The powers of Orders and of jurisdiction

Approval can be defined: A juridical judgment of a Prelate concerning the fitness of a Priest for hearing confessions.

Hence, for granting approval, an examination is not required essentially; for a prudent judgment concerning fitness can be had even without an examination when this is established from another source. But this judgment ought to be adequate, namely, both on the part of the intellect as regards knowledge and prudence, and on the part of the will as regards holiness of morals fitting for a vicar of Christ in this ministry ¹.

¹ Nevertheless, these things do not pertain to the essence. Wherefore the Ordinary would indeed approve illicitly, but validly, one who perhaps lacks these qualities.

n. 538.

I say I. Approval is required for hearing confessions both licitly and validly ². It is established from Trent, sess. 23, ch. 15, On Reformation, where it is established thus: No Priest, even a regular, can hear the confessions of secular persons, even Priests, nor be regarded as fit for it, unless he either has a parochial benefice, or is judged fit by the Bishops through an examination, if this shall seem necessary to them, or otherwise, and obtains approval, which is to be given gratuitously.

² This holds with regard to churches using the Latin rite, but not likewise with regard to Eastern churches. Indeed, Verricelli (De Apost. Mission., tit. XV, q. 223) observes that not even missionaries of the Latin rite need the permission of a Greek Catholic Bishop for hearing confessions. It is sufficient, he says, if before the Greek Bishop they reverently exhibit the letters of their Mission or priestly Order; for this suffices so that, once permission to celebrate has been granted, they may also hear confessions. It is proved because Latin Priests ought not to be of a worse condition among Greek Bishops than Greek Priests. But an itinerant Greek Priest arriving from elsewhere, after showing the letters of his Priesthood and obtaining from the Greek Bishop permission to celebrate, can at once both celebrate and hear confessions, because among the Greeks there is no priest who cannot hear confessions, but in ordination itself he receives the faculty and jurisdiction of absolving. Therefore, the same is likewise to be said of a Latin Priest, to whom, by the very fact that the Greek Bishop gives the faculty to celebrate, he is considered also to give the faculty of hearing confessions. Indeed, if the Greek Bishop does not take care to see the dimissorial letters of itinerant Greek Priests and permits them, without any express permission having been given, both to minister the Sacrament of Penance and to celebrate, the same seems to be said of a Latin missionary Priest. Nevertheless, the missionary must ask permission from the Vicar of the Latin Catholic Bishop, if one is present there.

n. 539.

I say II. The Bishop alone, or one who has quasi-episcopal jurisdiction, can approve. The reason is that it pertains to the Prelates of the Church alone to judge concerning the fitness of Ministers to be deputed for hearing confessions. This is also established from the Council of Trent cited above. But the Bishop can approve either by himself or through another delegated by him, because approval is an act of jurisdiction, and ordinary jurisdiction can be delegated. - St. Lig., nos. 550, 558.

n. 539.

It must further be observed that, according to the present discipline of the Church, jurisdiction also is accustomed to be conferred upon Priests by the Prelate together with approval, exempt Regulars being excepted ³; and therefore, in common usage, jurisdiction is also comprehended under the name of approval. Formerly, however, namely, before the Council of Trent, when the approval of the Bishop was not necessary, jurisdiction was commonly granted by Pastors; this faculty now scarcely has exercise among pastors, since a priest can now scarcely be found who has not already received jurisdiction from the Bishop together with approval.

³ Do not understand these words as though a Bishop cannot grant jurisdiction to Regulars. It is only indicated that Regulars do not need the delegation of the Bishop, since they have jurisdiction, as will be said below, delegated by the Apostolic See through their own prelates.

n. 540.

Questions. - QUESTION 1. From which Bishop is approval to be obtained?

n. 540.

Reply. Approval ought to be granted by the Bishop of the diocese in which confessions are to be heard; hence the approval either of the Bishop of the penitents or of the Bishop of the Priests does not suffice. It is established from the Bull of Innocent XII of the year 1700, where it was decreed: Confessors, both secular and regular, whoever they may be, can in no way hear penitents without the approval of the Bishop of the place in which the penitents themselves dwell; nor for this does approval obtained once or several times from other Ordinaries of other dioceses avail, even if the penitents are subjects of those Ordinaries who had approved such Confessors. Then the Pontiff declares that otherwise the confessions will be null and the Confessors suspended. Benedict XIV confirmed this Constitution by the Bull which begins Apostolica. - See St. Lig., no. 548 ⁴.

⁴ Since the Council of Trent had not expressly explained by which Ordinary Confessors were to be approved, the Doctors departed into three diverse opinions, as can also be seen in St. Alphonsus (bk. 6, no. 548). For some said that approval was to be sought from the Ordinary of the priest, since he alone would have jurisdiction over him; others, however, from the Ordinary of the penitent, because he had the right of inspecting to whom he committed his sheep; and finally others from the Ordinary of the diocese where the confession is made.

And indeed, to the first of these opinions, which otherwise most grave Doctors had embraced as the more probable, is owed that opinion which was the author of so many dissensions: that Regulars, once they had obtained approval from some Ordinary, could thereafter hear confessions in any other diocese without the approval of the Ordinaries, since they thought neither another approval from them nor a delegation of jurisdiction, which they had from the Apostolic See, to be necessary for themselves. Against them came the Constitution Cum sicut of Urban VIII, September 12, 1628, in which the privilege formerly granted also to certain Religious, that they could hear sacramental confessions even if they had not been examined and approved for this by the diocesan Bishops, is abolished. And with regard to all Religious there also followed the Constitution Superna of Clement X, which in section 4 decrees that Religious approved by a Bishop to hear the confessions of secular persons in his diocese cannot hear them in another diocese without the approval of the diocesan Bishop, although the penitents are subjects of that Bishop by whom the Religious themselves had already been approved.

And since by this Constitution of Clement X the question did not seem to be removed (see Lacroix, bk. 6, part II, no. 1516), because both it and the preceding one of Urban VIII established this concerning Regulars alone, hence there was the new Constitution of Innocent XII, from which the Author reports certain things, which also comprehends secular confessors and decrees that the Bull of the Holy Crusade introduced no new law and contained no privilege with regard to the approval of Confessors against the form of the Council of Trent..., so that Confessors, both secular and Regular, whoever they may be, etc., as in the passage transcribed by the Author. And since certain authors, such as, for example, the Salmanticenses (On Privileges, ch. 4, no. 11) contended that the Constitution of Innocent XII, which treated of the Bull of the Crusade, was not necessarily extended to other privileges of choosing a Confessor for oneself, for example, those which are granted through a Jubilee. Therefore Benedict XIV (Const. Apostolica indulta, August 5, 1744) established and declared that those things which his Predecessors, the Roman Pontiffs Innocent XII, Innocent XIII, and Benedict XIII, had decreed concerning the understanding and use of the indult of the Bull of the Crusade, ought equally to have force and obtain also in the remaining indults of the same kind. From all these things it is manifestly evident that the first and second of the opinions recounted above are now to be regarded as obsolete.

- QUESTION 2. Can someone absolve his own subject in another diocese without the approval of the Ordinary?

Reply 1. Affirmative, if he has truly personal or ordinary jurisdiction over him. The reason is that whoever, by reason of his office, has ordinary jurisdiction is considered approved by the law itself to hear his own subjects everywhere; nor is ordinary jurisdiction, provided it is exercised without judicial solemnity, confined to a place, but unless it is specially restricted, it can be exercised everywhere. - Thus commonly with St. Lig., no. 548; Reuter, no. 348; Lacroix, no. 1516; and others against a few. Hence a Bishop and a Pastor can absolve their subjects outside the parish and diocese without the approval of the Bishop of the place.

Reply 2. Negative, if only delegated jurisdiction over the penitent is possessed, because this is of itself considered merely territorial, not personal, and therefore does not follow the delegate outside the territory. - Thus the same authors.

QUESTION 3. Does presumed approval suffice?

Reply. Negative. The reason is that, from the Council of Trent, approval actually and absolutely existing and already obtained is required. But for approval of this kind, actual consent declared by some sign is required. Indeed, it is not lawful to begin hearing confessions before that consent, requested by letter, has been received, even though it appears certain that it will be obtained. - Thus commonly. - St. Lig., no. 570.

Much less is a ratification of approval valid even when prudently presumed, because ratification has place only in acts whose validity can be suspended into the future; but the validity of a present absolution cannot be suspended, for the validity of the Sacraments cannot depend upon a future action ⁵. - St. Lig., ibid.

⁵ Compare, however, those things which were said above (no. 232) concerning sacraments which are valid but unformed.

- QUESTION 4. Can a Bishop validly and licitly limit approval with regard to a certain time, place, and persons?

Reply 1. Affirmative as regards validity, even without cause. The reason is that it is an act wholly dependent upon the will of the Bishop as Superior. Hence, just as he can validly refuse approval, so he can grant it only with a restriction. This is also established from proposition 13 condemned by Alexander VII: He satisfies the precept of annual confession who confesses to a regular presented to the Bishop, but unjustly rejected. Therefore a denial of approval, even an unjust one, is valid; therefore much more a restriction. It is also established from the Council of Trent, sess. 23, ch. 15, where it is said: Unless he obtains approval. But one who obtains it with a restriction simply does not obtain it for the excluded cases.... Therefore, etc. - St. Lig., no. 542; Lugo, disp. 21, no. 51.

Reply 2. As regards liceity, distinguish. The Bishop can indeed restrict or even altogether deny approval for a just cause, as is evident, because the necessity of approval was introduced for this end, that the fit be separated from the unfit. It is otherwise, however, if he does this without a just cause.

QUESTION 5. What are just causes for limiting approval as to time, etc.?

Reply. They are for the most part the following: 1. if there is now a necessity of having several Confessors which will afterward cease; 2. if the one to be approved indeed has sufficient knowledge, but greater knowledge is rightly desired for perpetual approval; 3. if it is prudently feared that, after once obtaining perpetual approval, he will neglect study; 4. for testing how he conducts himself in hearing confessions, namely, whether he applies general principles well, etc.

n. 543.

- QUESTION 6. Can a Bishop validly and licitly revoke approval once granted?

n. 543.

Reply 1. Affirmative by reason of validity, even without a just cause. The reason is: 1. because such a revocation is made in a matter so subject to the Bishop that it can proceed only from him; 2. because approval, even unjustly revoked, no longer exists, or cannot be said simply to be possessed or obtained. - Thus commonly with St. Lig., no. 551; Billuart, diss. 6, art. 5.

n. 543.

Reply 2. By reason of liceity, distinguish. 1. The Bishop can indeed revoke approval, even when granted without limitation, for just causes; for this follows from the necessity of approval, which demands that whoever ceases to be fit be removed from office. 2. He cannot, however, revoke approval without a just cause. For, from what has been said, the Bishop cannot deny approval without cause; therefore, much less can he revoke without cause one already granted, since according to the saying: More shamefully is a guest cast out than not admitted. - St. Lig., etc.

n. 544.

- QUESTION 7. Can a Bishop approve an extern Priest?

n. 544.

Reply. A Bishop can approve any fit person actually existing in his diocese, even if only passing through. It is established from universal practice and the common opinion of the Theologians against a few who require for this a quasi-domicile, or at least a domicile of habitation in the diocese of the approving Bishop ⁶. The reason is that a delegation or mandate can be committed to anyone, provided he is capable. It is established further from the practice which is universally observed in the Church. - Recall the Decree of Innocent XII related above, no. 540.

