension of can. 2366 issued against one who, without necessary jurisdiction, has presumed to hear sacramental confessions.

In positive and probable doubt, the use of supplied jurisdiction seems lawful for any just cause. For in the case in which jurisdiction is already probably present, the Church is not so gravely opposed to conceding it in a way abnormal in itself; there is question only of a concession for caution, as it is called. Such a case would be if the petition of the concession were not without some difficulty, or would later have place more conveniently (cf. St. Alphonsus, VI, 573).

¹ Before the Code, the Church more probably did not supply in common error unless a colored title was present; likewise it was doubtful whether the Church supplied in doubt whether of law or of fact.

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. III, Section II. On Jurisdiction Insofar as It Imports Legislative Power

n. 105.

I. Legislative power exists among human beings. For, as was proved above, positive laws are necessary in human society (n. 88). But law cannot proceed except from one who has power over others.¹

II. Legislative power belongs both to the Church and to the civil State. We shall speak of each.

¹ Cf. encyclical of Leo XIII, Libertas.

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. III, Sect. II, Point I. On the Legislative Power of the Church

n. 106.

I. Existence of the power. The Church enjoys legislative power. This proposition is of faith from the Vatican Council,¹ and is clear from these words of Sacred Scripture: "But if he will not hear the Church, let him be to you as a heathen and a publican. Amen I say to you: whatever things you shall bind upon earth, shall be bound also in heaven."² Besides, consult the dogmatic theologians.

¹ Session 4, c. 3, dogmatic constitution Pastor aeternus.

² Matt. 18:17-18.

n. 107.

II. Subject of the power.

Universal laws can be made by: 1. the Supreme Pontiff (can. 218, 219); 2. an Ecumenical Council (can. 228). In establishing laws, the Supreme Pontiff usually uses the work of the Sacred Roman Congregations, concerning which we shall speak especially in a scholion. When the Apostolic See is vacant, the Sacred College of Cardinals and the Roman Curia have no other power than that which is defined in the constitution of Pius X Vacante Sede Apostolica, December 25, 1904 (can. 241).
Particular laws can be established by:

a) A bishop for his diocese, both within and outside a synod, even without the Chapter having been heard (can. 329, § 1; 334; 335; 362).

b) Vicars and Prefects Apostolic enjoy in their territory the same rights and faculties which belong in their own dioceses to residential bishops, unless the Apostolic See has reserved something (can. 294, § 1).

c) An Apostolic Administrator constituted permanently enjoys the same rights and honors, and is held to the same obligations, as a residential bishop. If he has been given for a time, he has the same rights and duties as a Capitular Vicar (can. 315, §§ 1 and 2, 1°).

d) When the see is vacant, the governance of the diocese devolves to the Chapter of the cathedral church (can. 431, § 1); from the Chapter to the Capitular Vicar (can. 432, § 1).

Pastors lack legislative power (cf. can. 83).

e) Plenary councils for several ecclesiastical provinces, and provincial councils for an ecclesiastical province (can. 291, § 2). Nevertheless, it is required that the decrees of the aforesaid Councils be transmitted to the Sacred Congregation of the Council, or to the Sacred Congregation de Propaganda Fide if there is question of mission lands (can. 252, § 2), and be reviewed by it (can. 291, § 1). Once this review has been made, it is permitted that they be promulgated. Permission of this kind involves approval or confirmation called common. But special approval, or approval in specific form, is had if they are confirmed with the clause motu proprio and ex certa scientia. This approval causes the statutes of the Council to become pontifical.¹ In a diocesan synod the sole legislator is the bishop (can. 362).

f) General chapters of exempt clerical religious institutes (cf. can. 501, § 1). But legislative power of this sort does not belong to councils or general chapters of nuns, nor does it seem to have been conceded to general chapters of non-exempt religious congregations of men except by privilege; for apart from dominative power, their Superiors generally do not seem to have ecclesiastical jurisdiction.² Legislative power likewise generally is lacking to Superiors General of religious Orders;³ a fortiori to provincial and local Superiors, and likewise to provincial Chapters.⁴

Question. Who can impose precepts?

¹ Benedict XIV, De Synodo, bk. 13, c. 5, n. 11.

² Wernz, Ius Decretalium, I, n. 94.

³ Yet there seem to be exceptions.

⁴ From these things it is clear that many governors of imperfect communities, although they enjoy the power of jurisdiction, nevertheless lack legislative power. This indeed has place because the Church so disposes; for of itself it is not repugnant that governors of this sort possess legislative power.

n. 108.

Response. Precepts can be imposed by: 1. those who in the Church enjoy legislative power, such as the Supreme Pontiff, the local Ordinary, etc.; 2. those who have power of jurisdiction for the external forum, such as the local Ordinary or the Superior of an exempt religious institute; 3. those who possess dominative power, such as a father, a religious Superior, etc.; 4. those who enjoy domestic power, such as a father, mother, master, or religious Superior.

One who enjoys dominative power, jurisdiction for the external forum, and domestic power, such as the Superior of an exempt religious institute, can impose precepts by force of dominative power, jurisdiction, and domestic power alike.

Finally, concerning the use of the power of making precepts, note these words of St. Thomas: "Prelates ought to abstain from a multitude of precepts" (II-II, q. 105, a. 1, ad 3); likewise these words of St. Alphonsus: "A multitude of decrees would be the ruin of the Congregation" (Corr. gener., n. 75).

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. III, Sect. II, Point II. On the Legislative Power of the Civil State

n. 113.

I. The existence of legislative power in the civil state is proved:

From Sacred Scripture, which recognizes power of this sort in civil governors, and in subjects the obligation of subjecting themselves. "By Me kings reign, and lawgivers decree just things; by Me princes rule, and the mighty decree justice."¹ "Give ear, you who contain multitudes and please yourselves in the crowds of nations, because power has been given to you by the Lord, and strength by the Most High."² "Let every soul be subject to higher powers; for there is no power except from God; and those that are, are ordained by God. Therefore he who resists the power resists the ordinance of God. And those who resist acquire damnation for themselves; for princes are not a terror to the good work, but to the evil. But do you wish not to fear the power? Do good, and you shall have praise from it, for it is God's minister to you for good. But if you do evil, fear; for it does not bear the sword without cause. For it is God's minister, an avenger unto wrath against him who does evil. Therefore be subject of necessity, not only because of wrath, but also because of conscience. For therefore you also pay tribute; for they are ministers of God, serving unto this very thing."³ "Be subject, therefore, to every human creature for God's sake: whether to the king as preeminent; or to governors as sent by him for the punishment of evildoers and for the praise of the good; because so is the will of God, that by doing good you may silence the ignorance of foolish men: as free, and not as having liberty as a cloak for malice, but as servants of God. Honor all: love the brotherhood: fear God: honor the king."⁴
It is clear from the nature of civil society. For it commonly happens that many things which are necessary or very desirable for the civil good, or the full sufficiency of human nature, distinguished through families and stocks and through changes of times and places, are not evident to all, or are not spontaneously procured by all according to their powers. Therefore it is necessary that in civil societies there be an authority by which those things which are opportune for the civil good can be imposed, and by coercion, with penalties imposed, exacted from the unwilling.⁵

¹ Prov. 8:15-16.

² Wis. 6:3-4.

³ Rom. 13:1-7.

⁴ 1 Pet. 2:13-18.

⁵ Cf. encyclical of Leo XIII, Diuturnum, June 29, 1881.

n. 114.

II. The derivation of civil legislative power from God is clear:

From Sacred Scripture, which, as follows from the testimonies brought forward, not only establishes legislative power, but also manifestly signifies that it is derived from God: "By Me kings reign," etc.
There is added the fact that legislative power, or rather authority which also involves legislative power, is derived either from God or from a social pact, explicit or implicit, by force of which the rights proper to authority, such as the right of making laws, the right of life and death, the right of war, etc., belong to some physical or moral person.¹ But, to use the words of Leo XIII, "the pact, as they proclaim it, is openly imaginary and fictitious, and is not capable of imparting to political power such measure of strength, dignity, and firmness as the protection of the commonwealth and the common advantages of citizens require."²

Nevertheless, there is dispute concerning the manner by which authority is derived by God into a determined subject, whether physical or moral. According to some, the Author of nature immediately confers authority upon the physical or moral person who, for example, by singular aptitude, or by dominion of territory, or by patriarchal power, or by victory, or by election of the people, is designated as the one to be endowed with authority. According to others, God immediately gives authority to the whole people, that is, to the multitude of citizens, not formless, but formed by the relation of rights and duties in order to the perfect good; and the people, as is customary, transfers it to another subject, whether physical, as to a king, or moral, as to a college of aristocrats.³

¹ J. J. Rousseau (d. 1778) establishes a pact of this sort; he further teaches that human beings freely constituted society by such a pact. "But it is a great error not to see what is manifest: that human beings, since the race is not solitary and wandering, are born into a natural community apart from their own free will" (encyclical Diuturnum).

² Encyclical Diuturnum, June 29, 1881.

³ Cf. Marcellus a Puero Iesu, Ethica moralis et socialis, pp. 117-128; Billot, De Ecclesia Christi, 4th ed., pp. 491-504.

n. 115.

III. The subject of civil legislative power is the supreme governor of society. But the supreme governor can be either a physical person, as in monarchy, or a moral person, which can be constituted either by the nobler part of the people, as in aristocracy, or by a few in number, as in oligarchy, or by the whole people, as in democracy; or even a physical and moral person taken together, as in constitutional monarchy.¹ Hence in Catholic doctrine, as Leo XIII says, "there is no question about the forms of commonwealths; for there is no reason why the Church should not approve the rule of either one or several, provided only that it be just and directed toward the common advantage. Wherefore, justice being preserved, peoples are not forbidden to procure for themselves that kind of commonwealth which more aptly suits either their own character or the institutions and customs of their ancestors."²

¹ In the Netherlands it resides with the King and the General Estates of deputies of both orders. "The legislative power is exercised jointly by the King and the States General" (Fundamental Law, art. 109). "All proposals of law accepted by the States General and approved by the King acquire the force of law and are promulgated by the King" (Fundamental Law, art. 121). From these things it is clear that among us the form of government is composed of a monarchical and a democratic element: "monarchical," indeed, as is clear; "democratic," because the deputies represent the people. A form of government of this kind is called constitutional representative government of the people.

² Encyclical Diuturnum, June 29, 1881.

n. 116.

IV. The relation between ecclesiastical and civil power.

Each power, ecclesiastical and civil, is perfect and independent in its own sphere. "God has divided the care of the human race between two powers, namely, ecclesiastical and civil: the one set over divine things, the other over human things. Each is supreme in its own kind; each has certain limits within which it is contained, defined by the nature and proximate cause of each; whence, as it were, a certain sphere is circumscribed, in which the action of each may be exercised by its own right."¹ Hence proposition 19 of the Syllabus was rightly condemned: "The Church is not a true and perfect society, plainly free, nor does she possess her own proper and constant rights conferred on her by her divine Founder; but it belongs to the civil power to define what the rights of the Church are, and the limits within which she can exercise those rights";² and the 39th: "The State, as the origin and source of all rights, possesses a certain right circumscribed by no limits";³ and the 44th: "The civil authority can involve itself in matters which pertain to religion, morals, and spiritual governance."⁴ And St. Thomas rightly concludes: "In those things which pertain to the salvation of the soul, the spiritual power is to be obeyed more than the secular, according to that saying in Matt. 22: 'Render the things that are Caesar's to Caesar, and the things that are God's to God'" (II Sent., dist. 44, q. 2, a. 4, ad 4).
In a conflict, the ecclesiastical power prevails, since it is the higher power. Hence proposition 42 of the Syllabus was condemned: "In a conflict of laws of either power, the civil law prevails."⁵

¹ Encyclical of Leo XIII, Immortale Dei, November 1, 1885.

² Denzinger-Bannwart, n. 1719.

³ Denzinger-Bannwart, n. 1737.

⁴ Denzinger-Bannwart, n. 1744.

⁵ Denzinger-Bannwart, n. 1742.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 1 passage

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, In Judges

n. 1942.

Jurisdiction

Jurisdiction.—Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 20 passages

Vol. I, On Conscience, III. On Probable Conscience

n. 117.

You will resolve: It is not licit to follow a probable opinion, but we must altogether choose the safer one in all those things which are necessary with the necessity of means for salvation, where the fact itself, or the truth of the thing, alone is attended to. Hence we must embrace the safer religion. Prop. 4 condemned by Innocent XI; L. 1. 1. n. 43. In the conferral of the sacraments, the minister is bound to follow the safer opinion, unless necessity is present or the Church supplies; for here again the question concerns the truth of the thing. For sacraments would not be had unless those things were really placed which Christ instituted for their validity. Prop. 1 condemned by Innocent XI.

Unless necessity is present; "for in extreme necessity we can well use any opinion, not only probable, but even tenuously probable, for the value of the sacrament... provided the sacrament is conferred conditionally: because the condition sufficiently repairs the injury of the sacrament, if perhaps it is conferred invalidly, and on the other hand necessity is a sufficient and just cause for conferring the sacraments conditionally." L. 1. 1. n. 49. Unless the Church supplies; for "we can licitly use a probable opinion where the Church is presumed to supply, as can happen in the sacrament of matrimony to validate a contract only probably valid, if perhaps that contract is null because of an impediment which the Church removes by supplying, and in the sacrament of penance to supply the jurisdiction of the confessor, if perhaps it is lacking."

L. 1. 1. n. 50. A physician is bound to apply the safer medicines which can be had in the case; for here the question concerns the objective effect itself, that is, the health of the sick person, to be obtained absolutely. And certainly the physician is bound not only from charity, but also from justice, by reason of his office and tacit contract, to provide in the better way for the health of the sick person, from whom he receives a stipend. L. 1. 1. n. 44. A judge cannot judge according to the less probable opinion; for he is bound by divine and human precept to render to each his right. Prop. 2 condemned by Innocent XI; L. 1. 1. n. 47.

A hunter who probably judges that an object hidden in the woods is a man cannot strike, although he judges more probably that it is a beast. For on the one hand the neighbor has a certain right to his life; on the other hand greater probability does not make it so that, if it really is a man, he will not perish by the blow. L. 1. 1. n. 52, H. A. tr. 1. n. 33. When scandals and more grave evils threaten, the safer part is to be chosen, by which they may be avoided, so that the utility of all may be consulted. C. Illud 5 de Cler. exc. - Generally the safer things are to be chosen when, as regards charity, the danger of sinning formally must be avoided, and as regards justice, the damage must be avoided of him who is in certain possession of his certain right. E. M.

Vol. I, On Laws, I. On the Nature of Law

n. 178.

Do the Declarations, Decisions, and Decrees of the Sacred Congregations have the force of law? - There is no doubt that they oblige in the particular cases for which they are made. C. Sixtus V Immensa. There is no doubt that they have the force of law if the strength of Apostolic firmness is added to them. Cf. Bened. XIV, C. Sacramentum Poenitentiae, or if they have been solemnly published by mandate of the Apostolic See, or if in the Church they have been universally and by the use of several years disseminated. L. 106. But all the Decrees of the Sacred Congregations have the same authority if they have been duly promulgated. Pius X, C. Sapienti consilio, July 1, 1908.