⁶ This, namely, was a consequence of the opinion which established that approval for hearing confessions was to be required from the proper Ordinary of the priest. And since by law no one becomes a subject of any Ordinary except by reason of domicile or quasi-domicile, the Doctors therefore required one or the other of these in order that someone could be approved by a Bishop. But since that opinion has now become obsolete, its consequence also remains obsolete. That certain writers repeat this now obsolete doctrine and think that approval can be granted only to subjects who are such by the law of domicile, quasi-domicile, or at least habitation seems to be attributed merely to the not infrequent custom by which some are readily borne toward transcribing the opinions of the ancients without in any way examining their reason.

Meanwhile observe that certain Doctors indeed require for the validity of approval that the priest can be called a subject of the approving Ordinary. But they consider him a subject as soon as he sets foot in the diocese, even if no will of remaining there is present. Thus Lugo: I infer eighthly that a Religious approved by some Bishop while he is staying in his episcopate, whether as a guest or with domicile, although after changing domicile, or returning to his own domicile if he was a guest, he no longer remains a subject of that Bishop...; nevertheless, if he afterward returns to the same episcopate, he recovers the approval... and by virtue of it can hear confessions without a new approval, because he again becomes a subject of the same Bishop by whom, or by whose predecessor, he was approved (De Poenit., disp. 21, no. 44). Moreover, subject in this place means a priest in a restricted sense, that is, merely in relation to hearing confessions. Thus the same Lugo (ibid., no. 35): His Ordinary in relation to hearing the confessions of this diocese is that one alone to whom he is subjected in relation to this office and by whom, if he sins in this matter, he can be punished as by his own judge and Ordinary in this class of causes. And from this that which he himself had premised (ibid., no. 33) is well reconciled with these things: When Bishops give permission to hear confessions even to foreign and visiting priests, they do not attend to or ask whether they were previously approved or whether they came with the intention of remaining, but only whether they are or are not sufficient. Thus Lugo; and if the first of the three opinions presented above, in the note at no. 440, is understood with him in such a way that anyone who becomes subject to the Ordinary in relation to hearing confessions is called a subject, and only for as long as he remains in the same diocese, it is manifest that this opinion is very well reconciled with the third, which is to be maintained from the apostolic Constitutions.

Vol. II, Treatise On the Sacrament …, Pt. III, Ch. I, Art. II, Appendix I. On the Jurisdiction and Approval of Regulars

Regulars, by reason of privileges and immediate dependence upon the Supreme Pontiff, differ in several matters of jurisdiction from secular Priests. Hence:

n. 557.

- I say I. Regulars properly so called, or those who emit solemn vows and are endowed with the privilege of exemption ¹, and are therefore exempt from the jurisdiction of Bishops, receive jurisdiction immediately from the Pope for hearing the Confessions both of their own members and of secular persons. Hence is understood the jurisdiction granted to individual religious Priests, with the consent of their Superior being added ². This is established from Canon law, especially from the Decretal Super cathedram, from the Clementine Dudum de sepulturis, and likewise from other Constitutions which, although they were afterward modified, especially through the Council of Trent with regard to privileges, nevertheless remained unrevoked with regard to the substance of jurisdiction. - Thus commonly with Lugo, disp. 21, no. 4; Lacroix, no. 1552; Billuart, diss. 6, art. 6.

¹ The privilege of exemption does not of itself imply a delegation of jurisdiction immediately from the Supreme Pontiff; for the one can subsist without the other. In fact, however, all mendicant Religious, and those who by an indult of the Apostolic See have communication of privileges with them, are accustomed to receive jurisdiction from the Roman Pontiff through the prelates of their proper Order. Concerning this matter, a Religious of each Order should consult his own Constitutions and the privileges granted to his Order.

² Rather than consent, you would say a communication or delegation of jurisdiction.

n. 557.

I say II. Regulars receive from the Superiors of their monastery or Order approval together with jurisdiction for hearing the confessions of their own members; but for hearing the confessions of secular persons they receive approval from the Bishop of the place where the confessions are to be heard. The reason for the first is that the Council of Trent required the approval of the Bishop only for the confession of secular persons, and changed nothing in the ancient discipline with regard to the confessions of Regulars. The reason for the second is evident from the Decree of Innocent XII in the year 1700, by which it was decreed that Confessors, whoever they may be, both secular and regular, can in no way hear secular penitents without the approval of the Bishop of the place.... - See the things said at no. 538.

n. 557.

I say III. Regulars cannot confess, at least ordinarily, outside their own Order without the consent of their Superiors; indeed, even in the Monastery they cannot confess to anyone other than the one designated by the Superior himself. Those who dwell outside the Monastery, however, or are traveling, cannot confess except to a companion, if they have one who is fit; but if they do not have one, they can confess to any Priest, whether regular or secular. - These things are established from the privileges known to have been granted to all Religious Orders by Innocent IV and by other Supreme Pontiffs. - See St. Lig., no. 575; Lacroix, no. 1524; Laymann, etc. Recall also the things said above concerning the religious state, no. 174.

Resolutions. - 1. Although Regulars have jurisdiction from the Pope, nevertheless they have it bound with regard to hearing the confessions of secular persons, since for the validity of absolution the approval of the Bishop is required as a condition sine qua non.

A Bishop can grant approval to Regulars at pleasure without restriction, or with some restriction as to time, places, persons, etc.

If the Bishop expressly granted approval only for some transitory act, for example, for conducting some mission, the faculty received is considered to be valid only for that act and for every judgment then begun.

If the Bishop, or your Superior by his delegation, grants you approval for a determined class of penitents, the faculty cannot be extended to others, as is evident. But if the request for a faculty from the Bishop or from the Superior is general, and the concession was not restricted, the faculty obtained is not limited to the work which was the occasion of the request. Thus, for example, if you seek a faculty on the occasion of giving spiritual exercises to Nuns in a certain convent, by the same faculty received you can hear also the confessions of other faithful. The reason is that whatever is not excepted is contained in the concession. Except, however, reserved cases, which by law itself are never understood to be comprehended in a general faculty of hearing confessions ³.

³ Thus expressly Boniface VIII (chapter Si Episcopus 2, De Poenit. et Remiss. in VI): If a Bishop grants to his subject that he may choose for himself a fit confessor, the one whom he chooses has no power at all in cases which are specially reserved to that Bishop, since those things which someone would not probably grant specifically are not included in a general concession.

A religious missionary summoned by a Bishop to conduct a mission in his diocese by that very fact receives tacit approval for hearing confessions during the time of the mission for which he is summoned. The same must be said if he was requested by a Pastor or another Superior with the permission of the Bishop. Nevertheless, he is considered approved only for ordinary cases. Hence in practice recourse must always be had to the Bishop to determine the extension or measure of the approval ⁴.

⁴ This passage of the Author seems somewhat obscure; nor is it sufficiently evident whether he speaks of the mere extension of approval beyond the time or occasion of the mission, or indeed of the extension of the faculty also to reserved cases. Whatever the case, the counsel of approaching the Bishop is useful in either hypothesis.

When a religious Superior, by delegation of the Bishop, employs a subject for the general works of the sacred ministry, apart from the hypothesis of some special restriction, he is considered to grant him an unrestricted faculty for any penitents whatever and also for all the reserved cases contained in the episcopal concession. The reason is that he is considered to grant all that he can and is accustomed to grant, according to the aforesaid rule: Whatever is not excepted is contained in the concession.

Questions. - QUESTION 1. Can Regulars outside the house, when a fit companion is lacking, confess to a Priest not approved?

Reply. Affirmative, from the common opinion. But the Reply of the Sacred Congregation of the Council to the Bishop of Hildesheim, dated November 18, 1769, which could be opposed, is by no means contrary, since there is question there of Religious who had companions of their Order at hand, as is evident from the acts of the same Congregation ⁵.

⁵ Compare the things said above in the note at no. 174.

QUESTION 2. Can a Bishop without cause deny approval to Regulars?

Vol. III, Pt. II, Tr. V, Ch. III, Article I. On the Power of the Minister · Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 1. On the Power of Order

Reply. Negative. For, Pignatelli says, Regular Confessors receive jurisdiction not from the Bishop, but from the Supreme Pontiff, and approval is required only as a condition so that jurisdiction can be exercised. Therefore Bishops cannot prohibit Regulars from absolving at some time.... (Consultationes canonicae, vol. 4, consult. 163).

n. 560.

- QUESTION 3. Can a Bishop approve Regulars with a limitation of time, persons, or places?

n. 560.

Reply. Affirmative. This is established from various Decrees of the Holy See. - See St. Lig., Hom. apost., tract 20, no. 103 at the end. Nevertheless, in approving Regulars the Bishop cannot prohibit them from hearing confessions at the Paschal season. This is established by a Decree of the Sacred Congregation dated September 22, 1668.

n. 560.

QUESTION 4. Can a Bishop revoke approval granted to Regulars?

…and 42 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 17 passages

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

n. 372.

Art. I. On the Power Required in the Confessor

Preliminary notes. By divine law a twofold power is required in the minister not only for licitly, but also for validly administering the sacrament of Penance, namely the power of order and of jurisdiction; by ecclesiastical law, jurisdiction cannot be conferred except on those who have been found suitable (Codex, c. 877).

The twofold power of order and jurisdiction was necessary at all times, as was said above, n. 72-92; and, before Trent, according to the common opinion, it sufficed for the valid administration of the sacrament.¹ But the Tridentine Fathers, fearing that jurisdiction might sometimes be granted to those who are not suitable for hearing confessions, decreed that no one could hear the confessions of seculars unless approved by the Ordinary: "Yet the holy Synod decrees that no one, even a regular, can hear the confessions of seculars, even priests, nor be reputed suitable for this, unless either he has a parochial benefice, or by the Bishops, through an examination, if it shall seem necessary to them, or otherwise, he is judged suitable, and obtains approval, which is to be given gratuitously."² These words indeed are understood by all not only concerning the liceity, but also concerning the validity of absolution; for the Council declares that no one, unless approved, can hear the confessions of seculars, nor be suitable for this.

¹ A few indeed said that, even before Trent, approval was necessary for those who enjoyed only delegated jurisdiction; but they can prove this by no solid argument, as may be seen apud Suarez, disp. XXVIII, sect. 3, n. 2-4.

² Sess. XXIII, ch. 15 on Reformation.

n. 373.

Therefore two things (according to can. 872) are desired in the minister for the valid administration of the sacrament: priestly order and jurisdiction, which must be preceded by a judgment of suitability. Concerning the former enough has been said elsewhere; concerning the latter it must be spoken in the following order: -

On the prior judgment of suitability;

On jurisdiction, whether ordinary or delegated;

On the jurisdiction which the Church supplies;

On the jurisdiction of regulars;

On jurisdiction with respect to nuns;

On the limitation of jurisdiction, or the reservation of cases.

n. 382.

§ II. On Jurisdiction, Whether Ordinary or Delegated

Ordinary jurisdiction is that which by the law itself is attached to an office; delegated jurisdiction is that which has been committed to a person (can. 197).

⁴ St. Thomas, Suppl., q. 8, a. 4-5; Suarez, disp. XXV-XXVI; Lugo, disp. XIX; Salmant., cap. 11, n. 4-85; Lacroix, n. 1548-1574; Billuart, diss. VI, a. 2-3; St. Alphonsus, n. 537-569; Marc, n. 1749-1752; Lehmk., n. 372-386; Konings, n. 1393-1394; Ballerini P., n. 588 sq.; Haine, q. 71-72; Genicot, n. 325-329; Noldin, 334-344.

n. 383.

I. On Ordinary Jurisdiction — 1° On Those Who Have Ordinary Jurisdiction

Principle: All those obtain ordinary jurisdiction on whom there is conferred an office to which it is attached by the law itself. It is certain.