Besides the aforesaid cases, concerning particular Decrees, about which alone there can be a question, there is a threefold probable opinion. The first opinion asserts that they have the force of obliging all, because they contain an authentic interpretation of laws. - The second opinion says that they do not oblige universally. The reason is that, in order that a law oblige all, solemn promulgation of a universal law is altogether required, and simple publication of a particular Response does not suffice. - The third opinion affirms this when the Declarations are comprehensive, namely when they do not depart from the proper and usage-received signification of the words. For then no promulgation is needed, since a new law is not made, but a law already made and promulgated is only explained. But it denies this when the Declarations are extensive, namely when they depart from the proper and commonly accepted signification of the words. For then they are new laws, which require legislative power and promulgation. But even if they contain an interpretation of doubtful and obscure common law, and not a mere declaration of clear law, they cannot have the value of universal law without legitimate promulgation, or before they are brought into common practice. Cf. 176. Schmalz. Dissert. prooem. n. 373 seq.; Pichler. Proleg. n. 46; Reiffenst. Prooem. n. 130 seq.; L. 1. 1. n. 106, 1. 3. n. 760. 765. 1027, 1. 6. n. 401. 403. 556. 593. 699, H. A. tr. 15. n. 87; Bened. XIV De Syn. l. 6. c. 6. n. 4, Index of the Work v. Congregation of the Council, its prudent inconstancy in its decisions and in rendering judgments; Scav. 1. 1. n. 339. 240, Milan ed. 1874; A. S. S. v. 3. p. 563 seq.; E. M.

178 bis. Note: The most recent ordering of the Roman Curia was made by the Constitution Sapienti consilio of Pius X, July 1, 1908. In it Congregations, Tribunals, and Offices are distinguished. There are eleven Sacred Congregations, and they are the following; to each of them its own matter is exclusively assigned, the cumulation of rights in all Offices of the Holy See being abrogated.

Congregation of the Holy Office. It guards the doctrine of faith and morals. Therefore to it alone remains judgment concerning heresy and other crimes which induce suspicion of heresy. - To it also was devolved the whole matter concerning Indulgences, in which matter the Constitution In ipsis of Clement IX, July 6, 1669, fully remains in force. But the faculty remains intact to the Holy Office of knowing those things which concern the Pauline privilege and impediments of disparity of cult and mixed religion, besides those things which touch dogmatic doctrine concerning marriage, as also concerning the other Sacraments.
Consistorial Congregation. It prepares the matters to be done in Consistories. In places which are not Mission places, it constitutes new dioceses and chapters; and treats those things which pertain to the division and general governance of dioceses, and to the election of Bishops, Apostolic Administrators, and Coadjutor and Auxiliary Bishops. In naming Bishops one must adhere to the Constitution Romanis Pontificibus, Dec. 17, 1903. To it also pertain those things which regard the governance, discipline, studies, and temporal administration of seminaries. But it resolves doubts concerning the competence of the Sacred Congregations. - A section was added concerning the spiritual care of emigrants, and concerning priests themselves who emigrate. Pius X, M. P. Cum omnes, Aug. 15, 1912.
Congregation on the discipline of the Sacraments. To it pertains the whole legislation concerning the discipline of the seven Sacraments. Therefore to it pertain matrimonial dispensations in the external forum, dispensations of those to be ordained, and dispensations concerning the place, time, and conditions of receiving and reserving the Eucharist, and of celebrating Mass, etc. To it also belong questions concerning the validity of marriage or sacred ordination, and others pertaining to the discipline of the sacraments. Dispensations from impediments of marriage, in the form of a Brief, are granted by this Sacred Congregation, provided they are of an honorable nature, and if the dispensations themselves are subject to greater taxes. Other dispensations are given in the form of a rescript. Cf. Ord. servand. in Rom. Cur., special norms c. n. 13-16.
Congregation of the Council. To it is committed the whole discipline of the secular clergy and Christian people; and therefore to it pertains the observance of the precepts of the Church, except the Eucharistic fast, which belongs to the S. C. on the Sacraments; to it pertain those things which regard Pastors and Canons, those which are referred to pious Confraternities, pious works, pious legacies, Mass stipends, benefices, offices, ecclesiastical goods; to it also pertains the faculty of exempting from conditions required for obtaining benefices, whenever they are to be conferred by the Ordinary; likewise those things pertain which regard ecclesiastical immunity and the celebration of Councils. - To this Congregation is joined the special Lauretana Congregation. The faculty of interpreting the Decrees of the Council of Trent no longer pertains exclusively to the S. C. C., but belongs to the individual Congregations according to their proper competence. S. C. Cons. Feb. 11, 1911.
Congregation of Religious. To this Congregation pertain the affairs of all Religious, of those who live a common life without vows, and of secular third orders, whether among themselves, or with regard to them in relation to others; also dispensations from common law with religious pertain to it.
Congregation of Propaganda Fide. Its jurisdiction is circumscribed by regions where the sacred hierarchy has not yet been at least perfectly constituted, and the state of mission perseveres. Nevertheless those things which regard faith, marriage, sacred rites, and religious as such are to be referred to the proper Congregations. It has united to itself the Congregation for the affairs of the oriental rite, which preserves its functions entire. - To it is joined the Committee for the union of dissident Churches. Besides, the administration of all goods has been committed to it, even of the Reverend Chamber of Spoils. Indults which until now it was accustomed to grant to others, it now grants only to its own subjects. Ord. servand. in R. C., special norms c. 7. art. 6.
Congregation of the Index. To it pertains everything which regards harmful books and writings which are to the ruin of souls. - The Cardinals, Consultors, and ministers of this Congregation and of the Holy Office can communicate with one another all those things, and only those things, which pertain to the prohibition of books, and all are bound in this matter by the same secrecy.
Congregation of Sacred Rites. To it pertain all those things which proximately regard the sacred rites and ceremonies of the Latin Church, and also the insignia and privileges of honor to be granted, both personal and real, which are referred to sacred rites and ceremonies. To it also pertain those things which regard the beatification and canonization of Saints and Sacred Relics, concerning which one must adhere to the Constitution In ipsis of Clement IX, July 6, 1669. - To this Congregation are joined the liturgical, historical-liturgical, and Sacred Chant Committees.
Ceremonial Congregation. To it pertains the moderation of ceremonies in the Pontifical Chapel and Court, and of the sacred functions of Cardinals, and also the precedence of Cardinals and Legates before the Holy See.
Congregation of Extraordinary Ecclesiastical Affairs. It treats those affairs which are referred to it through the Secretariat of State, especially those which are referred to Civil Laws and Concordats.
Congregation of Studies. To it pertains the moderation of studies and academic degrees of Catholic Universities, even of those which pertain to Religious, and the faculty itself of granting academic degrees.

There are three Tribunals, namely:

Sacred Penitentiary. Its jurisdiction is restricted only to those things which regard the internal forum, even non-sacramental, and it settles questions of conscience. It especially retains the norms of the Constitution In Apostolicae of Benedict XIV, Apr. 13, 1744, with the changes introduced and approved by legitimate use being preserved, and also the prescriptions through the Constitution Sapienti consilio and through the law Ord. serv. in R. C. which regard this tribunal. All things are expedited secretly and gratis in this tribunal. - Ord. serv. in R. C., special norms c. 8. art. 1.
Sacred Roman Rota. To it are devolved all contentious non-major causes which are conducted in the Roman Curia, both civil and criminal, the judicial process being preserved. But causes are treated in disciplinary manner by the Congregations themselves to which they belong by reason of the matter. The proper Law must be observed by the S. R. Rota, which is joined to the praised Constitution Sapienti Consilio. In it is established the constitution of the Tribunal, competence, and mode of judging. Besides, in judgments the Rules approved by the Supreme Pontiff Pius X on Aug. 4, 1910, and promulgated on Oct. 25 of the same year, are to be observed. Finally those things also must be observed which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. Cap. 2. Canon 14 of the aforesaid proper law declares the competence of the Sacred Roman Rota thus: "§ 1. The Sacred Rota judges in first instance causes which the Roman Pontiff, either motu proprio or at the instance of the parties, has called to his own tribunal and committed to the Sacred Rota; and these, if need be, and unless otherwise provided in the rescript of commission, it judges also in second and third instance, by means of subsequent turns according to the prescriptions of can. 12. § 2. It judges in second instance causes which have been judged in the first grade by the tribunal of the Most Eminent Vicar of the City and by other tribunals of Ordinaries, and are referred to the Holy See by legitimate appeal. And likewise it judges these, if need be, even in third according to the mode prescribed in can. 12. § 3. Finally it judges in the last instance causes already known by Ordinaries and by any other tribunals in the second or further grade, which have not passed into a res judicata, and are referred to the Holy See through legitimate appeal. § 4. It also sees concerning recourses for restitution in full from any sentences which have passed into a res judicata and cannot find remedy before the judge of second instance according to the title on Restitution in full; provided nevertheless that the matter does not concern a res judicata from a sentence of the Sacred Roman Rota; and in these it judges both concerning form and concerning merit."
Apostolic Signatura. Newly instituted, it is bound to observe the proper Law joined to the Constitution Sapienti consilio itself, and also those things which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. In that Law the question concerns the constitution and competence of the Supreme Tribunal of the Apostolic Signatura, and the mode of judging. This supreme tribunal knows concerning an exception of suspicion against some auditor of the Rota, concerning violation of secrecy and concerning damages inflicted by Auditors, concerning a complaint of nullity against a rotal sentence, concerning restitution in full against a rotal sentence which has passed into a res judicata.

Five Offices are listed, namely:

Apostolic Chancery. Its proper function is to expedite Apostolic Letters under lead concerning the provision of consistorial benefices, concerning the institution of new dioceses and chapters, and for other greater affairs of the Church.
Apostolic Datary. Its proper ministry is concerned with all those things which regard non-consistorial benefices to be conferred, reserved to the Apostolic See. Therefore it also draws up and expedites Apostolic Letters for their conferral, exempts in conferring benefices from required conditions, and cares for burdens and pensions imposed by the Supreme Pontiff in conferring the aforesaid benefices. But benefices are conferred by it through a Bull, or through a decree of simple signature, that is, no Bulls having been expedited. Ord. serv. in C. R., special norms c. 9. art. 2.
Apostolic Chamber. Its care is also the administration of the temporal goods and rights of the Holy See, especially at the time when this is held vacant, according to the norms of the Constitution Vacante Sede Apostolica, Dec. 25, 1904.
Secretariat of State. To it pertain extraordinary ecclesiastical affairs; insignia of honor to be granted, not reserved to the Prelate set over the Pontifical Household; and the expedition of Apostolic Briefs which are committed to it by the various Congregations.
Secretariat of Briefs to Princes, and of Latin letters. This double office has its own function of writing the acts of the Supreme Pontiff in Latin.

The beginning of the year henceforth is to be taken not from the day of the Incarnation of the Lord, that is, from March 25, but from the Kalends of January, in all Apostolic letters to be expedited either by the Chancery or by the Datary. Apostolic Letters, by reason of the gravity of the affairs and of varied form, are distinguished into Bulls, Briefs, and Pontifical Rescripts. - Formerly Bulls were written on rather dark and thicker parchment, and in Lombardic or Teutonic characters; but now from the Motu Proprio of Leo XIII, Dec. 29, 1878, they are written on parchment paper and in Latin characters. Likewise the seal or leaden medal, from which they are called Bulls, with attached cords, is preserved only in Apostolic Letters of conferrals, erections, and dismemberments of major benefices, and also in other solemn acts of the Holy See. In others, the impression of a red-colored seal bears the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Supreme Pontiff drawn around it. A Bull is inscribed: Pius, Bishop, Servant of the Servants of God, and the date is written according to the Roman Calendar. Consistorial nominations, the constitution of new dioceses and chapters, are done through a Bull. Briefs are expedited for affairs of lesser moment; they are written on white and thin parchment, or ordinary paper, and in Latin characters. They bear the seal of red wax with the image of S. Peter engaged in fishing; and therefore they are said to be expedited under the Ring of the Fisherman. Briefs are inscribed Pius Pope X. Their date is designated according to the common calendar. - Finally Rescripts are Responses of Pontiffs, which are often written on the back of the petitions themselves of the supplicants. The Congregation which is called the Reverend Fabric of S. Peter has care only of the property of the Basilica of the Prince of the Apostles according to the Constitution Quanta curarum of Benedict XIV, Nov. 15, 1751.

The Committees for advancing studies either of Sacred Scripture or of history; for administering Peter's Pence; for preserving the Faith in the City, remain in the state in which they were before. The Congregation of the Apostolic Visitation of the City having been removed, those things which pertained to it are referred to the committee of Cardinals to be constituted at the Vicariate of the City. In all Congregations, Tribunals, and Offices, things which are grave and extraordinary must first be signified to the Supreme Pontiff. Other things need pontifical approval, unless special faculties have been granted to their Moderators, and excepting the proper sentences of the Sacred Rota and Apostolic Signatura. - But the affairs to be treated in them are to be treated according to the proper laws and norms joined to the same Constitution Sapienti Consilio. - Organization, provision of officials, internal discipline, manner of acting before the Sacred Congregations, and taxes to be paid are established in the Order to be Observed, or General Rule, which is had for the Sacred Congregations, Tribunals, and Offices. - All officials are bound to swear an oath concerning faithfully fulfilling the office, not receiving gifts even spontaneously offered, and preserving secrecy, according to the formula established there. Provision of minor officials is made through competition in titles and knowledge. - Anyone can treat his own affairs before the Sacred Congregations by himself, through an advocate, through a procurator, through an agent either public or private, Ordo servandus p. 1. cap. 9. - Finally in the Sacred Congregations, Tribunals, and Offices of the Roman Curia, the special Norms of the same Order to be Observed of Sept. 29, 1908, p. 2, must be observed, which especially determine competence, the manner of treating various affairs, the mode of proceeding of full Congregations, and the functions and qualities of various administrators. Assistants must be distinguished by the laurel of doctor in sacred theology and in canon law. Although, with the cumulation of rights in the Offices of the Holy See abrogated, its own seat has been constituted for each affair, nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm by which, when a petition for obtaining a matter pertaining either to grace or to justice has been referred to and accepted by some Office, it is licit for no one for any reason to approach another Office of his own accord for the same end; but the consent of the Office itself with which the matter began to be treated is needed, or a decree of the Consistorial Congregation by which permission is given of transmitting the affair. Once a question has been instituted before some Congregation by the path of administration and discipline, and this mode of acting has been admitted by the parties, or at least not refused, it is no longer licit for them to institute a strictly judicial action on the same cause.

Vol. I, On Laws, VIII. On Privileges

n. 254.

Can one delegated to grant a grace subdelegate? R. Negatively, speaking in itself; because this faculty is not included of itself in the concession of the superior, unless it is expressed. Except: 1. If someone were delegated by the Prince; yet in the case in which the delegation was made as through an office; but not if the person is chosen on account of his expertise, or if not jurisdiction is committed to him, but the mere execution of some cause, or some certain ministry, such as to preach, dispense, enjoin penances, excommunicate or absolve someone. C. 3, 6 and fin. de Offic. et pot. iud. deleg.; S. O., 1 June 1904. Wherefore Regulars, to whom some faculty of dispensing has been granted by the Supreme Pontiff for the easier and more fruitful exercise of the sacred ministry, cannot subdelegate it to others. In the exercise of jurisdiction it matters little what person is constituted judge, provided he is skilled. But in bare ministry, or execution, the industry, experience, and authority of the person are chosen. - 2. If someone were delegated to supply the whole office of another, or to a universality of causes, even if not by the Prince; hence vice-pastors, universally deputed in place of an absent or dead pastor, can subdelegate another, L. 1 § Ab eo ff. Quis a quo. Yet this subdelegation cannot be for the whole, but only for one or another cause, as is common with St. Thomas: "A vicar cannot communicate his whole power, but he can communicate a part." Quodl. 12, a. 31. But a curate administrator, constituted by the Bishop when the parish is vacant, by force of the disposition of the Council of Trent, s. 24, c. 18, can delegate another priest for all offices, unless the will of the Ordinary stands in the way. S. C. C., 9 May 1874, A. S. S., vol. 8, p. 134. What has been said about delegation made by the Prince holds even more of delegation made by the Pope. L. 193. From S. O., 14 Dec. 1898, the Bishop and the Superior General of a religious Order can subdelegate faculties delegated to them by the Apostolic See for a time, whether in a general way or for a particular case, unless this is prohibited or restricted in the faculties. Sanch., de Matr., l. 3, d. 31, n. 4; Ferraris, v. Delegare; L. l. 7, n. 224; E. M.

254 bis. Note: Jurisdiction is the power of ruling others; and it is of the internal and external forum; secular, ecclesiastical; ordinary by force of office, delegated from him who has ordinary jurisdiction. - It is besides contentious or voluntary. The former is exercised over a subject, concerning contentious causes, in judgments, and in one's own territory. The latter is exercised even over a non-subject, concerning other non-contentious business outside judgments, and in one's own territory and outside one's own territory.

n. 255.

Does delegation made absolutely expire by the death of the one delegating? Delegation made by law is after the manner of an ordinary faculty. Made by man, it expires by the death of the one delegating, and by his removal or cessation from office, in contentious jurisdiction, and if the matter is still entire; and in voluntary jurisdiction, if the grace is not made, but to be made; but it by no means expires if the delegation is by way of a grace made, however much the matter may still be entire. This happens: 1. When it is granted on account of public utility, as is the faculty of dispensing in vows, in matrimonial impediments, of absolving from censures, etc. 2. When it is granted on account of the private utility of another, e.g., Caius, Sempronius, etc., yet in such a way that a precept of executing the mandate is imposed on the commissary or delegate, as if he said: dispense with Titius, absolve, provide concerning the benefice, etc., if the petitions rest upon truth. For delegation of this sort contains a right perfectly granted, and therefore, once accepted, perseveres in its being, although the one granting dies, C. 1 § 1 de Filiis presbyt., and this delegation is to be interpreted broadly. On the contrary, it expires if given by way of a grace to be made, the matter however remaining entire; this happens when the grace is not perfectly granted, as occurs when it is given in favor of another private person, and the delegate is not commanded to execute it, but the power of granting the grace is given, or it is remitted to his judgment and will, as if he said: you can and may dispense, etc., if the things set forth are true. The matter remaining entire; for it is otherwise when the matter is not entire. And delegation of this sort is to be interpreted strictly. But the matter is said not to be entire if the delegate has begun to exercise the first act, as if he has begun to call the party to learn concerning the truth of the petitions. R. 16 de R. I. in 6; L. 192-194; cf. here 251, 283 and V. 2, 1045.

Vol. II, On the Seventh and Tenth P…, I. On Justice Considered Generally

n. 833.

What is justice? - Justice is so called from iustari, or from two things being made equal to each other. Justice taken broadly imports all virtues; hence a man is customarily called simply just if he preserves every honesty in every matter. Taken strictly, insofar as it is the special virtue with which we are here dealing, it is defined: the constant and perpetual will of rendering to each one his own right. Inst. 1. 1. t. 1. "Constant and perpetual will," because there must be a firm disposition not only for one or another day, but always, of rendering to each one his own right; for otherwise it is not a perfect virtue, just as penance is not a perfect virtue unless it includes the firm purpose of never sinning. The virtue is defined from the act. Therefore it can be said otherwise that "justice is a habit according to which someone, by a constant and perpetual will, renders to each one his own right." S. Th. 2. 2. q. 58. a. 1. "Right" here is not understood as right broadly so called, which is the exigency of right reason toward something as honorable, that is, toward something to be done because of its honesty, or omitted because of its dishonesty; but right strictly so called is understood, which is a moral power toward something as one's own, that is, toward something to be done, omitted, had, retained, demanded as one's own, that is, as subject to one's own liberty, with others excluded, namely so that it may fall to one's own advantage and utility. This right is founded in the very nature of man, who by reason of his liberty must move himself toward the end and apply the means necessary for obtaining that end. C. L. 359 ff., 2167 ff., 2287, 2339, 2354; C. He. 641; C. I. 438; C. A. 362, 366; C. B. 903; Lugo d. 1. n. 6.

This right, however, is one thing as right of jurisdiction, another as right of property. The first is the legitimate power of a superior to command or prohibit something to subjects for their own good, or for the good of the whole community. The necessity and utility of administering the community is the measure of this right as to its acts. The other is the legitimate power of any private person to dispose of some thing for the advantage of his own liberty, or as his own. Hence in the right of property the thing exists for the proprietor; in the right of jurisdiction neither the Prince exists for the people, nor the people for the Prince, but each exists for the common good.

The right of property is one thing in the thing, another to the thing. The first is that by which someone has the thing itself immediately bound and juridically obligated to himself as his own. Hence a thing obligated to someone by such a right carries its obligation with it, and wherever it may come, it can be sought back by its owner and juridically claimed. The second, however, is that by which someone does not have the thing itself immediately bound and juridically obligated to himself, but rather has another person bound to hand over some thing to him. Therefore a right in the thing makes the thing already his own; a right to the thing makes the thing become his own. A right in the thing gives an immediate real action against the thing itself, so that you may take it to yourself. A right to the thing gives an immediate personal action against the person himself, so that you may compel him to hand the thing over to you, for example by the sentence of a judge. By a right to the thing someone has a just title to having it, for example by title of legacy, but he does not yet have possession of the thing. By a right in the thing someone has possession of the thing itself. For a right in the thing, therefore, there is required a title transferring ownership, of a thing determined in the individual, and its possession, at least regularly. For a right to the thing a just title for having it suffices. And thus the owner of a farm has a right in the thing as regards the existing fruits of that farm; he has a right to the thing as regards the rent of a leased farm. C. A. 307, 308; Inst. 1. 4. t. 6. Whenever a thing is sought by force of an obligation by which someone has not yet acquired ownership of the thing, the action is personal; but if a thing is sought of which he has full ownership, the action is real. Finally, an action is mixed, personal and real, and, as is said, the action is personal written upon the thing, if by the petition of the thing someone acquires ownership of the thing, and then the lawsuit instituted over it begins with a personal action and is concluded by a real action, as in the case in which, by the office of the judge, the sale made of a thing is dissolved, and the thing returns to the seller as his own. A personal action is from some personal fact, that is, from contract or from delict. A real action is from the defect of another's right. Inst. 1. 4. t. 6. section 1. Cf. Troplong, On Sale, article 1654, nn. 624-630; on article 1659, n. 698; on article 1664, nn. 728, 729; on article 1674, nn. 806, 807. "His own"; a thing can be one's own in three ways, if the person is considered in society as its member. Hence right also is distinguished in three ways: into high right, low right, and right of property. High right is that which the Prince, the republic, or the community has over the goods of the members, which it can demand as its own for the common good, by the "ownness" of the community, since whatever the part is belongs to the whole and exists for the whole. S. Th. 2. 2. q. 64. a. 2; q. 65. a. 1. Low right is in the member of the community, as such, to common goods, which the member can demand in their distribution as his own by the "ownness" of a member. The right of property, however, is in the member of the community, as such, to proper goods, which one member can demand from another as his own, by the "ownness" of property. "Of rendering to each one his own right," that is, of equating the right of another by the rendering of what is owed; for to right, as to a certain moral exigency, debt correspondingly responds. Therefore, as is clear, justice is not a virtue toward oneself, but toward another. And as charity has its foundation in the conjunction of men among themselves, so justice rests upon the distinction of one man from another. S. Th. 2. 2. q. 57, 58; Gousset 670, 674.

Vol. III, On the Particular Obligati…, I. On Judges

n. 7.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

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. 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.

Vol. III, On Penance, X. On Regulars and Nuns

n. 782.

From whom do regulars obtain jurisdiction and approbation? - Regulars receive approbation for hearing the Confessions of their own from the superiors of their monastery, province, or order; but jurisdiction is delegated to them by their superiors. And this is understood not only of the professed, but also of novices, and also of secular servants who are truly of the household and continual table-companions. Such are not those who only serve them, but those who remain day and night in the house of the religious, are nourished there, and live under their obedience, although not by reason of a vow. - As regards Confessions of seculars, all mendicant religious, and those who participate in their privileges, have jurisdiction immediately from the Pope. Cf. 778, 784. But they must receive approbation from the Bishop of the place where Confessions are to be received. This approbation is required not only for liceity, but also for the validity of absolution. And this is to be understood even of nuns, although they are of the same order and subject to them, for whom a still special approbation of the Bishop of the place is required. - This is established from the privileges granted to Regulars by the Supreme Pontiffs, Clem. Dudum, de Sepulturis, etc.; from Trent, sess. 23, C. 15; from C. Superna of Clement X; from the common opinion of the doctors. L. 549, 552; Ferraris, v. Approbatio, a. 1, n. 64 f.; E. M.

Vol. III, On Penance, XII. On the Various Duties of the Minister

n. 837.

Who are bound to the seal? - Primarily every confessor is bound to the seal, whether true, or fictitious and by error considered legitimate, and consequently even a layman who would pretend to be a priest and would receive Confession. The reason is that as often as someone confesses in relation to the sacrament, whoever hears him contracts by that very fact the obligation of the seal; otherwise hatred of the sacrament would follow from it. - Secondarily, those are bound who become participants of Confession, or all those to whom knowledge of Confession comes in any way, whether from the Confession itself or from the means ordered to it. From the Confession itself; for the matter accused comes to their knowledge by the same occasion or cause because of which the obligation of the seal is given, namely lest hatred toward the sacrament be created. From the means; for hatred of the means redounds upon the end itself. - L. 645, 647.

Vol. IV, On the Constitution Apostolicae Sedis

n. 1169.

VI. Those directly or indirectly impeding the exercise of ecclesiastical jurisdiction, whether of the internal or external forum, and those having recourse for this to the secular forum, and procuring, issuing, or furnishing help, counsel, or favor for its mandates.

Impeding in reality; otherwise they will not truly be impeding, but trying to impede. Impeding, even if for this they do not have recourse to the secular forum. Directly, e.g., by force or fear inflicted on ecclesiastical judges themselves wishing to exercise jurisdiction. Indirectly, if someone obstructs them in another matter, or in another person, e.g., if force or fear is brought upon their blood relatives, officials, etc. For to impede is to do something by which someone unwilling is kept from acting or ceases from acting. Therefore if someone uses counsels, prayers, or deceits, he is rather understood to persuade, obtain, or deceive. The exercise of ecclesiastical jurisdiction. Therefore for someone to incur this censure, it is necessary that he resist one who is marked with jurisdiction, e.g., a Bishop, parish priest, etc.; otherwise he will not be impeding the exercise of jurisdiction, but something else, e.g., if someone impedes a plaintiff from approaching a judge, he impedes not the exercise of jurisdiction but the petition of the plaintiff. Exercise of jurisdiction, namely from law, lest someone begin it or continue in it. There is question of the exercise of ecclesiastical jurisdiction, which flows from Christ the Lord or from his Vicar, insofar as he is Roman Pontiff, and belongs to clerics insofar as they are clerics. There is question of the exercise of jurisdiction to which it belongs, e.g., to commit things to be performed, those things which are of order, and to depute to ecclesiastical offices; by no means of the exercise of order itself, e.g., to perform the sacred rite, or of the exercise itself of ecclesiastical office, e.g., to preach, teach, etc. Of ecclesiastical jurisdiction, whether ordinary or delegated. But jurisdiction is the power of ruling and governing others. Of the internal forum, as is that which the Sacred Penitentiary uses, and that which pertains to the forum of conscience. Of the external forum, which regards Christian society, whether it is contentious, which is exercised between parties contending in judgment, or voluntary, which is exercised without any judicial process and sentence, as, e.g., to visit a diocese, send preachers, impose censures, etc.

And is to be understood disjunctively from the obvious sense and the whole context, so that another class of persons who incur this censure is denoted. For this, i.e., for impeding the aforesaid exercise, not for something else, e.g., for not delaying the exercise of that jurisdiction and the rendering of justice, for decreeing justly, etc. For this: therefore those having recourse and all others of whom there is question in what follows do not incur this censure unless the effect follows. Having recourse to the secular forum: to have recourse is to implore the aid of another against someone or something, as if someone suffers injury from him. Forum in the proper meaning is the place of exercising judgments. Therefore the patronage of those must be implored who exercise jurisdiction in the forum, such as the Prefect of a city is not, e.g. Yet it seems that secular forum can also be taken more broadly for any civil magistrate by opposition with the internal and external forum of the first part, which from common acceptance is very broadly evident. Procuring mandates are those who cooperate proximately toward this. Issuing, namely establishing, are civil magistrates, or those who by judicial or even other civil power issue the mandates themselves by decreeing such things. Help, etc. Cf. what has been said in the preceding censures. And its, namely of the secular forum. Or: therefore this last clause, or help, etc., in the obvious sense seems to refer only to the last class of persons, i.e., to those procuring and issuing mandates. But others refer it also to the first, second, and third class of persons whom the present censure touches, namely to those impeding, having recourse, procuring mandates, and issuing them. C. Clericis 3, de Immun. eccles., in VI; Bull In Coena Domini, sec. 16; Suarez, disp. 21, sec. 2, sixteenth censure; Bonacina, disp. 1, q. 17.

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 44 passages (filed under the subtopics)

Vol. I, Treatise On Laws, Part Two. On the Principal…, Ch. II, Article I. On Ecclesiastical Law

- That is called ecclesiastical law which is made by ecclesiastical power for the right governance of the Church and the eternal salvation of souls.

The collection of various ecclesiastical laws constitutes Canon Law.

The Corpus of Canon Law consists of six parts, constituting three volumes. They are: the Decree of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

The first volume contains the Decree collected by Gratian, a Benedictine monk, and published in the year 1151 under the title: Concordance of Discordant Canons. The work is distributed into three parts, of which the first treats of ecclesiastical persons, the second of actions or of the matter and form of judgments, and the third of sacred things.

The first part is divided into one hundred and one distinctions, which are subdivided into chapters or canons. It is usually indicated thus: ch. Ieiunium 7, dist. 76; or also dist. 76, ch. 7.

The second part is divided into thirty-six causes; but the causes are divided into questions, and the questions into chapters. It is cited in the following manner: ch. Qui viderit 13, quest. 5, cause 32; or cause 32, qu. 5, c. 13. The Treatise on Penance, having seven distinctions, is cited thus, for example, ch. Mensuram 86, dist. 1, on Penance; or on Penance, dist. 1, c. 86.

The third part consists of five distinctions, which are divided into various chapters. They are cited: ch. Est unitas 49, dist. 4, on Consecration; or on Consecration, dist. 4, c. 49. For this part treats of the consecration of Churches, altars, etc.

The second volume contains the Decretals omitted by Gratian, or published after him, collected by St. Raymond of Pennafort, of the Order of Preachers, by command of Gregory IX, and published in the year 1230. It is divided into five books, which have titles and chapters; and they are cited in this manner: ch. Pervenit 28, on Appeals; or Decretals, book 2, tit. 28, c. 28. A chapter indicated in this latter way is found much more easily.

The third volume contains the Sixth Book, the Clementines, and the Extravagants both of John XXII and the Common ones.