These are:¹ the Pontiff for the whole Church, the Cardinals of the Holy Roman Church, the Ordinary of the place for his territory, the pastor for his parish, and others who are in the place of the pastor; moreover also the penitentiary canon of a collegiate church, and exempt religious Superiors for their subjects.

¹ Code, c. 873.

(A) The Pontiff for the universal Church, and indeed for both forums, as was proved in the Treatise on the Church, n. 198-202; all Cardinals (and not only the major Penitentiary, as formerly), for the internal forum and everywhere in the world.² - Nuncios or Apostolic Delegates now have only delegated jurisdiction, according to the tenor of their mandate.

² Code, c. 873 and can. 239, § 1, n. 1.

n. 384.

(B) The Ordinary of the place, and therefore those who are designated by this name: the Bishop for his diocese, in both forums, yet dependently on the Roman Pontiff, who can limit his jurisdiction; vicars general, likewise in both forums, yet dependently on the Bishop, so that, when he dies, their faculties expire by that very fact; when the Bishop has died, the vicar capitular (in the United States, the administrator of the diocese), for both forums.

Moreover, from the Code, c. 401, "the penitentiary canon, both of the cathedral church and of a collegiate church, obtains by law ordinary power, which however he cannot delegate to others, of absolving even from sins and from censures reserved to the Bishop, in the diocese even outsiders, and diocesan subjects even outside the territory of the diocese."

n. 385.

(C) The pastor in his parish, in the internal forum only; this power belongs to removable pastors, who in France are called succursalistes; likewise to vicars who are endowed with full parochial power, namely vicars oeconomi, substitutes, and sometimes assistants, but never coadjutors.³

³ Code, can. 451, § 2, 2° and can. 473, 474, 475, 476.

n. 386.

(D) Exempt religious Superiors, namely abbots, provosts general, provincials, and local superiors, have from the law,⁴ and according to the norm of the Constitutions, ordinary jurisdiction over their subjects; for by virtue of their office the care of the souls of their subjects is incumbent on them.

⁴ Code, c. 873, § 2.

n. 387.

Corollary. In three ways penitents can become subjects of those who are endowed with ordinary jurisdiction:

(A) By reason of domicile or quasi-domicile; namely, all those who have a domicile or quasi-domicile in some diocese or parish are by that very fact subjected to the ordinary jurisdiction of the Bishop of this diocese or of the pastor of this place. Now domicile is acquired by residence in some parish or quasi-parish, or at least in a diocese, apostolic vicariate, or apostolic prefecture; this residence is either joined with the intention of remaining there perpetually, if nothing calls one away from it, or is prolonged to a completed ten years;¹ quasi-domicile, moreover, by residence as above, which is either joined with the intention of remaining there at least for six months, or has in fact been prolonged for the greater part of a year (or for six months).² - He who has two domiciles, or a domicile in one place and a quasi-domicile in another, is subject to the ordinary jurisdiction of the Ordinary or pastor of each.

¹ Code, c. 92, § 1.

² Code, c. 92, § 2.

(B) By reason of privilege of state, or enrollment: (a) those who are of the family of Cardinals are reputed their subjects; hence Cardinals are able to choose as confessor, both for themselves and for their family, any priest, who, if he lacks jurisdiction, obtains it by the law itself;³ (b) likewise novices, domestics, and perpetual table-companions of some monastery or religious house are reputed subjects of the superior of this house.

³ Code, c. 239.

(C) From the Code,⁴ vagi, who have no domicile, and travelers, who have a domicile elsewhere but make a journey through another diocese or parish, and also Catholics of any Oriental rite, can be validly and licitly absolved not only by the pastors of the places where for the time they are staying, but by all priests of either clergy approved in some place for hearing confessions, whether furnished with ordinary or delegated jurisdiction.

⁴ Code, c. 881.

n. 389.

3° On the Acquisition and Loss of Ordinary Jurisdiction

Ordinary jurisdiction begins with the possession of the benefice or office, and ceases with its loss. For, as was said, it is attached to the office itself. Now an office is lost by resignation, privation, removal, transfer, the lapse of a predefined time,³ and, after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict.⁴

³ Code, c. 183.

⁴ Code, c. 873, § 3.

n. 390.

II. On Delegated Jurisdiction

1° Its nature. Delegated jurisdiction differs from ordinary jurisdiction especially in two things: (a) he who possesses ordinary jurisdiction exercises it by his own right and name, whereas the delegate acts in the name and by the right of the principal, from whom he received jurisdiction; (b) ordinary jurisdiction is exercised validly over subjects everywhere in the world, without new approval, whereas delegated jurisdiction cannot be exercised outside the territory for which it was granted.

n. 391.

2° On the right of granting delegated jurisdiction. (A) In general the Code (can. 199) establishes these things concerning the power of delegating and subdelegating. "He who has ordinary power of jurisdiction can delegate it to another in whole or in part, unless something else is expressly provided by law. - Even power of jurisdiction delegated by the Apostolic See can be subdelegated either for an act, or even habitually, unless the industry of the person has been chosen or subdelegation prohibited. - Power delegated for the universality of affairs by one who below the Roman Pontiff has ordinary power can be subdelegated in individual cases. - In other cases delegated power of jurisdiction can be subdelegated only by an expressly made concession; but delegated judges can subdelegate some non-jurisdictional article even without an express commission. - No subdelegated power can again be subdelegated, unless this has been expressly granted."

(B) With respect to the penitential forum: (a) the Supreme Pontiff can delegate for the whole Church. Moreover, those who are delegated by the Supreme Pontiff, even in a transitory manner, for example, apostolic delegates who are deputed for carrying out some mission for a time, can subdelegate others either for an act, or even habitually. (b) The Ordinary of the place in which confessions are received (under which name come the vicar general, Administrator, Vicar and Apostolic Prefect, and likewise those who, when the aforesaid are lacking, meanwhile succeed in the governance according to the prescription of law) can delegate priests, both secular and regular, in his territory, as is clear from can. 874: "The Ordinary of the place in which confessions are received confers delegated jurisdiction for receiving the confessions of any persons, whether secular or religious, upon priests, both secular and religious, even exempt..." (c) The penitentiary canon, although his jurisdiction is ordinary, does not enjoy the faculty of delegating (Codex, c. 401).

n. 392.

(d) Hence, once the Code had been promulgated, a controversy arose concerning the power of delegating belonging to pastors. 1) Some thought that pastors could, at least in urgent cases, delegate other priests to hear the confessions of their subjects, by force of the general principle that those having ordinary power can delegate it. 2) But the Pontifical Commission for authentically interpreting the Canons of the Code, on 16 Oct. 1919, declared that pastors, vicars of pastors, or other priests delegated for the universality of cases cannot delegate to secular or regular priests jurisdiction for receiving confessions, nor extend beyond the circumscribed limits jurisdiction to those already approved, but need for this a special faculty or mandate of the Ordinary of the place. And deservedly; for the Code designates no one except the Ordinary of the place as the source from which delegation is to be received, and positively denies this faculty of delegating to the penitentiary canon; hence by being silent about the pastor, it denies him the same faculty; - moreover, already for three centuries, the whole jurisprudence tends to this, that the Ordinary of the place be constituted, for seculars, the sole source of delegated jurisdiction.¹

¹ J. Creusen and A. Vermeersch, Summula novi juris, 1918, n. 346; A. Boudinhon, Rev. du cl. fr., 15 Apr. 1919, p. 96, and 1 July 1919, p. 73.

In practice, however, there is scarcely any difficulty; for Bishops are accustomed to grant to pastors living within the limits of the diocese the faculty of calling pastors exercising ministry in contiguous places of their diocese and of conferring jurisdiction on them; moreover recourse to the Bishop is easy today.

n. 393.

3° On the various modes of delegating jurisdiction. Delegated jurisdiction can be acquired in two ways: from man and from law.

(A) From man, or from a Superior having ordinary jurisdiction, or from a delegate who can subdelegate. But this delegation must be received from the Ordinary of the place in which absolution is given, not from the Ordinary of the penitent or of the delegate.²

² Code, c. 874, § 1.

So that jurisdiction may validly be obtained, (a) there is required an express concession, whether in writing or by words, and a presumed one does not suffice; (b) this concession must be free, and not extorted by force or threats;³ (c) nor does it suffice to write to request jurisdiction, but the response of the one delegating must be received, in whatever way transmitted, directly or through another.

³ According to all, it is illicit to extort jurisdiction by grave fear, and most Canonists hold that jurisdiction thus extorted is invalid; thus Reiffenstuel, l. I Decret., tit. 40, n. 62; Schmalzgrueber, ibid., n. 19; De Angelis, ibid., n. 6. - Yet some doubt concerning this, such as Pirhing, n. 33; Lacroix, n. 1554. Cf. c. 103. - There will usually be no difficulty in practice, since the Church supplies jurisdiction in the case of common error and speculative doubt, as will be explained below.

But the Superior can grant jurisdiction in a twofold manner: directly, when he commits the power of absolving to the priest himself; indirectly, when the faculty of choosing any priest as confessor is granted to the penitent.¹

¹ Thus, at the time of a Jubilee, the Supreme Pontiff generally grants to seculars and regulars the faculty of choosing a confessor for themselves.

n. 394.

(B) From law, or from the Code: (a) Cardinals and Bishops, whether residential or titular, from the accepted authentic notice of canonical provision having been completed, can choose for themselves and their families a priest for receiving confessions; if he lacks jurisdiction, he obtains it by the law itself, even with respect to reserved sins and censures also, with the sole exception of censures reserved to the Apostolic See in the most special manner and those which are attached to the revelation of the secret of the Holy Office.²

² Code, c. 239 and 349.

(b) Any priests undertaking an overseas journey, provided they have from their own Ordinary, or from the Ordinary of the port, whether initial or intermediate, the faculty of receiving confessions, can during the whole journey validly and licitly absolve both the faithful sailing with them, and the faithful who for any reason come to the ship, and those who, when they themselves call at land in passing, ask to confess to them, and can validly and licitly absolve them even from cases reserved to the Ordinary of the place.³

³ Code, c. 883.

n. 395.

(c) "All priests of either clergy approved for hearing confessions in some place, furnished with either ordinary or delegated jurisdiction, can also validly and licitly absolve vagi and travelers from another diocese or parish approaching them, and likewise Catholics of any Oriental rite."⁴

⁴ Code, c. 881.

(d) Chaplains of soldiers can hear the confessions of soldiers even outside the diocese of the approving Bishop, when the soldiers are in camp or on a journey; during war they receive very ample faculties not only with respect to soldiers, but also with respect to the faithful of the regions in which they accompany the army.⁵

⁵ Thus, for example, the Sacred Penitentiary, 18 Dec. 1914 (A. A. S., VI, 712), granted to chaplains of soldiers that, while they accompany the army, they may receive the confessions of any faithful approaching them and use in their favor the faculties granted to them for the forum of conscience.

n. 396.

4° On the Acquisition and Loss of Delegated Jurisdiction

Delegated jurisdiction begins at that instant at which its concession, authentically delegated in writing or by words, becomes known.

n. 397.

But it ceases: by revocation by the one delegating directly intimated to the delegate, or by resignation of the delegate directly intimated to the one delegating and accepted by the same;¹ but it cannot be revoked without grave cause;² by completion of the mandate, lapse of the time, or exhaustion of the number of cases for which it was granted;³ nevertheless, for the internal forum, an act placed through inadvertence after the time has elapsed or after the number of cases has been exhausted is valid;⁴ moreover, if some confession has been begun, jurisdiction endures until the penitent is absolved; when the final cause of the delegation ceases;⁵ sometimes by the death of the one delegating or by his cessation from office, namely when the delegation was made for a particular case and the confession has not yet begun; but not when it is granted until revocation (which commonly occurs), or until the good pleasure of the see.