The Sixth, or sixth book of the Decretals, is so called because it is added to the five books of the Decretals of Gregory IX, and has the Decretals published from Gregory IX up to Boniface VIII. It appeared in the year 1298 by the authority of Boniface VIII; it is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added, in the Sixth, or under Boniface.

The Clementines, so called from Clement V, who ordered them to be collected after the Council of Vienne, over which he presided in the year 1311, are Constitutions published either by Clement himself or by the Council of Vienne. John XXII promulgated them in the year 1317 in five books, which, no less than the Decretals and the Sixth, consist of titles and chapters. They are likewise cited in the same way, but there is added in the Clementines.

The Extravagants of John XXII are the Constitutions which he himself published in the prior years of his pontificate. They are so called because they wander outside the corpus of law collected thus far. They are usually indicated thus: Extrav. of John XXII, tit. 4, c. 1.

The Common Extravagants, so called because they were published by John XXII and by several other Pontiffs, are themselves divided into five books, which have chapters with titles, but not numbered. They are ordinarily cited thus: ch. Vas electionis, on Heretics; Common Extravag., or Extrav. comm., book 5, on Heretics, c. 2.

Other Constitutions of the Councils of Constance and Trent, and of the Roman Pontiffs, were published afterward, but have not yet been collected into the corpus of Law.

Questions. - QUESTION 1. What are the Roman Congregations, and what are their various offices?

I answer: The following are enumerated: the Congregation of the Council, the Congregation of Bishops and Regulars, the Congregation de Propaganda Fide, the Congregation of Sacred Rites, the Congregation of the Index, the Congregation of the Holy Office, the Congregation of Indulgences and Relics, the Congregation of Immunity.

The Congregation of the Council (of Trent), or of Cardinals. It consists wholly of Cardinals, who are called the interpreting Fathers of the Sacred Council of Trent, and one of whom is distinguished by the title Prefect of the Congregation. Pius IV had first instituted this for the observance of the Council of Trent; afterward, moved by the requirements of affairs, Sixtus V endowed it also with the power of interpreting the decrees of the Council in those matters which pertain to the reform of morals or discipline and seem doubtful.

The Congregation of Bishops and Regulars. It also wholly coalesces from Cardinals. As its name indicates, it undertakes two matters to be treated: namely, those things which regard the good administration of the dioceses of the whole Catholic world, and those things which pertain to knowing and settling, according to the sacred Canons, the controversies and disputes of Regulars of both sexes.

The Congregation de Propaganda Fide. It is composed of Cardinals alone. It is wholly occupied in procuring the propagation of the Faith throughout the world. The College called de Propaganda Fide, for forming Missionaries, founded at Rome by Urban VIII, pertains to its cares.

The Congregation of Sacred Rites. Besides Cardinals, it also consists of Consultors, Prelates or Regulars. It defines and orders the sacred liturgy, and the things which pertain to it. The examination also of the causes of Beatification and Canonization of the Saints is numbered among its offices.

The Congregation of the Index, instituted by St. Pius V. In it Cardinals and several other learned men have a place. It exercises one sole office, but one of great moment for the good both of ecclesiastical and of civil society: namely, it has the care of books which are published, lest anything through them be able to be propagated among Christians against Religion and good morals; those which it judges harmful to the faithful, it accurately notes, forbids, and reports in the Index, which therefore is called the Index of prohibited books, so that the faithful may abstain from reading them as from poisoned pastures. Yet sometimes books are prohibited both by the Congregation of the Holy Office and by the Pontiff himself through particular Briefs and dogmatic Constitutions, especially if they savor of heresy.

The Congregation of the Holy Office, or of the sacred universal Inquisition. It is called Supreme, and consists both of Cardinals and of Prelates and Theologians.

It belongs to it to take cognizance of heresy, and also of suspicion of heresy, or of other irreligiosities. It was instituted by Paul III and confirmed by Sixtus V.

The Congregation of Indulgences and Relics. It has the faculty and office of settling all difficulties and doubts concerning Sacred Relics and Indulgences. It consists of a number of Cardinals to be determined by the Supreme Pontiff, and of other Prelates and Theologians.

The Congregation of Immunity, which coalesces from Cardinals and a few others. It inspects and takes cognizance of causes concerning ecclesiastical immunity, whether real, personal, or local.

- QUESTION 2. What is to be said concerning the sacred tribunals, gracious and contentious?

I answer: 1. Three gracious tribunals are numbered, namely: the Sacred Penitentiary, the Dataria, and the Roman Chancery.

The Penitentiary is a tribunal instituted for granting certain favors in the internal forum. Its office is to grant faculties of absolving from sins and censures reserved to the Pope, dispensations in vows and irregularities, and also generally in occult impediments of matrimony, as will be said more fully in its place. It also pertains to it to solve practical doubts, or to settle difficulties which are proposed to it.

The Sacred Penitentiary consists of one Major Penitentiary from the College of Cardinals, and of minor Penitentiaries taken from different religious orders. Pius IV reformed this Sacred Congregation in the year 1562, and St. Pius V completed the reform.

The Dataria has been so called from the style customary in Chanceries, because it notes the date, or epoch, of the favor conceded. It is a very ample tribunal by reason of the business referred to it, and of the favors which proceed from it. For from there proceed the erections, unions, divisions, and suppressions of Cathedral Churches, creations of new canonries or dignities, collations of reserved benefices, and public dispensations of impediments of matrimony.

The Dataria is constituted from a Datary, who is called Prodatary if he is a Cardinal, as almost always happens, a Subdatary, and several subordinate officials.

The Chancery wholly excels among the gracious tribunals. It is the tribunal of the Pontiff, through which Apostolic letters are drawn up, written, and expedited. The origin of that office is not certain. That office is of primary dignity, and its Chancellor precedes the other ministers of the Roman court. He has several officials under him, of whom some are major Prelates.

I answer: 2. Among contentious tribunals the Roman Rota holds the first place, about which we shall report very few things. Concerning its origin and the reason for its name there is not sufficient certainty. But the Roman Rota is a pontifical tribunal, instituted for taking cognizance of and deciding contentious causes brought from the whole Catholic world to the court of the Pontiff. The judges from whom this tribunal is constituted are twelve, taken from different parts of the Church. Among these, eight are Italians, two Spaniards, one Frenchman, and another German. Thus from the Constitution of Sixtus IV. All these are called auditors of the Roman Rota, because, as they say, formerly they were mere auditors and reporters of causes, but not judges properly so called.

- QUESTION 3. What is to be said concerning pontifical Bulls, Briefs, and Rescripts?

I answer: 1. Bulls are certain Constitutions of the Roman Pontiffs which for the most part regard weightier business, and are expedited in the Apostolic Chancery, inscribed on somewhat dark and thicker parchments, in Lombardic or Teutonic character. They are called Bulls from the seal, either leaden or golden, displaying on this side the images of the Holy Apostles Peter and Paul, but on that side the name of the Pontiff, which adheres to a cord of silk or hemp.

They obtain various names from various objects. Some are gracious, which contain the conferring of a favor. - Others are of justice, which regard the administration of justice. - Others are consistorial, which are expedited in the Consistory. - Others are half-bulls, which are made by a Pontiff not yet consecrated, and in the seal do not display the name of the same. Bulls are cited by the words with which they begin. Bullaria are called collections of Bulls.

Briefs are called certain Constitutions of the Roman Pontiffs for business for the most part lighter. Through the Secretary of Briefs, written on white and thin parchments, in Latin and in an elegant character, they are expedited. They have a seal of red wax, on which the image of St. Peter engaged in fishing is impressed, and therefore they are said to be expedited under the Ring of the Fisherman.

Rescripts are called responses of the Pontiffs to requests. There is a twofold kind of them. Some are issued after the manner of familiar letters, which the Supreme Pontiffs are accustomed to give either when they are petitioned by those with whom they have a special relation of friendship, or when they are asked for counsel as learned and pious men; nor is any force of obliging inherent in these, since they proceed more from courtesy of mind than from true authority. - Others are issued after the manner of Decrees by the Pontiffs, as successors of St. Peter and Pastors and Teachers of the universal Church; and consequently the greatest force is inherent in these, since through them pontifical right and supreme jurisdiction are exercised.

n. 129.

- QUESTION 4. Whether pontifical Epistles, and responses not inserted in the corpus of Law, have the force of law?

n. 129.

I answer: Yes, if their authenticity is established, and they have been sufficiently promulgated; namely, if they are published in that manner in which laws are usually published, or if from the usage and sense of the universal Church already for several centuries they are held as authentic and sufficiently promulgated. - St. Lig., no. 106. - Apostolic Man, no. 34.

…and 4 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 6 passages (filed under the subtopics)

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

n. 398.

§ III. On the Jurisdiction Which the Church Supplies

When jurisdiction is lacking, whether ordinary or delegated, the Church can supply it; indeed it cannot supply that which is not subject to its authority, for example, a defect of matter or form in the sacraments; but since jurisdiction is subject to its power, it can provide it extraordinarily, when it was not regularly conferred. This jurisdiction which the Church supplies differs from ordinary or delegated jurisdiction in this, that it is conferred only in the very act of confession and afterward is extinguished, whereas the other is given before confession and remains after absolution.

⁶ Suarez, disp. XXVI, sect. 4 and 6; Lugo, disp. XVIII, n. 15-40 and disp. XIX, n. 28-35; Salmantic., cap. 11, n. 72-77; Lacroix, 1548, 1559; Billuart, diss. VI, a. 4; St. Alphonsus, n. 560-563 and n. 571-574; Muller, § 137; Lehmk., n. 387-392; Haine, q. 73; Ball. P., n. 591-599 and n. 628-638; Marc, 1753-1756; Genicot, n. 330-332; Noldin, 345-351.

Now there are especially three cases in which the Church in fact supplies jurisdiction: 1° in the article of death; 2° in the case of common error; 3° in the case of probable jurisdiction.

n. 401.

II. On Common Error

"In common error or in a positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and internal forum (can. 209)."

By force of this canon, a colored title is no longer required with common error, and therefore all the difficulties previously raised concerning this title vanish.

But a priest who absolves outside the case of necessity, certainly knowing that he lacks a true title of jurisdiction, or jurisdiction legitimately conferred by a competent superior, sins gravely and indeed incurs suspension.¹

¹ Code, c. 2366.

But error is common when the confessor is judged by most of the faithful of some place to have jurisdiction; it is private when he is thought by only a few to possess it.

n. 402.

By right and deservedly the Church wishes to provide for the common utility; but when the error is private, it does not supply jurisdiction, because the utility of a few is not a sufficient reason for departing from the general rules; moreover he who has been thus deceived can be instructed by others, and thus correct the defect admitted.

n. 403.

III. On Speculatively Probable Jurisdiction

Speculatively probable jurisdiction is present when, antecedently to confession, a priest, according to an interpretation of the law which is not certain but truly probable, or with a positive doubt of law, enjoys jurisdiction in the case.

n. 404.

Now in this case the confessor acts validly, because the Church certainly supplies jurisdiction, if it is truly lacking, from c. 209 of the Code.

Indeed the priest who absolves with probable jurisdiction acts licitly, at least when a grave reason is present, as St. Alphonsus says (n. 573): for the Church willingly supplies jurisdiction when a just cause is present; but it is not judged to wish confessors to rely on probable jurisdiction without a reasonable cause. - Yet not a few, with Lugo and Ballerini,² think this is licit even without a special reason, since it is certain that in this case jurisdiction is supplied; and this opinion is truly probable.

² Lugo, disp. XIX, n. 30; Ballerini P., n. 631-635; on the contrary, cf. Vindic. Alphons., p. 485-501.

n. 405.

2° But doubtful jurisdiction is that whose uncertainty depends upon a fact, for example, when there is doubt whether jurisdiction was granted by the Superior, whether it still endures or has expired, whether such a censure is reserved or not. Now even in this case the Church supplies jurisdiction, from the same canon 209; but it is not licit to use this without a grave reason.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 21 passages (filed under the subtopics)

Vol. I, Tr. III, Ch. II, Appendix II: On the Roman Curia

n. 315.

I. - General Notions

— Notion. The Roman Curia designates the complex of institutions which are present to the Roman Pontiff in the exercise of his jurisdiction and universal power. Insofar as they make one with the Supreme Pastor, they are called by the common name of the Holy See. But the Pontifical Court comprises those administrations which belong to the Supreme Pontiff insofar as he is temporal Prince; and the Vicariate of the City signifies both the Cardinal who, as Vicar of the Roman Bishop, administers the Roman diocese, and the various persons and offices which compose the diocesan curia of the City.

"The Roman Curia consists of the Sacred Congregations, Tribunals, and Offices" (c. 242).

n. 316.

— Common rules. 1. Common points to be noted. (Cf. cc. 242-244).

Norms of acting are prescribed by the Supreme Pontiff.
All who belong to the Roman Curia are bound by the law of secrecy, which is of varied strictness, and is most severe in the Holy Office, in the Sacred Consistorial Congregation (as regards information concerning new bishops), and in the Secretariat of State.
Whatever grave and extraordinary matter is being transacted must first be made known to the Supreme Pontiff.
With the exception of the sentences of the Tribunal of the Rota and of the Apostolic Signatura, and of special faculties granted, any graces and resolutions need pontifical approval.
Controversies concerning competence are settled by a special assembly of Cardinals whom the Supreme Pontiff shall designate in each single case.

n. 317.

II. - On the Sacred Congregations — A. - On the Sacred Congregations in Common

— 1. Constitution. The Sacred Congregations are constituted essentially of Eminent Cardinals, one of whom presides as Prefect. Nevertheless the Supreme Pontiff presides over a few; in which case there is a Cardinal Secretary to direct the Congregation. To a Sacred Congregation there belong, next, the Secretary and the Under-Secretaries (one or more) as major Officials; Consultors; and minor Officials.

Most Congregations have a province defined by matter; yet a territorial, but more general, province is assigned to the Sacred Congregations of Propaganda Fide and for the Eastern Church.

Competence:

a) In the province entrusted to them, the Congregations make general decrees and instructions which, although they do not contain the supreme exercise of legislative power, nevertheless oblige by way of law those to whom they are directed ¹. These, as being more grave, must be approved by the Supreme Pontiff;

b) They give authentic interpretations in the matter subject to them, whether through general decrees, or through rescripts, or through sentences in causes solved by the administrative way.

These, in matters defined, oblige the persons for whom they have been given (c. 17, § 3); prudently applied, they furnish for all a secure norm of acting; yet of themselves they do not have the force of law (c. 17, § 3), unless they are promulgated as general. Cf. the things said n. 286.

Wherefore of themselves they do not affect other persons or other cases, nor do they remove the probability of a different opinion. And it must carefully be observed whether or not they have been given dependently upon certain circumstances. Yet easily, whether from repeated declaration, or from the consent of experts who, weighing the matter anew, have added their vote to the interpretation given, declarations independent of circumstances induce a custom by connivance which obliges. Cf. the things said n. 289.

As we said there, insertion in the official Commentary A. A. S. effects: a) that these things be authentically established; b) that they be juridically promulgated when formally or virtually they are general. Therefore of itself it does not convert rescripts into laws. But when every mention of those to whom the rescript has been given is omitted, the authentic interpretation seems to be proposed to all, and consequently imposed upon all. Those things which are not inserted seem less definitive.

But doctrinal decrees in a matter of faith or morals, although according to themselves they are not infallible, nevertheless are of such great authority that - with the distinction of a particular and a general response always preserved - by the very virtue of faith, or by the moral virtue to which the matter pertains, we are obliged not only not to contradict externally, but also to furnish internal assent, which cannot be denied without temerity. Cf. Wernz, I, n. 143 note 47; Lehmkuhl, I, n. 300 and 429.

c) They bestow dispensations and graces in the matter subject to them, whether from the positive approval, or even mandate, of the Pontiff (ex audientia SS.), or from special faculties committed to them;

d) They settle causes by the disciplinary and administrative way. In this way, the forms of trials are not to be observed, and positive precepts are not rarely mixed with a juridical solution. If you except the Holy Office, which continues to judge heresy and delicts which induce suspicion of heresy, the Sacred Congregations are no longer tribunals; but only extraordinarily, from a commission of the Supreme Pontiff, do they take cognizance of causes judicially. These decisions are to be transferred to other cases only circumspectly.

Finally it is clear that by the mandate or specific approval of the Supreme Pontiff it can happen that decrees of a Sacred Congregation become true and properly so called universal laws.

¹ This competence is indirectly affirmed by Benedict XV in the Motu Proprio of 15 Sept. 1917, n. II, where he exhorts the Sacred Congregations to issue Instructions rather than new General Decrees (A. A. S. IX, 183, or Periodica, IX, 16).

n. 318.

B. - On the Individual Congregations

— 1. The Congregation of the Holy Office (c. 247), which before the Constitution Sapienti Consilio, 29 June 1908, was more fully called that of the Sacred Roman and Universal Inquisition, is supreme; it has the Supreme Pontiff as president; it protects the doctrine of faith and morals.

It judges, whether in first instance, when delicts are directly referred to it, as is permitted, or in grade of appeal from the tribunal of the Ordinary of the place, criminal causes of heresy and of delicts which induce suspicion of heresy; it moderates the use of the Pauline privilege, and the impediments or dispensations of disparity of cult and mixed religion; it decides concerning the censorship and prohibition of books (in place of the suppressed Sacred Congregation of the Index); and it alone is competent concerning the Eucharistic fast for priests celebrating (c. 249). For its competence it has, besides consultors, qualifiers (of propositions), and a section on the censorship of books.

n. 319.

— 2. The Consistorial Congregation (c. 248) has the Supreme Pontiff as president. It prepares the things to be transacted in Consistories, and, outside the places subject to the Sacred Congregation of Propaganda Fide, it rules all things which pertain to the constitution, division, conservation, and state of dioceses, and to the government of bishops or quasi-bishops (c. 248).

n. 320.

— 3. The Congregation concerning the discipline of the Sacraments (c. 249) cares for the laws concerning the discipline of all the sacraments.

Wherefore to it pertain causes concerning the validity of marriage or sacred ordination which are treated without observing the judicial order; matrimonial dispensations, and dispensations in the qualities of those to be ordained or of the one ordaining. Unless it wishes to remit the cognition to the Sacred Rota, it exclusively takes cognizance concerning the non-consummation of marriage and concerning causes for dispensing upon a ratified marriage. It dispenses in the Eucharistic fast for communion. To the Holy Office there remain its rights defined above, v.g. those which regard doctrine and principles concerning the sacraments; religious, if you except only dispensation from the fast for communion ¹, must ask all things from the Sacred Congregation concerning Religious; and those things which pertain more closely to rites are reserved to the Congregation of Sacred Rites.

¹ This very cause is still under judgment.

n. 321.

— 4. The Congregation of the Council (c. 250), which, after the Constitution Sapienti, lost the more solemn name, Sacred Congregation of Cardinals Interpreters of the Sacred Council of Trent, is placed over the universal discipline of the secular clergy and of the Christian people.

Accordingly it cares for all things, with the exception of the Eucharistic fast, which regard the precepts of the Church, Mass stipends and obligations, pious legacies, occupation of ecclesiastical goods, benefices, offices, and also sodalities, with Third Orders excluded.

Saving the right of the Congregation concerning Religious and of the Ceremonial Congregation, it solves controversies concerning precedence, and questions concerning ecclesiastical immunity. It admits to composition those who have occupied ecclesiastical goods, even goods of religious. Outside places subject to the Sacred Congregation of Propaganda Fide, to it are attributed all things which refer to the celebration and recognition of Councils and to assemblies or conferences of bishops.

n. 322.

— 5. The Congregation set over the affairs of religious sodales (c. 251) is the proper Congregation of religious; by which name there also come here those who, although without vows, nevertheless lead life in common after the manner of religious.

Wherefore to it privatively pertain all questions which touch a religious family or religious sodales, even if they are disputed with non-religious, v.g. bishops. Nevertheless then, especially at the instance of the party, it can remit the question to another Congregation.

To it are reserved dispensations from the common law for religious. This, after the responses of a special assembly of Cardinals, 24 March 1919 ¹, is understood very broadly: v.g. concerning dispensations in observing the rites of Mass, in an impediment to receiving Order, which non-religious would have to obtain from the Congregations of Sacred Rites and of the Sacraments.

To the same Congregation exclusively pertain questions which regard secular Third Orders.

The right of the Sacred Congregation of the Council is preserved intact in confraternities or all pious unions ², in compositions for usurped ecclesiastical goods; and the right of Propaganda Fide of ruling religious insofar as they are missionaries, and of more fully moderating, even in Europe, societies of ecclesiastics and seminaries which have been founded exclusively for instituting missionaries for foreign missions.

Universities of Studies, even if they are administered by religious, pertain to the Sacred Congregation concerning Seminaries and Studies.

To the Sacred Congregation concerning Religious there is joined a special Commission concerning the approval of new Institutes.

¹ A. A. S. XI, 251, or Periodica X, 98.

² Cf. Periodica, V, 89.

n. 323.

— 6. The Congregation of Propaganda Fide (can. 252) is placed over the work of spreading the Gospel; and in regions where the sacred hierarchy has not yet been constituted, or is still in an inchoate state, it possesses a sufficiently universal jurisdiction, which extends to religious themselves, both singly and taken together, insofar as they are missionaries ³.

Outside regions of the missions it is not competent, if nevertheless you except its full power over Societies of Missionaries and Seminaries. And concerning faith, concerning matrimonial causes, and concerning rites to be moderated or interpreted, it must refer to the competent Congregations.

³ Indeed several religious institutes of missionaries, v.g. Cong. Cordis Immaculati B. M. V. (Scheutensis), Missionariae Franciscanae Mariae, have already obtained that even as religious they be subject to the Sacred Congregation of Propaganda Fide.

— 7. The Congregation of Sacred Rites (c. 253) cares for those things which most closely regard the sacred rites of the Latin Church; and it treats all things which in any way refer to the beatification and canonization of Servants of God, or to sacred relics.

It has Prelate Officials and distinct Consultors for causes of Beatification and Canonization and for Sacred Liturgy.

n. 325.

— 8. The Ceremonial Congregation (c. 254) moderates the ceremonies to be observed in the pontifical chapel and court, the sacred functions of the Fathers Cardinals, and questions concerning the precedence of Cardinals and Legates at the Holy See.

n. 326.

— 9. The Congregation for extraordinary ecclesiastical affairs (c. 255) treats concerning the state and government of dioceses, whenever it is necessary to deal with civil governments, and it applies itself to those affairs which are proposed to it by the Supreme Pontiff through the Cardinal Secretary of State, "especially from those which have something connected with civil legates and refer to agreements made with various Nations."

To this Congregation, as also to the Ceremonial Congregation, no Prefect is assigned.

n. 327.

— 10. The Congregation concerning Seminaries and Universities of Studies (c. 256) exercises vigilant jurisdiction over Seminaries, with the right of the Congregation of Propaganda Fide defined above remaining unharmed, and over Universities or Faculties which depend upon the Holy See, even if they are directed by a religious family.

n. 328.

— 11. The Congregation for the Eastern Church (c. 257) has the Supreme Pontiff as president; it cares for the affairs of the Eastern Church, for which it supplies for the other Congregations, with the exception of the Holy Office, and it also settles mixed questions, or those which touch Latins and Orientals at the same time.

n. 329.

— 12. There is, besides, a Congregation not named in the Code, that of the Reverend Fabric of St. Peter, which, besides the care of the Basilica, has in common with the Sacred Congregation of the Council the faculty of reducing burdens of Masses and of pious legacies. With this case excepted, the Sacred Congregations today are not accustomed to have or exercise any cumulative power.

n. 330.

III. - On the Tribunals

— The tribunals of the Roman Curia are numbered as three: the Sacred Penitentiary, the Sacred Roman Rota, and the Supreme Tribunal of the Apostolic Signatura. Nevertheless there remain to the Holy Office and to the Congregation of Sacred Rites their rights in causes proper to them. Therefore:

n. 331.

— 1. The Sacred Penitentiary (c. 258), over which the Cardinal Major Penitentiary is placed, grants graces, dispensations, sanations, condonations for the internal forum alone, though also for the non-sacramental forum, and besides examines and settles questions of conscience.

Wherefore all can write to it and obtain a response concerning their matters of the internal forum or concerning cases of conscience. Letters are inscribed "To the Sacred Penitentiary" or "To the Cardinal Penitentiary," - Palazzo del S. Uffizio. - The person whose interest is involved, since the matters are customarily secret, is designated by the name Titius or Titia. The one signing the letters indicates the domicile to which the response is to be sent and inserts a postage stamp in his letters. Responses are given gratis. Letters can be written in Latin, Italian, or French. (Rescripts of the Sacred Congregations generally are deposited in the office of the Sacred Congregations themselves, and afterward are sought by the Agent or by the one who presented the petitions.)

Besides, it judges concerning the concession of indulgences and solves doubts concerning indulgences. Nevertheless it belongs to the Holy Office to explain dogmatic points concerning indulgences and to pronounce sentence concerning new prayers or devotions. Wherefore, for the section concerning indulgences, consultors of the Sacred Penitentiary are joined.

n. 332.

— 2. The Sacred Roman Rota (c. 259; cf. cc. 1598-1601) is the ordinary tribunal of appeal.

In the external forum it judges in second instance all causes legitimately devolved to the Holy See by appeal; in last instance, causes known by the Sacred Rota or by other tribunals in second or further instance, but which have not yet passed into a res judged, and in first instance causes committed to it by the Roman Pontiff: in which case the Rota itself, by means of turns of three auditors who succeed one another, settles those same causes in second and third instance. Rotal advocates are joined to the Rota.

n. 333.

— 3. The Supreme Tribunal of the Apostolic Signatura (c. 259; cf. cc. 1602-1605) consists of some Cardinals of the Holy Roman Church, of whom one performs the function of Prefect. Besides certain special causes, it judges, as a court of cassation, concerning a complaint of nullity against a rotal sentence.

It has this as proper to itself, that it can indeed add the reasons for its sentences, but is not bound to do so. To this Tribunal, after the chirograph of 28 June 1915, there were added, in place of Consultors, seven Prelate Voters of the Signatura, and Prelate Referendaries. Cf. A. A. S. VII, 310-325.

IV. - On the Offices of the Roman Curia

There is:

n. 334.

— 1. The Apostolic Chancery (c. 260), which expedites bulls for the provision of consistorial benefices and offices (i.e. those which are conferred in consistory, such as bishoprics outside places of the missions) and for the greater affairs of the Church. Over it presides the Cardinal Chancellor of the Holy Roman Church.

The Apostolic Datary (c. 261) is occupied with the collation of non-consistorial benefices which are reserved to the Supreme Pontiff; it also cares for the annexed burdens. Over it presides the Cardinal Datary of the Holy Roman Church.
The Apostolic Camera (c. 262) cares for and administers the temporal goods and rights of the Holy See, especially when the See is vacant. Over it presides the Camerarius of the Holy Roman Church.
The Secretariat of State (c. 263) consists of three parts:

a) The first, concerning extraordinary affairs;

b) The second, concerning ordinary affairs;

c) The third, which the Chancellor of Apostolic Briefs directs, concerning the expedition of Briefs.

The Cardinal Secretary of State moderates this Secretariat.

The Secretariats of Briefs to Princes and of Latin Letters (c. 264) write in Latin the acts committed to them by the Supreme Pontiff.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 14 passages (filed under the subtopics)

Vol. II, Appendix II: Explanation Of The Sense Of Some Words Which Often Occur In The Responses Of The Holy Roman Congregations

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, First Question: On Ecclesi…, Article I: On the Author of Ecclesiastical Law · Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question Second: On the Gr…, Article II: On Supplied Jurisdiction

Dilata, that is, the response is deferred, so that the matter may be subjected to more mature examination, as being of difficult solution.

n. ¶2.

Affirmative et amplius, - Negative et amplius, i.e. when the matter has been discussed sufficiently and more than sufficiently in the Sacred Congregation, and decided by full votes as it lies, such a question is no longer admitted.

n. ¶3.

Nihil, i.e. the petition is not admitted, as incongruous.

n. ¶4.

Relatum or Lectum, i.e. when the request had been reported or read in the Sacred Congregation, it was not admitted.

n. ¶5.

Reponatur, or no response is given, but the petition is deposited in the Archives of the Sacred Congregation.

n. ¶6.

Detur decretum generale. It obtains when there is question of a grave matter which is neglected by many.

n. ¶7.

Non congruere, - Non expedire, i.e. the Sacred Congregation does not think it fitting that what is asked be conceded; therefore it does not will to bestow the grace petitioned, nor does it bestow it.

n. ¶8.

Orator rem deferat ad Ordinarium et ejus judicio se dirigat, or that the thing requested is not conceded by the Sacred Penitentiary, but is remitted to the Ordinary, that, if he has the faculty, he may provide for the matter according to his prudence; otherwise either he may obtain the faculty, or, if he shall have judged that this is not expedient, he may enjoin what is to be enjoined.

n. ¶9.

In decretis, - In decisis, or that prayers not heard and repeated by the petitioner are not to be heard.

n. ¶10.

Ad mentem, or that besides the solution of the doubt something else is noted or declared by the Sacred Congregation, which, if it has been secret, is manifested only to those to whom the response will be directed; otherwise it is added to publicly drawn-up writings with these words: the mind is, etc.

n. ¶11.

Facto verbo cum Sanctissimo, or: Ad Dominum Secretarium cum Sanctissimo, or that the Congregation does not have the faculty of conceding the grace, and therefore the Secretary is enjoined to refer the Rescript of the Sacred Congregation to the Supreme Pontiff, who is accustomed to approve the judgment of the Congregation and to concede the grace.

n. ¶12.

Providebitur in casibus particularibus, or that the case which was proposed generically and indeterminately must be proposed determinately.

n. ¶13.

Gaudeat impetratis, or that the petitioner ought to be content with the grace obtained, and that its extension, or another which is newly requested, is not conceded.

n. ¶14.

Sanctissimus annuit pro gratia, arbitrio et conscientiae Episcopi, or that the grace has been conceded and nothing is lacking that it may have full effect, except execution, which the delegate cannot deny, unless perhaps there underlies some canonical cause, not exposed to the Holy See, which impedes it by law.¹

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 1 passage (filed under the subtopics)

Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. II, ARTICLE I: ON ECCLESIASTICAL LAW

n. ¶174.

- Quaer. 8° What is the sense of certain clauses which often occur in the responses of the Sacred Congregations?