¹ Code, c. 207.

² Code, c. 880.

³ Code, c. 207.

⁴ Code, c. 207.

⁵ Code, c. 207.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 8 passages

Vol. III, Bk. II, Tr. V, Chapter I: The Power Required and Sufficient

n. 447.

— "The minister of this sacrament is only a priest" (c. 871). Besides the power of order, for the valid absolution of sins there is required in the minister the power of jurisdiction, whether ordinary or delegated, over the penitent (c. 872).

The power of order is required because it is a sacrament; the power of jurisdiction, because it is an institution after the manner of a judgment. Opportune is the warning given us by the Code that jurisdiction is something relative, not only with respect to the matter, as the power of order itself is, but also with respect to persons. Wherefore the discussion is of jurisdiction over the penitent. Moreover, priestly order is required only for the absolution of sins. Jurisdiction for removing censures or ecclesiastical penalties can validly be granted by a competent ecclesiastical Superior to any cleric, indeed, by the Supreme Pontiff even to a non-cleric. To this pertain certain absolutions which in the time of St. Cyprian some deacons conferred.

The Council of Trent, sess. XXIII, ch. 25 De regularibus, in order suitably to compose the privileged jurisdiction of regulars with the authority of the local Ordinary, began to require, for validly absolving seculars, either a parochial benefice or approval from the bishop. This approval, strictly taken, as distinct from jurisdiction, implied, besides a judgment concerning suitability, the consent of the local Ordinary that one could use his jurisdiction. Often, however, the bishop intended at the same time to grant jurisdiction to the confessor whom he approved, so that most regular confessors drew jurisdiction from a twofold source: from the source of pontifical privilege, through their proper Superiors, and from the source of the diocesan prelate. Concerning approval which must be joined to jurisdiction the Code says nothing expressly. Yet from the tenor itself of c. 874, §1, it is sufficiently evident that this is the mind of the Code: that not even exempt religious should have any jurisdiction available for commonly absolving seculars without the faculty of the local Ordinary. Nevertheless a formal and express revocation of the privilege by force of which regular Superiors conferred jurisdiction for absolving seculars is read in no canon. But because of the perpetual necessity of diocesan jurisdiction, it has become so useless that it seems to be among those things which are to be abrogated by desuetude.

Because jurisdiction is required, the power of the Church to prescribe the manner of exercise even for the very value of the act is made more manifest.

n. 448.

— This jurisdiction, moreover, can be either ordinary or delegated.

Those who possess ordinary jurisdiction can absolve subjects everywhere in the world; while in delegates there is required jurisdiction given by the Ordinary of the place where confessions are heard, unless the penitents can be absolved by force of jurisdiction communicated by a religious Superior as such. The priest also whom either a Cardinal or a bishop, even titular, has chosen as confessor for himself and his household obtains by the law itself, everywhere, jurisdiction available for hearing them (cf. c. 239, §1, 2°, and 349, §1, 1°).

But, contrary to the general statute of c. 199, §1, ordinary jurisdiction for sacramentally absolving penitents can be delegated only by those whom cc. 874 and 875 indicate as delegators.

This was gathered from the mind of the legislator, and now it is authentically established concerning pastors and vicars of pastors, from the response of the Pontifical Commission, October 16, 1919, ad 3 (A.A.S., t. XI, 1919, p. 477).

But jurisdiction, both ordinary and delegated by the local Ordinary, is valid for hearing vagi, travelers from another diocese, and Catholics of the Oriental rite (c. 881).

n. 449.

— 1. Ordinary jurisdiction ceases for all by loss of office; and by excommunication, suspension from office, and interdict, but only after a condemnatory or declaratory sentence has been issued against him who is subject to these penalties (c. 873, §3).

And so, before a sentence of this kind, one excommunicated validly hears and absolves penitents; and licitly if he is tolerated and is requested by a member of the faithful (cf. c. 2261 and n. 211). In danger of death, every priest validly and licitly helps the dying person who asks.

Delegated jurisdiction is extinguished when the mandate has been completed, when the time has elapsed, or when the number of cases for which it was conceded has been exhausted; when the final cause of the delegation ceases (as if someone is delegated to supply for a sick chaplain, and he, before the arrival of the delegate, recovers and resumes the office); by revocation directly intimated to the delegate, or by renunciation directly intimated to the delegator and accepted by the same; also when the right of the delegator is resolved, if nevertheless this appears from the clauses, or the power was made only for sacramentally hearing persons expressed in the rescript or indult, and the matter is still intact (cf. cc. 207 and 61). Thus jurisdiction conceded "at our good pleasure," from c. 73, and more clearly "as long as I live," or "during my office," ceases by the death of the delegator; but not that which is conceded "until revocation."
Nevertheless, a priest validly absolves who inadvertently uses jurisdiction after the time has elapsed or the number of cases for which he had it has been exhausted (c. 207, §2).

n. 450.

— Revocation or suspension of jurisdiction is not to be done without a grave cause. If, nevertheless, this exists, the Ordinary can prohibit the office of confessor even to a pastor or penitentiary, with recourse in devolutive effect to the Apostolic See remaining safe. But, without consulting the Holy See, it is not lawful for a bishop to take jurisdiction away all at once from all the confessors of a religious house, if the house is formed (c. 880, §3).

This canon is written in such a way that it leaves untouched the authority of Ordinaries, who therefore always validly take jurisdiction away, even if the revocation is prohibited. For it permits only recourse in devolutive effect to the pastor or penitentiary himself who has been revoked or suspended from hearing confessions, so that, until the Holy See has admitted the recourse, the episcopal decree produces its effects. Toward religious, however, the bishop is prohibited from exercising only a collective revocation, if it concerns a formed house. Nothing prevents the bishop, for grave causes, from suspending several confessors of the same religious house successively and individually, even if none should now remain endowed with diocesan jurisdiction.

n. 451.

— "Delegated jurisdiction or the license of hearing confessions can be conceded circumscribed by certain limits. Let local Ordinaries and religious Superiors beware, however, lest without reasonable cause they restrict jurisdiction or license too much" (c. 878).

The most usual limitation is had in reservations of cases, about which we shall treat below. By reason of younger age, many Ordinaries also are accustomed to concede jurisdiction to priests who are not yet 30 or 35 years old for hearing only men. It also happens that for hearing girls boarding with religious women, a special jurisdiction is required which is required for nuns and Sisters.

A local restriction is sometimes made in this way, that jurisdiction is conceded for hearing confessions in a certain church or in a few certain defined churches, so that the circumstance of place is to be held as a predefined condition for having jurisdiction. But it would be foreign to juridic reasons to require the circumstance of place for the value of a confession received by a priest to whom jurisdiction over persons is simply granted. Finally, the most frequent limitation is temporal, by which jurisdiction is conceded for a year or several years.

n. 452.

— Of itself, jurisdiction or license of hearing confessions is to be conceded only to those "who shall have been found suitable through an examination," unless it concerns a priest whose theological doctrine local Ordinaries and religious Superiors "have otherwise ascertained." And after jurisdiction or license has been conceded, if they "prudently doubt whether a priest previously approved by them still continues to be suitable, let them subject him to a new test of doctrine, even if it concerns a pastor or canon penitentiary" (c. 877).

Again, however, by canon 871 local Ordinaries are warned not habitually to concede jurisdiction to religious whom their proper Superior has not presented; but, to those presented, with the proof of examination remaining safe, not to deny the same without a grave cause.

Observe that the same prudence is prescribed by the canon to the local Ordinary who confers jurisdiction and to the religious Superior, even when he merely consents to the use of conceded jurisdiction. And that the examination which the bishop imposes upon regulars themselves who wish to hear the confessions of seculars must be undergone by them is now in no way doubted. But by cc. 877 and 878, too, controversies are cut away concerning the right which regulars would have had so that, having been found suitable, they might be approved absolutely and could not be recalled to an examination. For from c. 878 the bishop remains free to circumscribe the faculty of receiving confessions by time.

When this space has elapsed, the bishop will be permitted, in order to concede a new faculty, to impose the reasonable condition of examination. But if he shall have given a perpetual faculty absolutely, a positive suspicion of incompetence will indeed be necessary so that he may licitly require a new examination; nevertheless he always acts validly, since, from c. 880, he can always efficaciously remove the jurisdiction itself, with recourse in devolutive effect to the Holy See remaining safe.

n. 453.

— For the very value of confessions it is necessary that jurisdiction be expressed in writing or in words. The concession, moreover, must be gratuitous (c. 879).

And so a tacit concession is not sufficient, which easily labors under ambiguity, and much less a presumed one concerning the future, since this is not true, but only would be true if it were sought. Nevertheless an intimation of the concession is not required. Wherefore, in an urgent case, jurisdiction can, as they say, be presumed concerning the present; that is, one who is morally certain concerning the petition received by the bishop by which he asks for jurisdiction, and concerning an affirmative response given either to his procurator or by letters, can, in urgent matters, even before the letters are received or before the return of the mandatary, receive confessions. And the mandatary can through a telegraphic message make the petitioner certain that the prayers have been heard. Nor is an explicit formula required, but a formula suffices which explicitly, for example by referring to appointment or mission, signifies from law or usage the concession of jurisdiction joined with appointment or mission.

n. 454.

Summary

— I. In the minister there is required the power of order together with jurisdiction, since at the same time he administers a sacrament and pronounces a judicial sentence.

Jurisdiction can be ordinary or delegated.

Ordinary jurisdiction can be exercised everywhere over subjects; nevertheless it can be delegated only by those whom cc. 874 and 875 indicate as delegators.

Delegated jurisdiction must proceed from the Ordinary of the place where confessions are heard, unless the penitents can be absolved by force of jurisdiction communicated by a religious Superior as such.

By both ordinary and delegated jurisdiction, vagi, travelers, and Catholics of the Oriental rite can be absolved.

II. Ordinary jurisdiction ceases for all by loss of office; and besides, but after a condemnatory or declaratory sentence, by excommunication, suspension from office, and interdict.

Delegated jurisdiction ceases when the mandate has been completed, when the time has elapsed, when the number of cases for which it was conceded has been exhausted; when the final cause of delegation ceases; by revocation directly intimated to the delegate; by accepted renunciation; when the right of the delegator is resolved, if this appears from the clauses, or the power is only of hearing persons expressed in the rescript or indult, and the matter is still intact. Thus, by the death of the delegator, jurisdiction conceded through the words "at our good pleasure" ceases, but not if it is said "until revocation."

Validly, from c. 207, §2, he absolves who, after the time has elapsed or the number of cases has been exhausted, inadvertently uses jurisdiction.

III. Revocation or suspension of delegated jurisdiction, made by the Ordinary, is valid; but it demands a grave cause in order to be licit; nor, without consulting the Holy See, is it lawful for a bishop to deprive all the confessors of a formed religious house of jurisdiction.

The Ordinary can also prohibit the office of confessor to the penitentiary and to the pastor, with recourse in devolutive effect to the Holy See remaining safe.

IV. For a reasonable cause, jurisdiction or the license of hearing confessions can be circumscribed by certain limits: of persons, of time, of place. The most usual restriction is made by reservation of cases.

V. Jurisdiction and the license of hearing confessions is regularly to be conceded only to those who have been found suitable through an examination; and they can be recalled to a new test of doctrine. It is recommended to Ordinaries that, in approving religious, they conduct themselves according to the reasonable will of Superiors.

VI. Jurisdiction is not validly conceded unless expressed in writing or in words; an implicit expression nevertheless can suffice.

The concession must be gratuitous.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 2 passages

Vol. III, Pt. II, Tr. V, Ch. III, Article I. On the Power of the Minister

n. ¶54.