Resp. Especially the following are accustomed to occur.

a) Dilata, that is, the response is deferred, so that the matter may be subjected to maturer examination, as being of difficult solution.

b) Affirmative et amplius, - Negative et amplius, that is, when the matter has been discussed enough and more than enough in the Sacred Congregation, and has been decided as it lies by full votes, such a question is no longer admitted.

c) Nihil, that is, the petition is not admitted, as unsuitable.

d) Relatum or Lectum, that is, when the request had been reported or read in the Sacred Congregation, it was not admitted.

e) Reponatur, or no response is given, but the petition is placed in the Archives of the Sacred Congregation.

f) Detur decretum generale. This obtains when there is question of a grave matter which is neglected by many.

g) Spectare ad Episcopum, or Orator adeat Episcopum, namely that he himself provide according to canonical ordinances, not according to his own whim.

h) Non congruere, - Non expedire, that is, the Congregation does not think it fitting that what is asked be conceded; therefore it does not will to grant the sought grace, nor is it granted.

i) Orator rem deferat ad Ordinarium et ejus judicio se dirigat, or the thing requested is not conceded by the Sacred Penitentiary, but is remitted to the Ordinary, so that, if he has the faculty, he may provide for the matter according to his prudence; otherwise he should either obtain the faculty, or, if he judges that this is not expedient, he should enjoin what must be enjoined.

j) In decretis, - In decisis, or the prayers, not heard and repeated by the petitioner, are not to be heard.

k) Ad mentem, or besides the solution of the doubt something else is observed or declared by the Sacred Congregation, which, if it is secret, is manifested only to those to whom the response is directed; otherwise it is added to writings publicly drawn up with these words: the sense is, etc.

l) Facto verbo cum Sanctissimo, or: Ad Dominum Secretarium cum Sanctissimo, or that the Congregation does not have the faculty of granting the grace, and therefore the Secretary is ordered to refer the Rescript of the Sacred Congregation to the Supreme Pontiff, who is accustomed to approve the judgment of the Congregation and to grant the grace.

m) Providebitur in casibus particularibus, or that the case which was proposed generically and indeterminately must be proposed determinately.

n) Gaudeat impetratis, or the petitioner ought to be content with the grace obtained, and the extension of the same, or another which is newly requested, is not conceded.

o) Sanctissimus annuit pro gratia, arbitrio et conscientiae Episcopi, or the grace has been conceded and nothing is lacking for it to have full effect except execution, which the delegate cannot deny unless perhaps there underlies a canonical cause, not set forth to the Holy See, which by law impedes it. (O) p. 479.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 32 passages (filed under the subtopics)

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, First Question: On Ecclesi…, Article I: On the Author of Ecclesiastical Law

324. All those can make law who enjoy perfect public power of ruling, or political jurisdiction, over a perfect community or a part of it. In the Church, power, from the will of Christ, belongs by ordinary divine right to the Supreme Pontiff (Mt. XVI, 19; Jn. XXI, 15-18) and to bishops (Mt. XVIII, 18; XXVIII, 20); by ecclesiastical right it can be conceded also to others. But one kind is called ordinary, had by force of one's own office; another delegated, from a special commission of him who has ordinary power (c. 197, § 1). Hence they can make laws who enjoy:

This is always vicarious, or to be exercised in the name of another; but ordinary power can be proper or vicarious according as it is exercised in one's own name or in the name of another. But that difference does not regard legislative power.

a) ordinary perfect jurisdiction in the external forum:

the Supreme Pontiff for the whole world and any part of it (c. 218), whether alone, or with others, e.g., Roman Congregations, by whose aid he composes or issues decrees which he himself confirms;

a Council: an ecumenical council (c. 228) confirmed by the Roman Pontiff (c. 227) for the whole Church; a plenary council for its territory (c. 290), e.g., a national council for a nation, a provincial council for a province; but the decrees of particular councils cannot be promulgated before they have been reviewed by the Sacred Congregation of the Council (c. 291, § 1); likewise a diocesan synod for a diocese (c. 356);

bishops for their subjects, even outside a synod (c. 362); likewise, when the see is vacant, the chapter of the cathedral church (c. 429 and 431) or the college of consultors (c. 427) and the capitular vicar (c. 435), although this is not expedient unless for urging laws previously enacted or there is need during a very long vacancy, yet in such a way that "nothing be innovated" (c. 436); likewise those who exercise episcopal jurisdiction, such as prelates nullius and exempt prelates for the territory subject to them (c. 323); likewise apostolic vicars and prefects for their region (c. 294), and apostolic administrators permanently constituted (c. 315);

religious Orders and exempt clerical religions in general chapter (c. 501, § 1);

b) or jurisdiction delegated by the Pontiff: legates, nuncios, etc., for the region to which they are sent and according to the tenor of the concession and of their faculties; likewise vicars general by special delegation of the bishop;

c) but not those who lack such jurisdiction:

rectors of lower communities: parishes, monasteries, sodalities, universities, a non-exempt religion (c. 501, § 1), etc.; their statutes, however, can have the force of obligating from the pact or vow of subjects, or from dominative authority, or from the will of the legislator;

superiors general or general chapters of a lay religion even if exempt, because only clerics are able to obtain jurisdiction in the Church (c. 118);

abbesses or superioresses: for although by domestic authority they can command, nevertheless no power of jurisdiction in the Church belongs to women.

Vol. III, Special Moral Theology: On…, Treatise: On Penance, Fourth Part: On the Minist…, Question Second: On the Gr…, Article II: On Supplied Jurisdiction

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

n. 584.

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

n. 584.

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

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

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

It is said:

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

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

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

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

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

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

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

A. The Church supplies in common error:

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

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

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

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

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

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

Vol. I, Tr. III, Pt. II, Ch. III, Article I. On the Sacred Congregations · Vol. I, Tr. III, Pt. II, Ch. III, Article II. On the Tribunals of the Roman Curia · Vol. I, Tr. III, Pt. II, Ch. III, Article III. On the Offices of the Roman Curia · Vol. II, Tr. XV, Pt. III, Ch. I, Article I. On the Power of Jurisdiction in General · Vol. II, Tr. XV, Pt. III, Ch. I, Article II. On the Jurisdiction of Confessors

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

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 18 passages (filed under the subtopics)

Ch. II, Question II: Concerning the Jurisdiction Which the Church Supplies

n. ¶3301.

St. Thomas, q. 8, a. 6.

n. ¶3302.

I. What supplied jurisdiction is. - When jurisdiction is lacking, whether ordinary or delegated, the Church can supply it, that is, confer it extraordinarily when it was not regularly conferred. Nevertheless she does not do this except for a grave cause, on account of the common good of souls.

n. ¶3303.

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

n. ¶3304.

II. Concerning jurisdiction in danger of death, canon 882 is valid:

n. ¶3305.

"In danger of death all priests, although not approved for confession, validly and licitly absolve penitents from any sins whatever, with the prescription of can. 884 and 2252 remaining safe."

n. ¶3306.

It is said: 1) in danger, namely grave or proximate danger, and not only in the article of death, when death already so threatens that it will follow with moral certainty, but also when it is in some way imminent, so that because of circumstances it can occur shortly, as easily and rather often happens. Concerning this one must judge from indications and conjectures, so that it can prudently be feared that death may follow shortly; whence a merely subjective persuasion of the priest or family does not suffice. Nevertheless if someone through error has judged that danger is present, but prudently on account of a grave reason, the absolution will be valid as given in a positive and probable doubt, as will be said in the following number;

n. ¶3307.

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

n. ¶3308.

all priests, even irregular, suspended, excommunicated, schismatic, heretical, apostate, provided they have been validly ordained;

n. ¶3309.

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

n. ¶3310.

with the prescription of can. 884 and 2252 remaining safe; where a twofold restriction is placed: a) according to can. 884, absolution of an accomplice, outside the case of necessity, remains illicit on the part of the confessor; b) according to can. 2252: "Those who, constituted in danger of death, have received absolution from some censure ab homine or from a censure reserved to the Apostolic See in a most special manner, from a priest lacking special faculty, are held, after they have recovered, by the obligation of recurring, under penalty of falling again, to him who brought the censure, if it concerns a censure ab homine; to... someone furnished with faculty (of absolving),... if it concerns a censure by law; and of obeying their commands."

n. ¶3311.

III. Concerning the case of common error and doubtful jurisdiction, can. 209 says:

n. ¶3312.

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

n. ¶3313.

A. The Church supplies in common error: 1) If in a place or community morally all, or absolutely or relatively many, think that someone has jurisdiction, e.g., that he is pastor or approved for confessions; she does not supply if one or another erroneously thinks this, or a private group or an altogether small religious community. Namely the utility of a few is not a sufficient reason for departing from the general rule; moreover, he who has been deceived can be instructed by another and thus correct the defect admitted.

n. ¶3314.

Whether, however, the Church supplies if the error is not yet common, but only the foundation of error is known to several, and especially if only a fact has been publicly posited which of itself is apt to induce many into error if they knew it, as many now affirm, calling it virtual error: this can be doubted, both because the cause of error is not yet error, and because the canon wished to settle controversies previously existing, but could not have regard to new questions not yet arisen; for how can the legislator be supposed to have intended what until now had been proposed by no one and what he himself could not even suspect?

n. ¶3315.

Nevertheless it is generally asserted, and is valid even in particular error, what we read in can. 207, § 2: "A power having been conceded for the internal forum, an act posited through inadvertence, after the time has elapsed or the number of cases has been exhausted, is valid."

n. ¶3316.

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

n. ¶3317.

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

n. ¶3318.

Thus a confessor doubting whether in can. 873 and 514, § 1 those dwelling day and night in a religious house can be understood as those who remain there only one day and night, or whether on the contrary more time is required so that they can be said to be dwelling, will be able to follow the milder probable opinion.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 18 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On Law in General, Who can make laws?

n. 1.

I say 1°: Legislative power belongs to the community, or to him who bears the care of the community ¹. ¹ Ibid. a. 3, c.

n. 2.

It is proved. To found law belongs to him whose it is to provide for the common good; because, as was said, laws are enacted on account of the common good. Yet to provide for the common good belongs to the community, or to him who has the care of the community; for as particular good is an end proportioned to a particular agent, so the common good is an end proportioned to the community, or to him exercising its functions. Ergo.

n. 3.

But true, because this governing and legislative power cannot easily be exercised by the whole multitude — for it would be difficult for all and singular to assemble at once as often as provision must be made for things necessary to the common good and for enacting laws — therefore the multitude is wont to transfer its right, or governing power, either into certain men from every condition of the people, and it is called democracy; or into few optimates, and it is called aristocracy; or into one only, whether for himself alone or for successors by hereditary right, and it is called monarchy.

n. 4.

This legislative power over Christians, especially the just, the Lutherans and Calvinists deny to the Church, herein following the Waldenses, Wiclif and John Hus condemned in the council of Constance. Against whom

n. 5.

I say 2º: There exists in the Church of Christ legislative power.

n. 6.

It is proved 1° by tradition. The Apostles themselves, Act., XV, 28 et 29,

n. 7.

¹ ¹ Ibid. a. 3, c.

n. 8.

enacted the law of abstaining from things strangled and from things sacrificed to idols. And ibid., 41, it is said of Paul: He went about..., commanding them to keep the precepts of the Apostles. From which it is understood that this law of the Apostles was not directive only, as heretics feign, but also preceptive. From the Apostles until now, the Church through holy Pontiffs and councils has founded laws which all the faithful have venerated.

n. 9.

2° By reason. The Church of Christ is a republic well ordered; for Christ did not fail her in anything. Yet in every well-ordered republic there ought to be, for emerging circumstances and necessities, legislative power: otherwise it will collapse. Ergo.

n. 10.

Now this power resides in the supreme Pontiff and general councils legitimately assembled, for the whole Church; in legates, for the provinces of their legation; in bishops, with counsel of chapter, for their diocese; in national and provincial councils, for the nation or province; in general assemblies of religious orders, for the whole order.

n. 11.

[Obj. 1°: Either Christ sufficiently provided for his Church, or not. Second alternative is wickedness of the day. If the first, ergo human laws are superfluous.

n. 12.

I answer. That Christ sufficiently provided for his Church by founding essential laws and leaving to the Church itself the power of founding those which ought to arise from the former, according as he should judge expedient for the common good by exigency of circumstances, persons and places. For it appears that this power is necessary to the Church, that she may be able to rule the Christian people fittingly.

n. 13.

Obj. 2º from heretics and especially Protestants: The Church is a certain college existing within an empire and under territorial power or superiority. Yet any college whatsoever has not the right of founding laws, but is subject to the laws of the empire; for it is repugnant that in the same republic there be two supreme legislators. Ergo.

n. 14.

I answer. I deny the major. 1º The Church is a society, city and kingdom perfect, as it is described in sacred letters and by the Fathers. This society is not confined within the limits of one civil empire, but embraces the whole world, because Christ came into the world that he might save all men, I Tim., II, 4. Whence he willed his Church diffused everywhere to be one, and this association to be bound and joined together with the same bonds in those things which pertain either to faith or to morals. He willed moreover that it be perpetual, and promised that it would endure unto the consummation of the world, Matth., XXVIII, 20. All which do not suffer the straits and instability of temporal empires. 2º Colleges cannot be instituted without permission of the prince, who can suppress them if their affairs and ends pertain to the genus of things committed to him. Yet the Church was instituted, not only without permission of princes, but while they contradicted and strove to destroy her, and the affairs which she has charge of do not pertain to the genus of things committed to the prince. Ergo she is not constituted under the authority of the prince. 3° Indeed two supreme legislators cannot coexist in the same republic, supposed that both powers be exercised in the same genus and have the administration of the same thing. But the genus of both civil and ecclesiastical power differs entirely, because the things committed to each differ entirely. This indeed has charge of sacred and divine things, and watches over spiritual and eternal goods of the faithful; that, governing civil society, studies earthly and temporal goods of citizens. Each therefore is supreme in its own things, each having its parts. Whence it is falsely asserted that a state within a state is constituted, if the Church vindicates to herself legislative power in her own order. Hence Jerome used to say, Ep. 77, ad Ocean., n. 2: « Other are the laws of the Caesars, other those of Christ; another thing Papinian commands, another our Paul. » And Pope Gelasius, in can. Duo sunt, dist. 96: « Two there are by which this world is principally ruled, the sacred authority of priests and the royal power. »]

n. 15.

I say 3°: Legislative power does not depend upon probity of life. Whence every prince holds it, as well secular as ecclesiastical, whether good or evil.

n. 16.

It is proved. Christ himself, Matth., XXII, 21, commanded tribute be paid to Caesar, a heathen prince. Ibid., XXIII, 2 et 3, he commands obedience to Scribes and Pharisees commanding according to the law, though wicked and impious. The Apostle, ad Rom., XIII, 4 et 5, teaches that princes, even infidels, are ministers of God, and that they must be obeyed, not only because of wrath, but also for conscience' sake. The same, ad Tit., III, 1, and 1 Petr., II, 13-15. Whence the following propositions were justly condemned in the council of Constance, first session, 8: « No one is civil lord, no one prelate, no one bishop, while he is in mortal sin. » It is 13 of Wiclif. The other, session XV: « No one exercises the office of Christ or Peter unless he follow him in morals. » It is 12 of John Hus.

n. 17.

You will ask of how many kinds laws are.

n. 18.

I answer. that they are of fourfold kind ¹. One is eternal; another natural; another divine positive, and this twofold, old and new; another human, and this again twofold, ecclesiastical and civil. ¹ Here q. 91. — 2. Here q. 91, a. 1, c.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 18 passages (filed under the subtopics)

Vol. I, Tr. III, Pt. II, Ch. III, Article I. On the Sacred Congregations

Over each Congregation there presides a Cardinal Prefect, or, if the Roman Pontiff himself presides over them, a Cardinal Secretary directs them; to these are joined the Cardinals whom the Pontiff shall have judged should be assigned to them, together with other necessary ministers (Can. 246).