The power of the minister includes two essential elements: priestly order and competent jurisdiction. Concerning jurisdiction, which according to the discipline now in force is customarily granted together with approbation, certain questions occur which must be treated separately. Hence in this article we shall treat: 1. the power of order; 2. jurisdiction in general; 3. putative, doubtful, and probable jurisdiction; 4. the jurisdiction of religious and over religious; 5. the restriction of jurisdiction; 6. absolution from reserved cases.

Vol. III, Pt. II, Tr. V, Ch. III, Art. I, § 1. On the Power of Order

n. 405.

405. Principle. For the valid administration of the sacrament of penance, the power of priestly order is required by divine law.

It was defined as of faith in the Council of Trent:²⁷⁶ "If anyone says that priests who are in mortal sin do not have the power of binding and loosing; or that priests alone are not the ministers of absolution, but that to each and every one of the faithful of Christ it was said: 'Whatsoever you shall bind upon earth shall be bound also in heaven, and whatsoever you shall loose upon earth shall be loosed also in heaven'; and: 'Whose sins you shall forgive, they are forgiven them; and whose sins you shall retain, they are retained'; by virtue of which words anyone may absolve sins, public sins indeed merely through correction, if the person corrected acquiesces, but secret sins through voluntary confession: let him be anathema."

Errors in this matter were committed by: a) the Montanists, who taught that only the spiritual, that is, those inspired by the Holy Ghost, could forgive sins; b) the Waldensians and Wycliffites, who attributed the faculty of absolving even to good laymen, but not to bad priests; c) the Protestants, who altogether denied a proper power of the keys; d) certain Catholics in the Middle Ages, who thought that in a case of necessity a deacon was an extraordinary minister of the sacrament of penance, just as he is also a minister of baptism or the Eucharist.²⁷⁷ Without any reasonable doubt, in ancient times there existed the custom, in extreme necessity when a priest was lacking, of sometimes confessing to a deacon, or even to a layman or a woman. But scarcely any theologian can be adduced who clearly taught that a confession of this kind was a true sacrament. Several, however, commended this confession as most useful, as a sign of great humility and contrition. Especially the commentators on the Decree of Gratian acted thus because of a text of the Decree which they falsely attributed to St. Augustine: "So great, therefore, is the force of confession that, if a priest is lacking, one should confess to one's neighbor.... Although he to whom one confesses does not have the power of loosing, nevertheless he who confesses his crime to his companion is made worthy of pardon by his desire for a priest."²⁷⁸ But since this manner of confessing to laymen at the point of death could have many disadvantages, it gradually passed out of use.

Corollaries. Since a priest alone can validly impart sacramental absolution, it follows: a) that a priest whose ordination is invalid also absolves invalidly; b) that the Church cannot grant a deacon the faculty of absolving from sins, because the Church cannot change the essence of any sacrament; c) that a man is never bound to confess his sins to anyone who is not a priest. Therefore the Church in our days has also gravely prohibited superiors of religious institutes from requiring a manifestation of conscience from their subjects.

²⁷⁶ Sess. 14, can. 10, On Penance (Denz., n. 920); cf. Code of Canon Law, c. 871.

²⁷⁷ Cf. Gromer, Die Laienbeicht im Mittelalter (Munich, 1909); Laurain, De l'intervention des laiques, des diacres et des abbesses dans l'administration de la penitence (Paris, 1897).

²⁷⁸ De vera et falsa poenitentia (Migne, Patr. lat. 40, 1122).

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 14 passages

Vol. II, Part Third: On the Sacrame…, Tr. V, Diss. III, Chapter I: On The Power Of The Minister

n. ¶1744.

The minister of the Sacrament of Penance is only a PRIEST having JURISDICTION over the penitent. - Hence a twofold power is required in him:

The power of ORDER, or that which is conferred in the very Ordination, and which essentially inheres in the sacerdotal character. But the reason why this power is required is that it was said to priests alone: "Receive the Holy Spirit: whose sins you shall forgive, they are forgiven them" (John 20:22, 23). - You will see more among the Dogmatic authors.
The power of JURISDICTION, or that which, superadded to the power of Order and completing it, renders the priest expedient, so that, as judge, he can pronounce a legitimate sentence upon the penitent as a subject. - Moreover, to obtain or freely exercise jurisdiction, according to the present discipline of the Church, approbation is prerequired. But jurisdiction itself, just as it does not belong to all by the same title, so neither does it belong to all in the same fullness, since it can be circumscribed by diverse limitations.

Therefore, so that all things which pertain to the present matter may be treated, we shall discuss: 1. approbation and jurisdiction; 2. the acquisition and loss of jurisdiction; 3. the limitation of jurisdiction as regards persons; and 4. the limitation of jurisdiction as regards sins.

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

n. ¶1745.

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

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

n. ¶1746.

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

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

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

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

n. ¶1747.

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

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

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

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

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

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

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

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

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

Q. 4. Whether PRESUMED approbation suffices?

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

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

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

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

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

n. ¶1748.

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

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

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

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

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, CHAPTER I: ON THE POWER OF THE MINISTER · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, Ch. I, ARTICLE II: ON JURISDICTION · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX I: ON THE JURISDICTION AND APPROBATION OF REGULARS · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTION WITH RESPECT TO NUNS · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, ARTICLE III: ON RESERVED CASES · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, Art. III, § I, Or On The Principle And Nature Of Reservation · Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, Art. III, § II. On The Absolution Of Reserved Things

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

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

n. ¶1749.

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

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

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

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

n. ¶1750.

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

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

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

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

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

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

n. ¶1751.

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

Jurisdiction is DELEGATED directly or indirectly.¹

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

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

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

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

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

n. ¶1752.

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

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

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

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

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

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

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

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

n. ¶1753.

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

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

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

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

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

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

n. ¶1754.

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

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

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

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

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

n. ¶1755.

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

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

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

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

n. ¶1756.

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

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

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 18 passages

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, CHAPTER I: ON THE POWER OF THE MINISTER

n. ¶1390.

1390. - In order that someone validly absolve, nothing else is required on the part of the one absolving except intention, the power of Order and of jurisdiction; but that he also absolve rightly, licitly, and worthily, probity, knowledge, and prudence are required. Therefore three things are required for the adequate power of the Minister of Penance, namely, 1° the power of Order; 2° the power of jurisdiction; 3° approbation.

I. The power of Order is required, i.e. that which belongs to the Minister by force of ordination, and is intrinsically attached to the priestly character. The reason is that to priests alone was it said by Christ: Receive the Holy Spirit; whose sins you shall forgive, they are forgiven them. - This is established besides by the manifold definition of the Church.

II. The power of jurisdiction is required, i.e. the power by which a priest, as judge, can pass sentence on certain persons, as being his subjects. This is clear from Trent.

III. Approbation is required for hearing Confessions both licitly and validly, or a declaration of the Ordinary judging juridically concerning the suitability of the priest, or concerning the three gifts just indicated, which are necessary in order that someone absolve rightly, licitly, and worthily. - Trent.

Note. - Even a priest who is not a curate is obliged to render himself fit for hearing Confessions if he is in a place where the inhabitants, on account of a scarcity of confessors, labor under grave spiritual necessity, which today, since the number of priests has been so diminished, and especially in this region, is easily found.

Besides, it is altogether to be advised to parish priests whose subjects cannot easily find another occasion of confessing, except among them, that from time to time they call in some unknown confessors and offer their subjects every liberty of confessing to these; indeed, while strangers are exercising their office, let them not themselves hear Confessions. Thus not rarely invalid Confessions and sacrileges will be prevented. Certainly from this head already the utility of missions appears.

We must treat 1° concerning approbation; 2° concerning jurisdiction; 3° concerning the reservation of cases.

ON APPROBATION.

Approbation, taken nakedly, can be defined: the juridical judgment of a Prelate concerning the suitability of a priest for hearing Confessions.

Hence, for granting approbation, an examination is not essentially required; for a prudent judgment concerning suitability can be had even without an examination, when this is otherwise established.

n. ¶1391.

1391. - I say I. Approbation is required for hearing Confessions both licitly and validly. Thus by force of Trent.

I say II. Only the Bishop can approve, or one who has quasi-episcopal jurisdiction. The reason is that it pertains only to the Prelates of the Church to judge concerning the suitability of Ministers to be deputed for hearing Confessions. This is also clear from Trent cited above. - But the Bishop can approve either by himself or through another delegated by him, because approbation is an act of jurisdiction; but ordinary jurisdiction can be delegated.

According to the present discipline of the Church, together with approbation jurisdiction also is usually conferred by the Prelate upon priests; and therefore in common usage, under the name of approbation, jurisdiction also is comprehended. But formerly, delegated jurisdiction was commonly granted by parish priests, and approbation only by Bishops; which faculty indeed now scarcely has exercise among parish priests, since scarcely now can a priest be found who, together with approbation, has not also already received jurisdiction from the Bishop.

n. ¶1392.

1392. Questions. - Query 1° From what Bishop must approbation be had?

Resp. From the opinion today altogether to be held, approbation must be given by the Bishop of the diocese in which Confessions are to be heard; hence the approbation either of the Bishop of the penitents or of the Bishop of the priests does not suffice. This is clear from the Bull Cum sicut of Innocent XII, April 19, 1700, apud St. Alphonsus, which Bull Benedict XIV confirmed in the Constitution Apostolica indulta.

Query 2° Can someone absolve his own subject in a foreign diocese without the approbation of the Ordinary?

Resp. 1° Affirm., if he has truly personal or ordinary jurisdiction over him. The reason is that whoever by reason of his office has ordinary jurisdiction is considered approved by the law itself for hearing his own subjects everywhere; nor is ordinary jurisdiction, provided it is exercised without judicial stir, bound to place; but unless it is specially restricted, it can be exercised everywhere. - Thus commonly. Hence a Bishop and a parish priest can absolve their subjects outside the parish and diocese without the approbation of the Bishop of the place.

Resp. 2° Neg., if over the penitent there is had only delegated jurisdiction; because this per se is considered merely territorial, not personal, and therefore does not follow the delegate outside the territory.

Query 3° Does presumed approbation suffice?

Resp. Neg. The reason is that from Trent approbation actually and absolutely existing, and already obtained, is required. But for approbation of this kind actual consent declared by some sign is required. Indeed it is not lawful to begin Confessions before that consent, requested by letters, has been received, even if it seems certain to be obtained. - Thus commonly.

A fortiori, ratihabition of approbation even prudently presumed is not valid, because ratihabition has place only in acts whose value can be suspended into the future; but the value of present absolution cannot be suspended; for the value of Sacraments cannot depend on a future action.

Query 4° Can a Bishop validly and licitly limit approbation with respect to a certain time, place, and persons?

Resp. 1° Affirm. as regards validity, even without cause. The reason is that it is an act altogether dependent on the will of the Bishop, as Superior. Hence just as he can validly refuse approbation, so he can grant it only with restriction. This is also clear from the 13th proposition condemned by Alexander VII: He satisfies the precept of annual Confession who confesses to a regular presented to the Bishop, but unjustly reprobated. Therefore the denial of approbation, even an unjust denial, is valid; therefore a fortiori a restriction. - This is also clear from Trent, where it is said: Unless he obtain approbation. But he who obtains it with restriction simply does not obtain it for the cases excluded.... Therefore.

Resp. 2° As regards liceity, distinguish. - A Bishop can indeed restrict or even altogether deny approbation for a just cause, as is evident; because the necessity of approbation was introduced for this end, that the suitable may be separated from the unsuitable. But otherwise if he does this without a just cause.

Query 5° What are the just causes for limiting approbation to a time, etc.?

Resp. They are for the most part the following: 1° if now there is a necessity of having several confessors, which afterward ceases; 2° if the one to be approved indeed has sufficient knowledge, but greater knowledge is deservedly desired for perpetual approbation; 3° if there is a prudent fear lest, after once having perpetual approbation, he neglect study; 4° for trying how he conducts himself in hearing Confessions, namely whether he applies general principles well in practice, etc.

Query 6° Can a Bishop validly and licitly revoke granted approbation?

Resp. 1° Affirm. by reason of validity, if a just cause is present. Otherwise it is controverted. Practically, however, the opinion denying this is scarcely to be judged probable, since for the Bishop there can be innumerable just causes for revoking approbation which are unknown to the confessor.

Resp. 2° By reason of liceity, distinguish. 1° A Bishop can indeed for just causes revoke approbation even granted without limitation; for this follows from the necessity of approbation, which demands that whoever ceases to be suitable be removed from the office. 2° But he cannot revoke approbation without a just cause. For from what has been said, a Bishop cannot deny approbation without a cause; therefore a fortiori he cannot revoke without cause the one granted; since according to the saying: A guest is more disgracefully cast out than not admitted.

Query 7° Can a Bishop approve a foreign priest?

Resp. A Bishop can approve any suitable one actually existing in his diocese, even if only passing through. This is clear from the universal practice and the common opinion of Theologians against a few, who for this require a quasi-domicile, or at least a domicile of habitation in the diocese of the approving Bishop. The reason is that delegation or a mandate can be committed to anyone, provided he is capable. This is clear moreover from the practice which is universally observed in the Church.

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

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

n. ¶1393.

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

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

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

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

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

n. ¶1394.

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

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

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

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

Query 2° Can delegated jurisdiction be subdelegated?

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

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

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

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

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

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

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

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

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

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

These things having been noted beforehand:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX I: ON THE JURISDICTION AND APPROBATION OF REGULARS

Regulars, by reason of privileges and of immediate dependence on the Supreme Pontiff, differ in several things as regards jurisdiction from secular priests. Hence:

n. ¶1395.

1395. - I say I. Regulars properly so called, or those who emit solemn vows and are endowed with the privilege of exemption, and likewise those who communicate with Mendicants in privileges, receive immediately from the Pope jurisdiction for hearing the Confessions both of their own and of seculars. Hence jurisdiction granted to individual religious priests is understood, with the communication or delegation of their own Superior added. - This is clear from the Constitutions of the Supreme Pontiffs in the Corpus Juris; likewise from other Constitutions, which, although afterward modified, especially by Trent, as regards privileges, nevertheless remained irrevoked as regards the substance of jurisdiction. - Thus commonly with Lugo, Lacroix, and Billuart. - There are however those who contradict, especially today, or after the Resolution given by the Sacred Congregation of Bishops and Regulars, March 2, 1866, which we report in n. 1397, q. 8°. This resolution, however, does not seem to others to settle the question, since the proposed doubt regards a Regular having a faculty from the Bishop. Nor indeed, they say, is it thereby excluded that a Regular can draw a faculty also from another source.

I say II. Regulars, for hearing the Confessions of their own, receive approbation together with jurisdiction from the Superiors of their monastery or Order; but for hearing the Confessions of seculars they receive approbation from the Bishop of the place where the Confessions are to be heard. The reason for the first is that Trent required the approbation of the Bishop only for the Confession of seculars, and did not change the ancient discipline as regards the Confessions of Regulars. The reason for the second is clear from the Decree of Innocent XII, in the year 1700, by which it was sanctioned that confessors, whoever they may be, both seculars and regulars, can by no means hear secular penitents without the approbation of the Bishop of the place.

I say III. Regulars cannot confess, at least ordinarily, outside their own Order, without the consent of their Superiors; indeed even in the Monastery, to no one other than the one designated by the Superior himself. But those living outside the Monastery, or making a journey, cannot confess except to a companion, if they have some suitable one; but if they do not have one, they can confess to any suitable priest, whether regular or secular. - These things are clear from privileges which are known to have been granted to all Religions by Innocent IV and by other Supreme Pontiffs.

n. ¶1396.

1396. Resolves. - 1° Although Regulars have jurisdiction from the Pope, nevertheless they have it bound as regards hearing the Confessions of seculars; since for the validity of absolution the approbation of the Bishop, as a condition sine qua non, is required. Thus Trent decreed that "no one, even a regular, can hear the Confessions of seculars, ... unless either he has a parochial benefice, or obtains approbation from the Bishops."

2° If the Bishop expressly granted approbation only for some transitory act, e.g. for performing some Mission, the faculty received is considered to be valid for that act alone, and for every judgment then begun.

3° If the Bishop, or your Superior by his delegation, grants you approbation for a determined class of penitents, the faculty cannot be extended to others, as is evident. But if the request for the faculty from the Bishop or from the Superior is general, and the concession was not restricted, the faculty obtained is not limited to the work which was the occasion of the petition. Thus, e.g., if you seek a faculty on the occasion of giving spiritual exercises to Nuns, in such a convent, from the same faculty received, you can hear also the Confessions of other faithful. The reason is that in a concession is contained whatever is not excepted. Except however reserved cases, which by the law itself are never understood to be comprehended in a general faculty of hearing Confessions.

4° A religious missionary called by the Bishop to perform a Mission in his diocese, by that very fact receives tacit approbation for hearing Confessions during the time of the Mission for which he is called. The same must be said if he was requested by the parish priest or another Superior with the license of the Bishop. Nevertheless he is considered approved only for ordinary cases. Hence in practice recourse must always be had to the Bishop for determining the extension or measure of the approbation.

5° When a religious Superior, by delegation of the Bishop, employs a subject for general works of the Sacred Ministry, with the hypothesis of some special restriction set aside, he is considered to grant him an all-sided faculty for any penitents whatsoever, and for all reserved cases also contained in the episcopal concession; the reason is that he is considered to grant all that which he can and is accustomed to grant, according to the aforesaid rule: In a concession is contained whatever is not excepted.

n. ¶1397.

1397. Questions. - Query 1° Can Regulars outside the house, when a suitable companion is lacking, confess to a priest not approved?

Resp. See n. 1195. G). b).

Query 2° Can a Bishop without cause deny approbation to Regulars?

Resp. Neg. "For," says Pignatelli, "regular confessors do not receive jurisdiction from the Bishop, but from the Supreme Pontiff, and approbation is required only as a condition, that jurisdiction can be exercised. Therefore Bishops cannot prohibit Regulars from absolving at some time."... Nevertheless, if approbation is lacking, even if unjustly denied, jurisdiction also will be lacking. Cf. n. 1392. q. 4°.

Query 3° Can a Bishop approve Regulars with a limitation of time, persons, or places?

Resp. Affirm. This is clear from various Decrees of the Holy See. - See St. Alphonsus. See however n. 1196. 4°.

Query 4° Can a Bishop revoke approbation granted to Regulars?

Resp. 1° He cannot revoke the approbation of all Regulars of the same community without consulting the Sacred Congregation of Bishops. Thus from the Bull Superna. - Except if there is question of regions far distant from the City, and a very grave cause is present; concerning which the Sacred Congregation willed the consciences of Bishops to be gravely burdened.

Resp. 2° But a Bishop can revoke the approbation of individual Regulars in the individual; but if there is question of a Regular approved simply and without any limitation of time, i.e. not for a determined time or at his revocation, will, or good pleasure, and approved after a previous examination, only for a just cause concerning Confession; nevertheless one approved in this way by his Vicar or by predecessor Bishops, and not by himself, he can freely revoke and subject to a new examination for a just cause. Thus from the same Bull Superna.

Query 5° Does a Regular once approved in some diocese need a new approbation if, after changing his habitation, he returns to the same diocese?

Resp. Neg., unless the diocesan statutes or the Bishop establish otherwise. The reason is that one approved indefinitely and without limitation remains approved at least until an implicit revocation of the approbation; but in the present case no revocation has intervened, not even an implicit one. Therefore. - Thus Lacroix, Lugo, with the common opinion.

Query 6° Does a Regular approved in some diocese need a new approbation for validly absolving if, after changing place, he passes through the same diocese?

Resp. Neg., as at q. 5°, because approbation granted indefinitely and without limitation endures until revocation. - Lacroix.

Query 7° Does a Religious validly absolve seculars by delegation of the Bishop, but without the Superior knowing?

Resp. Negatively, if the Bishop intended only to give approbation, and otherwise the Superior is so unaware that he has not given jurisdiction; for then that Religious would have jurisdiction from no one. Affirmatively, however, if the Bishop, as is usually done, intended also to confer jurisdiction. See the following question.

Query 8° Does a Religious validly absolve, with the Superior unwilling, but by delegation of the Bishop?

Resp. 1° Negatively, if the Bishop intended only to give approbation, and otherwise the Superior, who has the power of constituting confessors, is so unwilling that he does not wish to give jurisdiction or removes the jurisdiction given. The reason is clear. For then the Religious has jurisdiction from no one.

Resp. 2° Affirmatively however, if the Bishop intended also to confer jurisdiction, as from present practice is usually done. The reason is that the Bishop can well confer jurisdiction on a Religious, no less than on a secular priest, over his own sheep. For whoever enjoys ordinary jurisdiction can delegate it to any priest. - Billuart, etc.

But that Religious would sin gravely against obedience, because in a grave matter he would transgress the precept of his Superior; nor in that case could he use the privileges which many Religious enjoy, e.g. for absolving from certain censures, unless privileges of this kind had also been communicated to him by the Bishop; because a Religious receives a privilege of this kind only through the Superior himself, who from the hypothesis grants no faculty to the subject.

These things are confirmed by a Declaration which very recently came forth from the Congregation of Bishops and Regulars. For the following doubts having been proposed:

"I. Whether a Religious not approved according to the laws of his own Order by his Superior, or with that Superior unwilling, validly hears the Confessions of seculars with only the faculty of the Ordinary."

"II. Whether Regular Superiors, having jurisdiction, can suspend their subjects from hearing the Confessions of seculars even from informed conscience."

"And, in the affirmative, III. Whether an orally announced suspension, and one announced without writing, is valid."

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

"And, in the negative, V. Whether one who attempts an absolution of this kind incurs irregularity."

"The Sacred Congregation of Bishops and Regulars, the matter having been discussed, on March 2, 1866, responded":

To I. Affirmatively.

To II. Affirmatively; yet so that the suspended Religious hears Confessions illicitly, but not invalidly.

To III. Affirmatively, since it is brought by way of a particular precept.

To IV. Affirmatively.

To V. It has been provided for in the preceding answers.

Query 9° Can Regulars absolve, without the Bishop's approbation, their servants or other domestics living in the monastery?

Resp. See n. 1194. II.

Query 10° Can Regulars absolve pupils living with them, without the Bishop's approbation, as being of the household?

Resp. A twofold opinion is given. See n. 1194. II.

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTION WITH RESPECT TO NUNS

n. ¶1398.

1398. - I say I. Nuns emitting solemn vows and cloistered cannot confess except to a priest specially approved for them by the Bishop, although they may be exempt from the jurisdiction of that same Bishop and subject to Regulars of their own Order; yet in that case the deputation and election of the confessor belongs to the regular Prelate. Thus from the Bull Inscrutabili of Gregory XV and from the Constitutions of the Supreme Pontiffs.

Indeed a confessor approved for one monastery cannot validly hear the Confessions of Nuns of another monastery, unless he was approved in general for Nuns. Clement X confirmed this in the year 1670, in the Bull Superna.