§ 1. The Congregation of the Holy Office, over which the Supreme Pontiff himself presides, protects the doctrine of faith and morals.

§ 2. It judges concerning those delicts which are reserved to itself according to its own proper law, with the power of seeing these criminal causes not only in the grade of appeal from the Tribunal of the local Ordinary, but also in first instance, if they have been brought directly to it.

§ 3. It alone takes cognizance of those matters which, whether directly or indirectly, in law or in fact, concern the privilege, as they say, Pauline, and the matrimonial impediments of disparity of cult and mixed religion; and likewise the faculty of dispensing in these impediments pertains to it. Wherefore any question whatsoever of this sort is to be referred to this Congregation, which nevertheless can, if it so judges and the case bears it, remit the question to another Congregation or to the Tribunal of the Sacred Roman Rota.¹

§ 4. To the same Congregation pertains not only to examine diligently books brought before it, to prohibit them if need be, and to grant dispensations; but also to inquire ex officio, by whatever way will be more opportune, what writings of any kind should be condemned when they are published among the people, and to bring back to the memory of Ordinaries how religiously they are bound to take notice of pernicious writings and to denounce them to the Holy See, according to the norm of can. 1397.

§ 5. It alone is competent concerning all those things which regard the eucharistic fast for priests celebrating Mass (Can. 247).

§ 1. The Prefect of the Consistorial Congregation is the Roman Pontiff himself. Besides others, there belong to it ex officio the Cardinal Secretary of the Holy Office, the Prefect of the Congregation of Seminaries and Universities of Studies, and the Secretary of State. Among its Consultors there are always the Assessor of the Holy Office, the Secretary of the Congregation for Extraordinary Ecclesiastical Affairs, and the Secretary of the Congregation of Seminaries and Universities of Studies.

§ 2. To this congregation it pertains not only to prepare the matters to be treated in Consistories, but besides, in places not subject to the Congregation of the Propagation of the Faith, to constitute new dioceses and provinces and chapters, both cathedral and collegiate; to divide dioceses already constituted; to propose Bishops, Apostolic Administrators, Coadjutors, and Auxiliaries of Bishops to be constituted; to order canonical inquiries or processes concerning those to be promoted, and diligently to weigh the acts and scrutinize their doctrine, saving the prescript of can. 255.

§ 3. On this Congregation depend all those things which pertain to the constitution, conservation, and state of dioceses. Wherefore it watches over the fulfilled or less fulfilled obligations by which Ordinaries are held; it takes cognizance of those things which are related in writing by Bishops concerning the state of their dioceses; it orders apostolic visitations and examines those already finished, transmitting in each case to the individual Congregations, for deliberation, the affairs which pertain particularly to them (Can. 248).

§ 1. To the Congregation set over the discipline of the Sacraments has been entrusted the entire legislation concerning the discipline of the seven Sacraments, saving the right of the Congregation of the Holy Office concerning those things which are stated in can. 247, and of the Congregation of Sacred Rites concerning the rites and ceremonies which ought to be observed in confecting, administering, and receiving the Sacraments.

§ 2. Therefore to it pertain all those things which are customarily decreed and granted both in the discipline of marriage and in the discipline of the other Sacraments, and also in the celebration of the Eucharistic Sacrifice, excepting only those things which have been reserved to other Congregations.

§ 3. It also and exclusively takes cognizance of the fact of non-consummation of marriage and of the existence of causes for granting dispensation, and also of all those things which are connected with these. Nevertheless it can remit cognizance of all these matters, if it has judged it expedient and the case bears it, to the Sacred Roman Rota. Likewise, questions concerning the validity of marriage can be brought to it, which nevertheless, if they require a more accurate discussion or investigation, it remits to the competent tribunal. In the same way to it pertains to see concerning obligations annexed to major orders, and to examine questions concerning the validity of sacred ordination, or to remit them to the competent tribunal. And so on concerning the other Sacraments (Can. 249).

§ 1. To the Congregation of the Council that part of affairs is committed which is referred to the universal discipline of the secular clergy and of the Christian people.

§ 2. Wherefore it is for it to take care that the precepts of Christian life be observed; with the faculty of opportunely dispensing the faithful from the same; to moderate those things which regard pastors and canons; or which touch pious sodalities, pious unions, even if they depend on religious or are erected in their churches or houses, pious legacies, pious works, Mass offerings, benefices or offices, ecclesiastical goods, movable and immovable, diocesan taxes, episcopal curial taxes, and other things of this sort. To it is reserved also the faculty of exempting from the conditions required for the obtaining of benefices, as often as the collation of them pertains to Ordinaries; of admitting to composition those who occupy ecclesiastical goods, even belonging to religious; of permitting the faithful to acquire ecclesiastical goods usurped by civil power.

§ 3. It also sees concerning all those things which pertain to ecclesiastical immunity, and likewise concerning controversies about precedence, saving the right of the Congregation concerning religious members and of the Ceremonial Congregation.

§ 4. To it pertain all those things which are referred to the celebration and recognition of Councils and to assemblies or conferences of Bishops, outside places which are subject to the Congregation of the Propagation of the Faith.

§ 5. But this Congregation is competent in all controversies touching affairs committed to it which it has judged must be handled in a disciplinary line; the rest are to be referred to the competent tribunal (Can. 250).

§ 1. The Congregation set over the affairs of religious societies claims to itself exclusively those things which regard the governance, discipline, studies, goods, and privileges of religious societies of either sex, bound both by solemn and by simple vows, and of those who, although without vows, nevertheless live a common life in the manner of religious, and likewise of secular third orders, saving the right of the Congregation of the Propagation of the Faith.

§ 2. Therefore, questions to be handled by judicial order having been remitted to the competent tribunal, and with the right of the Congregation of the Holy Office and of the Congregation of the Council remaining always unimpaired concerning affairs pertaining to them, this Congregation settles all questions concerning affairs within its competence in a disciplinary line; but if the question concerns a religious member and a non-religious person, it can also, especially at the instance of a party, if it has judged it equitable, remit the same question to another Congregation or tribunal.

§ 3. Finally, to this Congregation is reserved the concession of dispensations from common law for religious members, with the prescript of can. 247, § 5 remaining firm (Can. 251).

§ 1. The Congregation for the Propagation of the Faith presides over missions for preaching evangelical and Catholic doctrine, constitutes and changes necessary ministers, and has the faculty of treating, acting, and executing all things necessary and opportune in this matter.

§ 2. It takes care of all those things which pertain to the celebration and recognition of Councils in places subject to it.

§ 3. Its jurisdiction is circumscribed by those regions where, the sacred hierarchy not yet having been constituted, the state of mission perseveres. To this Congregation are also subject regions which, although a hierarchy has been constituted there, still remain in an inchoate state. To it are likewise subject societies of ecclesiastics and Seminaries which have been founded exclusively for this end, that missionaries for external missions be instituted in them, especially as regards their rules, administration, and opportune concessions required for sacred ordinations of students.

§ 4. But this Congregation is held to refer to the competent Congregations affairs which either touch faith, or matrimonial causes, or general norms concerning the discipline of sacred rites to be handed down or interpreted.

§ 5. But as regards religious members, the same Congregation claims to itself whatever touches religious as missionaries, whether taken individually or together. But whatever touches religious as such, whether individually or together, it remits or leaves to the Congregation set over the affairs of religious (Can. 252).

§ 1. The Congregation of Sacred Rites has the right of seeing and establishing all those things which practically regard the sacred rites and ceremonies of the Latin Church, but not those things which more broadly are referred to sacred rites, of which sort are rights of precedence and other things of that kind, concerning which there is disputation either with judicial order observed or in a disciplinary line.

§ 2. Therefore it especially belongs to it to watch that sacred rites and ceremonies be diligently observed in celebrating the Sacred [Sacrifice], in administering the Sacraments, in performing the divine offices, and finally in all those things which regard the worship of the Latin Church; to grant opportune dispensations; to bestow insignia and privileges of honor, both personal and temporary, and local and perpetual, which pertain to sacred rites or ceremonies; and to take care lest abuses creep into these things.

§ 3. Finally, it handles all those things which are referred in any way to the beatification and canonization of Servants of God or to sacred relics (Can. 253).

§ 1. To the Ceremonial Congregation pertains the moderation of ceremonies to be observed in the Pontifical Chapel and Court, and of the sacred functions which the Cardinal Fathers perform outside the pontifical chapel; and likewise the same Congregation takes cognizance of questions concerning the precedence both of the Cardinal Fathers and of Legates whom various Nations send to the Holy See (Can. 254).

To the Congregation for Extraordinary Ecclesiastical Affairs it pertains to constitute or divide dioceses, or to promote suitable men to vacant dioceses, as often as these matters must be handled with civil Governments; moreover, the Congregation applies itself to those affairs which are subjected to its examination by the Supreme Pontiff through the Cardinal Secretary of State, especially from those which have something joined with civil laws and are referred to pacts agreed upon with various Nations (Can. 255).

§ 1. The Congregation of Seminaries and Universities of Studies watches over all things which pertain to the governance, discipline, temporal administration, and studies of Seminaries, with the right of the Congregation of the Propagation of the Faith remaining unimpaired. To the same is likewise committed the moderation of the governance and studies in which athenaea, or those which they call Universities or Faculties, which depend on the authority of the Church, ought to be engaged, including those which are directed by members of some religious family. It weighs and approves new institutions; it grants the faculty of conferring academic degrees and hands down norms by which they ought to be conferred; and where there is question of a man commended by singular doctrine, it can itself confer them.

§ 2. In this Sacred Congregation are numbered, among others, the Cardinal Secretary of the Consistorial Congregation and, among the Consultors, the Assessor of the same Congregation (Can. 256).

§ 1. Over the Congregation for the Oriental Church the Roman Pontiff himself presides. To this Congregation are reserved all affairs of every kind which are referred either to the persons, or to the discipline, or to the rites of the Oriental Churches, even if they are mixed, that is, which by reason either of the matter or of the persons also touch Latins.

§ 2. Wherefore for Churches of the Oriental rite this Congregation possesses all faculties which the other Congregations obtain for Churches of the Latin rite, with the right of the Congregation of the Holy Office remaining unimpaired according to the norm of can. 247.

§ 3. This Congregation settles controversies by disciplinary way; but those which it has judged must be settled by judicial order it will remit to the tribunal which the congregation itself shall have designated (Can. 257).

¹ Cf. Addenda, p. 1146, n. 119.

Vol. I, Tr. III, Pt. II, Ch. III, Article II. On the Tribunals of the Roman Curia

§ 1. Over the Sacred Penitentiary is placed the Cardinal Major Penitentiary. The jurisdiction of this tribunal is restricted to those things which regard the internal forum, even the non-sacramental forum; wherefore this tribunal for the internal forum alone grants graces, absolutions, dispensations, commutations, sanations, and condonations; besides, it examines questions of conscience and settles them.

§ 2. It is also for the same tribunal to judge concerning all those things which pertain to the use and concession of indulgences, saving the right of the Holy Office of seeing those things which regard dogmatic doctrine concerning the same indulgences or concerning new prayers and devotions (Can. 258).

Causes requiring judicial order are handled before the Sacred Roman Rota and before the Supreme Tribunal of the Apostolic Signatura within the limits and according to the norms handed down in can. 1598-1605, saving the right of the Congregation of the Holy Office and of the Congregation of Sacred Rites in causes proper to themselves (Can. 259).

Vol. I, Tr. III, Pt. II, Ch. III, Article III. On the Offices of the Roman Curia

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

§ 1. To the Apostolic Chancery, over which presides the Cardinal Chancellor of the Holy Roman Church, this proper duty belongs: to expedite apostolic letters or bulls for the provision of consistorial benefices and offices, for the institution of new provinces, dioceses, and chapters, and for the carrying out of other greater affairs of the Church.

§ 2. These letters or bulls are not to be expedited except by mandate of the Consistorial Congregation concerning affairs pertaining to its competence, or by mandate of the Supreme Pontiff concerning other affairs, with the limits of the mandate itself observed in individual cases (Can. 260).

To the Apostolic Dataria, which is moderated by the Cardinal Datary of the Holy Roman Church, it is committed to take cognizance of the suitability of those to be promoted to non-consistorial benefices reserved to the Apostolic See; to draw up and expedite apostolic letters for their collation; to exempt, in conferring a benefice, from the required conditions, as often as its collation does not pertain to the Ordinary; and to take care of the pensions and burdens which the Supreme Pontiff shall have imposed in conferring the aforesaid benefices (Can. 261).

To the Apostolic Camera, over which presides the Cardinal Camerarius of the Holy Roman Church, belongs the care and administration of the temporal goods and rights of the Holy See, especially at the time when it is held vacant; and then the norms established in the constitution of Pius X Vacante Sede Apostolica, 25 Dec., 1904, are to be observed with exactness (Can. 262).

The Office of the Secretariat of State, whose moderator is the Cardinal Secretary of State, consists of three parts in this order:

1st. The first part, over which presides the Secretary of the Congregation for Extraordinary Ecclesiastical Affairs, is occupied with affairs which must be subjected to the same Congregation for examination, according to the norm of can. 255, the rest being remitted, according to their diverse nature, to particular Congregations;

2nd. The second part, over which the Substitute presides, applies itself to ordinary affairs;

3rd. The third part is directed by the Chancellor of Apostolic Briefs, who is devoted to the expedition of Briefs (Can. 263).

To the Secretariats of Briefs to Princes and of Latin Letters belongs the duty of writing in Latin the acts of the Supreme Pontiff committed to them by the same (Can. 264).

The Council or Commission for authentically interpreting the canons of the Code was instituted by the Supreme Pontiff Benedict XV, by Motu proprio Cum juris, on the fifteenth day of the month of September in the year 1917.

To this Commission alone will belong the right of authentically interpreting the canons of the Code, yet with that Sacred Congregation heard in matters of greater moment whose proper affair it is. It consists of some Cardinals, one of whom presides over the assembly; to these there will be added an approved man who will be Actuary of the Sacred Council, and Consultors from both clergies; the Council will have the right of interrogating the Consultors of the Sacred Congregations, each according to his own matter.
Let the Sacred Roman Congregations from now on not make new General Decrees, unless grave necessity persuades otherwise. Therefore their ordinary duty will be both to take care that the prescripts of the Code be religiously observed, and to issue Instructions which bring greater light to the same precepts and produce efficacy. These documents are to be composed so that they are and appear as certain explanations and complements of the canons.
When the good of the universal Church will demand that a new decree be established by some Congregation, let that Congregation establish the decree; but if it disagrees with the prescripts of the Code, let it warn the Supreme Pontiff concerning the discrepancy. The Congregation is to refer the decree approved by the Supreme Pontiff to the Council, whose role it will be to draw up a canon according to the sentence of the Decree. If the Decree disagrees with a prescript of the Code, let the Council indicate for which law of the Code the new law is to be substituted; if the matter concerns a thing about which the Code is silent, let the Council establish in what place the new canon is to be inserted, with the number of the canon which immediately precedes repeated twice, three times, etc., lest any canon be moved from its place or the series of numbers be disturbed. All these things, after the Decree of the Sacred Congregation, are to be reported in the Acta Apostolicae Sedis.