But from the Decree of the Sacred Congregation of Bishops, September 20, 1642, the ordinary confessor of Nuns cannot be approved except for a triennium; when this has elapsed, he cannot hear Confessions any longer in the same monastery without the license of the Sacred Congregation. - But a restriction of this kind is not observed everywhere, or even, on account of the lack of confessors who are suitable for hearing the Confessions of Nuns, it cannot be observed, and then the approbation is valid until it is revoked by words or by fact. - But with an Apostolic indult saved, or unless, as was just said, it cannot be done otherwise in some region, the confessor of Nuns ought to be forty years of age; nor are the Vicar General, a Canon or another beneficed cleric obliged to choir, a parish priest, if he is much impeded thereby in carrying out his office, or, if there is question of Nuns subject to the Bishop and of the ordinary confessor, a Regular, to be deputed to that office.

Let the confessor beware lest he conduct himself as Superior of the monastery, since such authority in no way belongs to him. - Thus the Sacred Congregation of Bishops, September 7, 1797. - See Analecta Juris Pontificii.

I say II. Bishops and other Superiors of Nuns are held two or three times a year, even for the Novices themselves, to present an extraordinary confessor. Thus Trent established. - These statutes were confirmed by other Supreme Pontiffs, especially Benedict XIV in the Bull Pastoralis, issued August 5, 1748. Moreover, a particular confessor must be granted to Nuns in the article of death, if they ask, indeed also sometimes in life, if some Nun asks this or refuses to confess to the ordinary; but then for only certain extraordinary occasions the confessor must be deputed. These things are clear from the Bull Pastoralis of Benedict XIV just cited. Nor indeed does Trent prohibit several extraordinary confessors from being placed in charge, or from being offered beyond two or three times. Therefore the sense of the Decree is that they must be granted at least two or three times.

n. ¶1399.

1399. Questions. - Query 1° Are all Nuns held to present themselves to the extraordinary confessor and to confess to him?

Resp. 1° All and each are held to present themselves at least to hear salutary warnings. This is clear from the same Bull of Benedict XIV, and also from an express Declaration of the Sacred Congregation of Bishops on October 19, 1621. But the reason for this disposition is that provision be made for the liberty of Nuns, who perhaps need the ministry of an extraordinary confessor; otherwise fear, or the displeasing of the ordinary confessor, or the falling into suspicion among the other Nuns, would easily prohibit them.

Resp. 2° They are not held to confess to the extraordinary confessor, but it suffices that they present themselves before him, for instance, that they ask his blessing, or receive salutary warnings from him. This is clear from the cited Bull of Benedict XIV. - See St. Alphonsus.

Query 2° What must be held concerning Nuns existing among us?

Resp. 1° As regards the approbation of the confessor, since, with those excepted about whom we spoke in n. 1205. V., the others are prohibited from emitting solemn vows, everything depends on the will of the Bishops. Therefore, unless the Bishop has signified the contrary, their Confessions are validly heard even without special deputation, and the clause: except Nuns, attached to jurisdiction, regards only Nuns strictly so called. But the mind of the Holy See is that even toward Nuns not strictly so called those things be observed by Bishops which are established by common law for those strictly so called in this matter. See Gury, Roman Edition 1873, and the Second Plenary Council of Baltimore.

Resp. 2° As regards the extraordinary confessor, there seems to be for the Bishop and other Superiors an obligation of procuring someone for Nuns among us living in cloister not Papal. The reason is that the end of the law is the same, namely, of providing for liberty of conscience. For if they are obliged to strict cloister, it is fair that they also use the privilege of cloistered Nuns.

Query 3° Is the Bishop held to grant an extraordinary confessor even to pious congregations of women, which are not truly Nuns?

Resp. Benedict XIV earnestly exhorts Bishops to extend to any communities of women the laws of Trent concerning extraordinary confessors of Nuns. - Constitution Pastoralis curae, August 5, 1748, with which several Decrees of the Sacred Congregation of Bishops and Regulars and the Second Plenary Council of Baltimore agree; indeed the Bishop is held to this in conscience, if those pious women have only one confessor designated by the Superiors, the faculty of calling another having been taken from them.

Query 4° Can cloistered Nuns be absolved by any confessor while by chance they are outside the monastery?

Resp. Affirm. with Lacroix and others. The reason is that the Constitutions Inscrutabili of Gregory XV and of other Supreme Pontiffs, which prohibit Nuns from confessing to another priest than one specially approved by the Bishop for Nuns, do not seem to be understood except of Nuns living in Monasteries; for they suppose that Nuns are always within the cloister. Therefore any confessors, although not approved for Nuns, can absolve Nuns coming to them by accident. Besides, a very great inconvenience would generally be present if travelling Nuns had to confess only to specially approved confessors; for often they would have to lack the Sacraments of Penance and Eucharist. The Response of the Sacred Congregation of Bishops and Regulars, August 27, 1852, agrees.

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, ARTICLE III: ON RESERVED CASES

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

The reservation of cases is a restriction or limitation of jurisdiction, or a denial of the power of absolving from certain sins, the power of absolving from the others being saved. We must treat 1° concerning reservation; 2° concerning the absolution of reserved things.

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, Art. III, § I, Or On The Principle And Nature Of Reservation

n. ¶1400.

1400. Principles. - I. There is given in the Church the power of reserving certain cases or causes of graver crimes, from which inferior confessors cannot absolve without a special faculty. For to the Church, as was said in n. 1392. q. 4°, belongs the power of conferring and limiting jurisdiction; therefore also of reserving cases. - Besides, this is clear from the definition of Trent.

II. The power of reserving sins belongs only to those who have jurisdiction in the internal forum and, today at least, also in the external. The reason is that it pertains to those alone who can confer jurisdiction over the society of the faithful to limit the same.

Hence: 1° the Pope can reserve cases in the whole Church; 2° Bishops in their own diocese; which reservation, according to the common opinion and the opinion truer to St. Alphonsus, is valid even as regards non-exempt Nuns, since they are not excepted in the law. Whether it is also valid as regards exempt Nuns in exempt matter is disputed probably on both sides; 3° others having episcopal jurisdiction, with respect to their own subjects.

III. Three things are required, from the custom of the Church, in order that a sin be considered reserved, namely, that it be 1° grave internally and externally; 2° consummated in its own species, and hence those favoring a homicide do not incur its reservation, since they have not consummated it, nor those committing imperfect sodomy incur the reservation of sodomy, since they have not consummated it in its own species; 3° so certain that no prudent doubt remains whether it has been perpetrated; whether it is internally and externally grave; whether it is consummated in its own species; whether it is comprehended under the reservation. The reason is that only external crimes are wont to be reserved, and indeed the graver and more atrocious; and hence it must be externally and internally grave - and because reservation, as being odious, is to be interpreted strictly, and hence it must be consummated in its own species and certain.

IV. Reservation affects the confessor immediately, and the penitent mediately; because it immediately touches the power of the confessor and restricts it.

Moreover, most episcopal cases are reserved simply, without censure; but papal cases almost all have censure, and are reserved principally on account of the censure, so that in them the censure is reserved immediately, and the sin itself mediately or accessorily. Hence in papal cases, when the censure is reserved, the sin also remains reserved; but, contrariwise, when the censure is removed, e.g. because it was unknown, neither is the sin reserved, because when the object of reservation is removed, i.e. the censure, the sin now does not remain reserved. - But the cases reserved to the Pope without censure are two: the first, namely concerning him who receives gifts from Regulars strictly so called of either sex (from the Constitutions of Clement VIII and Urban VIII. - See St. Alphonsus, H. A. Tr. XIII. 8. 9); the second, if someone wickedly, by himself or through others, denounces an innocent confessor concerning solicitation (from the Constitution of Benedict XIV).

Concerning reservation to be made by Bishops, those things opportunely occur which we have apud Benedict XIV, and of which this is nearly the sum:

a) Let it be extended only to a few cases, and

b) to only the more atrocious and graver crimes, whose reservation may contribute to retaining Christian discipline, and may yield to edification, not to destruction; lest otherwise, with the power of confessors restricted, an effect contrary to the pious mind of Holy Mother Church follow. Therefore let it not comprehend cases which, although they induce mortal sin, nevertheless turn upon things of small moment and are wont to occur frequently among the unlearned, such as cases of damage given and similar things. Hence also in reserving carnal sins much circumspection must be used, on account of the danger of scandals, especially among those persons on whom, on account of frequent return to the confessor, something of suspicion could fall.

c) Let it not be superfluous, and therefore let it not comprehend those cases which are specially reserved to the Holy See, nor those in which absolution is not conferred unless with restitution or execution of those things to which the penitent is held.

d) Let it not promiscuously, i.e. not except on account of frequent scandal or another necessary cause, be extended to those things to which by Law a major excommunication has been imposed, whose absolution is reserved to no one.

n. ¶1401.

1401. Questions. - Query 1° Does ignorance of reservation or of the censure to be incurred from it excuse?

Resp. 1° Affirmatively as regards censure, because in it the character of penalty is especially considered, which is inflicted only on the contumacious; and this whether the ignorance is of fact, e.g. that such a book was written by an apostate or heretic to defend heresy, or of law, i.e. of the censure or law, whether divine or ecclesiastical, provided however it is not gross; although even this excuses if in the decree of censure there is read: who shall have done this knowingly, or deliberately, or rashly, or who shall have presumed. Concerning this matter more broadly where there will be speech about Censures, n. 1664. q. 2°. q. 3°.

Resp. 2° As regards reservation, it is controverted. The more common opinion denies, to which St. Alphonsus subscribes; the reason is that reservation restricts the power of the confessor, whom it immediately affects, as was said in n. 1400. IV.; therefore whether the penitent had knowledge of the reservation or did not have it, the power of the priest remains restricted.

Query 2° Does ignorance at least excuse from reservation when it is joined with censure?

Resp. 1° Affirm. for papal cases, because papal cases, with the two excepted about which in n. 1400, are reserved on account of the censure, from which ignorance excuses, as was just said. Therefore, when the censure is removed, no reservation remains.

Resp. 2° More truly, Neg. for episcopal cases; because in these reservation is principally and per se considered, to which sometimes a censure is annexed as a circumstance, for this end, that sinners may be more deterred from sin. Nevertheless this must be understood concerning the cases which, not indeed Common Law, but Bishops themselves reserve to themselves.

Query 3° Can the subject of another diocese be absolved if the case is reserved only in the place of Confession?

Resp. Neg. according to the more common opinion and the opinion by far more probable to St. Alphonsus, because reservation immediately regards confessors. Sacred Penitentiary, November 21, 1873. (K) p. 408.

Query 4° Can the subject of another diocese be absolved when the sin is reserved in his own diocese, but not in the place of Confession?

Resp. 1° He can be absolved by Regulars by force of the privilege granted to them in the Constitution Superna of Clement X.

Resp. 2° As regards secular Confessors, the very common and truer opinion affirms. The reason is that the universal custom so has it. - Except in either case, unless someone from his own diocese has gone to another principally and solely in fraud of reservation.

Query 5° Can regular Prelates or Superiors reserve cases in their own Order or Monastery?

Resp. They can reserve only some determined by Clement VIII, which are eleven in number and can be seen apud St. Alphonsus. But they can in no way reserve others without the consent of the general Chapter for the whole Religion, and of the provincial Chapter for the whole Province.

Vol. II, TREATISE ON THE SACRAMENT …, PART THIRD: ON THE MINISTE…, APPENDIX II: ON JURISDICTI…, Art. III, § II. On The Absolution Of Reserved Things

n. ¶1402.

1402. Principles. - I. Those can absolve from reserved cases by ordinary power: 1° those reserving them themselves; 2° their successors in the same power; 3° their Superiors.

II. Bishops, or their delegates, can absolve:

1) Where Trent has been received, from hidden papal cases, except however those which are reserved to the Roman Pontiff in a special manner in the Constitution Apostolicae Sedis. This is clear from the Constitution itself, § Firmam tamen. See p. 361.