Sacred Congregation for the Oriental Church. To it are reserved all affairs of whatever kind which are referred either to the persons, or to the discipline, or to the rites of the Oriental Churches, even if they are mixed, that is, which by reason either of the matter or of the persons also touch Latins. The Supreme Pontiff presides over it; he created it by Motu proprio Dei providentis on the 1st day of the month of May, in the year 1917.

Cf. Ferreres, Razon y Fe, t. 491; La Civilta Cattolica, an. 1917, 1918; Boudinhon, Revue du Clerge Francais, t. 92; The Irish Ecclesiastical Record, 1917, 1918; The Irish Theological Quarterly, 1917, 1918. - The American Ecclesiastical Review, 1917, 1918; Papi, Religious Profession - Marc, Institutiones Morales, Ed. 15, Supplement, 1917.

Vol. II, Tr. XV, Pt. III, Ch. I, Article I. On the Power of Jurisdiction in General

n. 770, Q. 12.

Question 12. Whether the Church supplies jurisdiction in common error or in positive and probable doubt?

Resp. In common error or in positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and internal forum (Can. 209).

Common error in this cause is understood as "not error of fact and in second act, but common error of law and in first act," i.e., as Bucceroni says, "in such a state or condition of things, that error of the public or of the community naturally can and ought to follow if the matter follows its natural course." This interpretation seems able to be admitted altogether securely; otherwise often we would not be able to say when, in what individual confession, absolutions in determined cases began to be valid. - Bucceroni, Cas. 612, 129. 5; I. M. n. 769.

Vol. II, Tr. XV, Pt. III, Ch. I, Article II. On the Jurisdiction of Confessors

n. 773.

Questions

Question 1. Whether the Church supplies jurisdiction when penitents invincibly are ignorant of its defect?

Resp. In common error the Church supplies jurisdiction for both forums. - Cf. Can. 209.

n. 773, Q. 2.

Question 2. Whether it is licit to absolve with negatively doubtful jurisdiction?

Resp. Negatively, unless some necessity urges, and then absolution is to be given under the condition: if I can. St. Alphonsus thinks that necessity of this sort 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 to celebrate from obligation. - Cf. St. Alphonsus, n. 571.

n. 773, Q. 3.

Question 3. Whether it is licit to absolve in positive and probable doubt, whether of law or of fact?

Resp. Affirmatively, because the Church supplies in positive and probable doubt, whether of law or of fact. Cf. Can. 209.

n. 773, Q. 4.

Question 4. Whether heretics, excommunicates to be avoided, degraded persons, irregulars, apostates, etc., absolve validly in danger of death, when another priest is lacking?

Resp. Affirmatively, because then the Church supplies jurisdiction, as is established from the Council of Trent, sess. 14, chap. 7, where it reads thus: "Very piously, lest on this very occasion someone perish, it has always been observed in the same Church of God that there is no reservation at the article of death: and therefore all priests can absolve any penitents whatsoever from any sins and censures whatsoever." - Indeed, not only in the article, but also in danger of death absolution can be given by any priest, because in canon law the article and danger of death are customarily taken for the same thing, such as, for example, is considered to be present in battle, on a long voyage, in difficult childbirth, and similar cases. Cf. St. Alphonsus, nn. 560 and 561.

"Whether any soldier, constituted in the state of war-convocation or, as they say, mobilization, by that very fact can be equated with those who are placed in danger of death, so that he can be absolved by any priest met with." The Sacred Penitentiary, after maturely considering the things set forth, kindly, with our Most Holy Lord Pius X assenting, responded thus: "Affirmatively, according to the rules handed down by approved authors." 18 March 1912.

n. 773, Q. 5.

Question 5. Whether a simple priest can validly absolve a dying person even when an approved confessor is present?

Resp. In danger of death all priests, although not approved for confessions, validly and licitly absolve any penitents whatsoever from any sins or censures whatsoever, however reserved and notorious, even if an approved priest is present, with the prescription of can. 884, 2252 remaining safe (Can. 882).¹

Can. 884 treats of absolution of an accomplice in the article of death; Can. 2252 of the necessity of recourse in the case of absolution from some censure ab homine, or from a censure reserved in the most special way.

¹ Cf. Addenda, p. 1150, n. 125.

n. 773, Q. 6.

Question 6. Whether a Pastor can call in a Pastor of the same or of a different diocese for hearing confessions in his parish?

Resp. Affirmatively, as regards a Pastor of the same diocese; for although by force of his office he has jurisdiction only for his own parish, nevertheless from almost universal custom he can also hear confessions in the whole diocese, unless the Bishop decrees otherwise. - But as regards a Pastor of a different diocese, he can be called in for hearing the confessions of his own subjects; but not for hearing the confessions of other penitents. - Cf. Can. 881 and 874.¹

¹ Cf. Addenda, p. 1095, n. 30.

n. 773, Q. 7.

Question 7. Whether among us that ancient pact still flourishes, by which some priest, after receiving faculties from his own Bishop, can validly use the same in another diocese?

Resp. Negatively, as is established from the Second Plenary Council of Baltimore, n. 118, where it is said: "Lest wandering, unknown, and depraved priests undertake sacred offices with offense of the faithful, the Fathers judged that the faculties which the Bishops by a certain common pact mutually bestowed upon themselves in the convention held in the year 1810 were to be revoked; and therefore for the future, none of the priests, by force of that pact, can exercise jurisdiction or undertake any sacred office without the authority of the ordinary." Note, however, the statute recently enacted in a certain Synod of New York, where n. 157 says: "For the sake of liberty of conscience, we concede that every outside Priest who is known in his own diocese to be endowed with ordinary faculties may be able to absolve a Priest of Our Diocese who has chosen to confess to him in this diocese, and likewise all persons who have true habitation in his house." - Cf. Amer. Eccl. Rev., Vol. 2, pp. 37 and seq.

n. 773, Q. 8.

Question 8. Whether a priest approved by the Bishop can hear the confessions of the faithful without the permission of the Pastor?

Resp. Negatively, as regards liceity, if the confessions are received in a church subject to the Pastor, because due order altogether requires that, since he is the immediate superior in his church, permission to exercise sacred ministries there be sought from him. But as regards validity, it is certain according to all that the license of the Pastor is not required.

n. 773, Q. 9.

Question 9. Whether a priest approved in some place can receive the confessions of pilgrims, wanderers, and Eastern Catholics coming there?

Resp. § 1. All priests of either clergy approved for hearing confessions in some place, whether instructed with ordinary or delegated jurisdiction, can also validly and licitly absolve wanderers and pilgrims from another diocese or parish who approach them, and likewise Catholics of any Eastern rite.

§ 2. Those who have ordinary power of absolving can absolve subjects everywhere on earth (Can. 881).

Wherefore our pastors can hear their own subjects everywhere; and this can carry with it a vast good of souls.

n. 773, Q. 10.

Question 10. Whether the Bishop can forbid under penalty of invalidity that diocesans go to confess outside the diocese?

Resp. Negatively, because the right is given to a subject of confessing to the confessor whom he prefers.

n. 773, Q. 11.

Question 11. Whether a simple priest can absolve those navigating on the Ocean, or from whom approval must be obtained?

Resp. § 1. All priests undertaking a sea journey, provided they have duly received the faculty of hearing confessions either from their own Ordinary, or from the Ordinary of the port in which they board the ship, or even from the Ordinary of any intermediate port through which they pass on the journey, can, during the whole journey, receive on the ship the confessions of any faithful whatsoever navigating with them, although the ship on the journey passes through or even for some time stops in various places subject to the jurisdiction of different Ordinaries.

§ 2. But as often as the ship stops on the journey, they can receive the confessions both of the faithful who approach the ship for any cause whatsoever, and of those who, when they themselves have touched land in passing, ask to confess to them, and validly and licitly absolve them even from cases reserved to the Ordinary of the place (Can. 883).¹

¹ Cf. Addenda, p. 1109, n. 52.

n. 773, Q. 12.

Question 12. To whom can the faithful confess?

Resp. It is free to any faithful person to confess his sins to any legitimately approved confessor, even of another rite, whom he prefers (Can. 905).

n. 773, Q. 13.

Question 13. Whether one who, having delegated jurisdiction, has begun to hear a confession can finish it even if meanwhile the delegation expires?

Resp. "Some say that he cannot. Petrus de Ledesma, cp. 12. Others, however, affirm that he absolutely can, whom Sanchez reports and follows, l. 2 in Decal. cp. 13, n. 15, and in a similar matter indicates l. 4, cp. 54, n. 34; Diana, v. I, De Bulla Cruciata, Resp. 94: which opinion is very probable, because the matter is not whole. Cap. Gratum and Cap. Relatum on the office of a delegate." - Lugo, de Sacr. Paen. disp. 19, sec. 2, n. 24.

n. 773, Q. 14.

Question 14. Whether delegated jurisdiction or license can be conceded with limitation?

Resp. § 1. Delegated jurisdiction or license of hearing confessions can be conceded circumscribed by certain limits.

§ 2. Nevertheless let Ordinaries of places and religious Superiors beware lest they too greatly restrict jurisdiction or license without reasonable cause (Can. 878).

Those who have not been found generally suitable for hearing confessions and nevertheless have asked to be admitted can receive limited jurisdiction at the judgment of the Ordinary.

Indeed it is evident, universally speaking, that jurisdiction and license ought not to be too greatly restricted.

Nevertheless, a power conceded generally is not to be considered limited as regards time, places, and other circumstances, unless these are held in the law itself as contained in the general concession, such as reserved cases.

Concina, Compendium

Daniele Concina, O.P. — 5 passages (filed under the subtopics)

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

n. LII.

LII. Fr. Viva, question 8, article 1, no. 16: “I answer that jurisdiction is conferred not only when to a common error a coloured title is joined … but also probably if a common error be not conjoined with a coloured title; suppose, if a priest not having jurisdiction should in good or in bad faith expose himself in the confessional to hear confessions, being commonly reckoned an approved confessor. So Diana, Malfesius. … But this error ought to be probable, not indeed rash or gross.”

n. LIII.

LIII. The same Viva, 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 judge it to be 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 wished, 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 thought.”

n. LIV.

LIV. Fr. Francis Fegelli, part 1, tract 2, no. 31, page 14: “The practice and usage of all confessors has obtained that they bestow absolution with probable jurisdiction. Therefore, lest their acts be so often void with the greatest loss to penitents, it is rightly judged that the Church most certainly confers jurisdiction, even if it were not given before.”

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

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.

Slater, Cases I

Thomas Slater, S.J. — 9 passages (filed under the subtopics)

Slater, Cases I, Laws, Case 8. The Roman Congregations

John, a Catholic layman learned in biblical studies, thought that the arguments of the critics had settled the question of the Mosaic authenticity of the Pentateuch. After the responses issued by the Biblical Commission on June 27, 1906, he indeed wrote nothing publicly in defense of his opinion, which he nevertheless continued to retain, and openly indicated to his friends that, in his opinion, the Biblical Commission had erred. When John’s parish priest and confessor heard this, he asked how John—who maintained complete silence about this matter in confession—was to be treated. Hence it is asked:

n. ¶2.

What are the Sacred Roman Congregations, and what power do they have?

n. ¶3.

What force do the responses and decrees of the said Congregations have?

n. ¶4.

What is to be said concerning the case?

n. ¶5.

Solution

What are the Roman Congregations and what power have they?

n. ¶6.

The Roman Congregations are so many tribunals consisting of cardinals and officials designed to assist the Pope in the government of the Church, especially in the way of administration and discipline. Some few Congregations existed before the time of Sixtus V, but that Pope, by his constitution Immensa, Jan. 22, 1587, increased their number and defined the limits of their authority. In course of time, some new Congregations were added to those of Sixtus V, and difficulties arose as to their competence. Hence Pius X, by his constitution Sapienti Consilio, June 29, 1908, organized them afresh. According to this constitution there are thirteen Congregations, each of which has its appointed sphere of action. The Congregations are forbidden to transact any serious or unusual business without consulting the Pope, and their decrees require the Pope’s approbation, except those for which he has granted special faculties.

n. ¶7.

What force have the answers and decrees of the said Congregations? We must distinguish between various classes of decrees and answers. (a) Sometimes documents issue from the Holy See which, in form, are decrees of one of the Congregations, but which are specially approved in forma specifica, by the Pope. In this way the decree of the Sacred Congregation of the Council, Ne temere, was issued Aug. 2, 1907. Such a decree is really a papal act and has the force of a pontifical law; the Pope uses the Congregation to issue a new law of his own. (b) Pius IX, in his letter to the Archbishop of Munich, Dec. 21, 1863, declared that all Catholics are obliged to submit to doctrinal decisions which emanate from the Roman Congregations. The obligation of submission, in this case, is not satisfied by saying and doing nothing contrary to such decrees. Ordinarily, at least, there must also be an internal submission under pain of falling into the sin of temerity and pride, in preferring one’s own opinion to that of a competent authority which is empowered to decide such questions. But inasmuch as the Roman Congregations are not infallible, it may possibly happen that a particular decree of some Congregation is false, and a learned man may see good reason for thinking that it is false. Such a one is not bound to assent to what, with good reason, he thinks is false; he should not openly attack the decree, but he may propose his reasons to the Congregation whose decree is in question, and await the result. (c) Particular sentences and decisions given by the Roman Congregations, in particular cases, bind the parties in the case, as all admit. But opinion is divided as to whether such a decision binds others as well as the parties immediately concerned. Some hold that they do not, for want of due promulgation. Others hold that they do, inasmuch as they are merely authentic applications of the law.²

2 Génicot, vol. i, no. 135.

n. ¶8.

The case. John, a Catholic layman, and learned in Biblical studies, thought that the arguments of the critics against the Mosaic authorship of the Pentateuch were decisive. The Biblical Commission, June 27, 1906, decided that they were not decisive. Although John did not publicly write against this decree, he nevertheless adhered to his opinion, and openly told friends that he thought the Commission had made a mistake. When his parish priest and confessor heard this, he was puzzled how to treat John, who said nothing about the matter in confession.

n. ¶9.

The confessor doubtless will remember that by the Motu Proprio of Pius X, Praestantia Scripturae Sacrae, Nov. 18, 1907, the obligation to obey the decrees of the Biblical Commission is the same as the obligation to obey the doctrinal decrees of the Roman Congregations. The words of the Pope are: “Wherefore we see that this must be declared and enjoined, just as we declare at present and expressly enjoin, that each and every person is bound in conscience by the duty of submitting to the judgments of the Pontifical Commission on Biblical Matters, whether those already issued or those to be issued hereafter, in the same way as to decrees of the Sacred Congregations which pertain to doctrine and have been approved by the Pontiff; nor can all those who by words or writings attack such judgments avoid the stigma both of refused obedience and of temerity, or therefore be free from grave fault; and this besides the scandal by which they offend and the other things for which they can be responsible before God, especially because of other pronouncements in these matters made rashly and erroneously.”¹ John does not, indeed, impugn the decree of the Biblical Commission, but he openly says that in his opinion it is a mistake. Therefore he does not submit to it, and he can hardly be excused from a grave sin of disobedience, temerity, and scandal, especially as his friends doubtless look up to him as an authority on Biblical subjects. Yet John says nothing about this in the confessional. His confessor, who is also his parish priest, can not allow him to go on receiving the sacraments of the Church while openly refusing to accept her authoritative teaching. The confessor, therefore, must broach the matter to him, kindly but firmly, and admonish him of his obligations. If he refuses to submit, he must deny him absolution.

1 Lehmkuhl, vol. i, no. 304.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 6 passages (filed under the subtopics)

Vol. IV, Case LXI: Supplied Jurisdiction