2) From papal cases, even notorious or public, all the faithful who on account of a legitimate impediment cannot approach the Apostolic See, lest from delay of absolution danger threaten souls. This is clear from Canon Law.

But absolution in this case is given directly, i.e. so that reservation ceases perpetually, if an impediment of this kind is perpetual. But the following are considered detained by a perpetual impediment: 1. Women, unless they are expressly noted by censure, as Nuns violating cloister. 2. Sexagenarians. 3. The sick with grave and rather long-lasting illness, such as quartan fever and the like. 4. Religious, even as regards censures incurred before entrance into Religion. For they can be absolved by their prelates or the delegate of these, except for enormous striking (n. 1753. q. 2°. R. 2°) of a Cleric. 5. The impubes, even if they ask absolution after attaining puberty. 6. Sons of a family. 7. Those condemned to perpetual prison. 8. Those bound by the care of feeding a family or administering its goods, or of bearing a public office which cannot be left without public detriment. 9. Those living collegially, such as soldiers, seminarians, etc. 10. The poor, who are not wandering beggars. 11. All others who cannot go to Rome without grave temporal or spiritual harm to themselves or their own. All these are considered perpetually impeded, unless a founded hope is present that within ten years, or according to others five years, they will be able to go easily to Rome; nor are they then held to approach Rome by letters or through a procurator. The same faculty, in the same circumstances, belongs to any confessor if the penitent is perpetually impeded from approaching the Bishop.

If the impediment is not perpetual, but long-lasting, i.e. at least for a half-year, the Bishop can absolve, with the burden on the penitent and with an oath given by him, in the internal forum a promise, of approaching the Pope or one having faculty from him, to receive his mandates, and this under penalty of reincidence (p. 316. col. 1. 3°). But if he cannot approach even the Bishop for a half-year, he will be able to be absolved by any confessor, with the burden as above.

3) The faculties of our Bishops, see p. LXXI. n. 15. 16.

III. Any Confessor, even a Regular, cannot absolve from cases properly episcopal unless he has received the faculty from the Bishop himself, even if he could absolve from any cases whatsoever reserved to the Pope. - Thus Clement X in the Bull Superna.

IV. There is no reservation in either the article or danger of death. Nevertheless it is required that he who is then in possession of himself: a) ask Absolution (but see n. 1672. q. 4°). b) Repair scandal (ib. q. 7°. q. 8°). c) First satisfy the injured party, unless this party could and wished to remit the reparation of injury, or refused a just one, or unless the one to be absolved was perpetually unable to satisfy; or, if he cannot do this then, furnish sufficient caution, or at least, if he cannot even furnish this then, swear that he will satisfy as soon as he can (ib. q. 9°). d) If censure, reserved to the Bishop or in a special manner to the Pope, is annexed to the reserved sin, from which a priest cannot absolve, he swear, in the internal forum promise, that he will present himself to a superior having the faculty, if he recovers; otherwise he falls again into the same censure. e) If there is question of a grave crime, before absolution he swear, in the internal forum promise, not to fall again.

n. ¶1403.

1403. Questions. - Query 1° Can a simple confessor sometimes absolve from reserved things, even outside the danger of death?

Resp. Affirm., if the Bishop or one having the faculty cannot easily be approached, and on the other hand there is present either 1° danger of infamy or scandal from the omission of the celebration of Mass or Communion, or 2° necessity of fulfilling the paschal precept, or 3° fear lest the penitent remain for a long time in mortal sin. Nevertheless, if the impediment is not long-lasting, that absolution can be given only ad effectum, i.e. so that, notwithstanding the reservation either of sin or of censure, which is afterward to be removed by the Superior, he can now be absolved, communicate, or celebrate. If it is long-lasting or perpetual, see n. 1402. II. 2). But if the penitent has no other mortal sins than reserved sins, and, as ordinarily happens, doubts concerning perfect contrition, he is held to accuse either some venial sin, or a mortal sin otherwise confessed, or even the reserved sin itself, if in this he is a recidivist, or in a proximate occasion of relapsing into it.

Query 2° How besides is reservation removed?

Resp. 1° It is removed indirectly, with the burden of supplying, if someone in good faith has made a valid Confession before one not having the faculty, provided he subjects another non-reserved sin to the keys.

Resp. 2° It is removed directly: a) Excepting a jubilee, through a Confession, even one null or even sacrilegious, yet made to one having the faculty, and in which the reserved sin is accused.

b) Through a valid Confession made to one having the faculty, although the penitent forgets the reserved case, yet inculpably. Thus St. Alphonsus as probable, except the case in which it is positively presumed that, if the one having the faculty had heard the sin, he would have deferred absolution.

c) Through the Confession of a doubtfully reserved sin made to one not having the faculty, even if afterward it is known as certainly reserved. Therefore in this case afterward he is not held to approach the Superior or one having the faculty.

Query 3° Is one having reserved and non-reserved sins held in Confession to accuse also the reserved sins?

Resp. Neg., probably, per se. The reason is that otherwise he would be held to confess those sins twice, namely to the inferior and to the Superior. I said: per se, or unless he is a recidivist in the reserved sin, or in a proximate occasion of relapsing into it, as was said above at q. 1°.

Query 4° Can an inferior absolve a dying person from reserved things when the Superior is present?

Resp. 1° Affirm., if the cases are purely reserved. The reason is that in the article of death there is no reservation.

Resp. 2° Neg. as regards things reserved by the Bishop with censure; because since the dying person, if he recovers, is held to approach the Superior as soon as possible, he is to be absolved by this one if he is present. (8) p. 393.

Query 5° Is the leave of the Superior required for absolving a dying person from cases with reserved censure, if it can be sought by letters or through a procurator?

Resp. Neg., according to the more common and more probable opinion, both on account of the danger of manifestation, and because anyone who cannot personally approach the Superior is considered legitimately impeded.

Query 6° Can the Superior absolve the penitent from reserved sins, and send him back to the inferior for absolution from the non-reserved?

Resp. This does not seem improbable in a case, certainly very rare, in which the Superior a) could not free himself from some very grave business, b) judged it necessary to hear the reserved sin personally, and c) the penitent was under a necessity of communicating and did not wish to confess the same sins twice.

Query 7° Can pilgrims be absolved from episcopal censures which they incurred in their own diocese?

Resp. Neg., if there is question of public censures or censures inflicted ab homine by a particular sentence. Otherwise affirm. Cf. however n. 1401. q. 4°. R. 2°. (19) p. 419.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 42 passages

Ch. I, Question I: Concerning the Power of Order

n. ¶3194.

St. Thomas, Supplement, q. 8, a. 1-3; q. 19, a. 3 and 4.

n. ¶3195.

I. State of the question. - Concerning the power of order many have not thought rightly:

n. ¶3196.

A. In this matter the following erred: 1) the Montanists, who held that only the pneumatici or spiritual men, that is, those who had received the Holy Spirit, could pardon sins, because Christ said: Receive the Holy Spirit; - 2) Abelard, thinking that the power had been conceded to the Apostles alone, not to successors, who was condemned in the Council of Sens, in the year 1140 (prop. 12); - 3) the Fraticelli, Waldensians, Wycliffites, and Hussites, who granted the power of absolving sins to good laymen, but denied it to wicked priests (cf. Council of Constance, aa. 20 and 22); - 4) Lutherans, who commonly hold that the power of remitting sins is reduced to the ministry of preaching and exhortation for exciting faith in the remission of sins, and that of itself, in a case of necessity, it belongs to all the faithful, even women (provided they believe themselves absolved); nevertheless, to avoid confusion, that it is not to be exercised except by those who have been deputed for this by the community. Other Protestants, except Episcopalians and Ritualists, deny every power of the keys; - 5) many liberal Protestants hold that in the first ages of the Church the power of the keys was exercised only by charismatic persons, that is, by those faithful who rejoiced in a special gift or charism: for the hierarchy was not instituted by Christ, but various charisms were distributed among the faithful by the Holy Spirit.

n. ¶3197.

B. Certain Catholics in the Middle Ages held that deacons or lower clerics were extraordinary ministers who, when priests were lacking, heard confessions and could contribute something toward absolution; - or even that in ancient times deacons were held as extraordinary ministers absolving: thus, for example, Morinus. Indeed a few said that, when priests and clerics were lacking, confession had to be made to laymen.

n. ¶3198.

II. Thesis. Only priests, by divine law, that is, bishops and presbyters, are ministers of sacramental confession, who can validly absolve; whence in them the power of order is required.

n. ¶3199.

This is of faith from the Council of Trent, sess. 14, c. 1 and 6, and can. 10, of which canon the first part is directed against Wycliffe, the other against Luther.

n. ¶3200.

The thesis is proved: 1) From the documents of revelation, by which it is established a) that the words of Christ: Whose sins you shall remit... were directed to the Apostles alone; besides, b) that the power was conceded as something to be exercised by way of judgment; but for there to be a judge there must be superior and inferiors; therefore this power was not conceded to all, namely to inferiors. But who in fact are the successors of the Apostles in this power, whether bishops alone, or also priests or others, must be determined from Tradition and from the use of the Church; by these it is established that from the first times generally that office was committed not only to bishops but also to presbyters, not however to others.

n. ¶3201.

This is already intimated from the first times: Ignatius, while constantly commending and commanding obedience to be shown to the bishop, and in particular not promising remission of sins to sinners unless they return to the assembled Church and to the consent of the bishop (ep. ad Philad., n. 3); Clement of Rome, while commanding the Corinthians not to remove those who have been constituted bishops (that is, presbyters) and have performed their office excellently; and that they themselves be subject to the presbyters, that they may receive correction unto penance, lest they be excluded from the flock of Christ (ep. ad Cor., c. 44 and 57). Moreover, from the third century this is expressly affirmed by: Callistus, claiming this power for himself; Tertullian, De Poenitentia, c. 9, and De Pudic., c. 18, n. 17 and 18; Cyprian, De Lapsis, c. 29, and ep. 17; Origen, in Levit., hom. 2, n. 4; in Num., hom. 10, c. 1; in Ps. XXXVII, hom. 1; Athanasius, in Fragm. ex l. c. Nov.; Ephrem, or. de sacerd.; Didascalia, c. 7; Basil, reg. brev., n. 228; Chrysostom, de Sacerd., l. 3, c. 5; Const. Apost., II, 16; Ambrose, de Poen., l. I, c. 2; Jerome, in Matth. XVI, 19; Augustine, serm. 351; Enchir., c. 65; Leo the Great, ep. 108, and ep. ad Theod.; Council of Carthage III, can. 32, etc. At the beginning, indeed, the power was reserved to the bishop, but presbyters sometimes exercised it from the commission of the bishop, as is clear from Cyprian, ep. 18; from Const. Ap. VIII, 47, 52; from the Councils of Hippo, Elvira, and Carthage III, and from the institution of the penitentiary presbyter. From the sixth century the use of approaching priests is general.

n. ¶3202.

Moreover it belonged to them to the exclusion of deacons, which is established both from the fact of silence concerning these and from the express testimony of Ambrose, de Poen., l. I, c. 2; Jerome, in Ier. XIII, 12; in Matt. XVI, 19; Augustine, de Civ. Dei, l. 20, c. 10; ep. 228 ad Hon., n. 8; serm. 82, n. 6 and 11; Innocent I, ep. 25 ad Dec., n. 3, and others.

n. ¶3203.

Also by reason from St. Thomas, q. 19, a. 4: No one can remit sin and confer grace except in the name of Christ as His instrument. But no one is an instrument unless he is chosen as minister. Therefore only ministers can remit sins.¹ But not bishops alone were to be chosen, but also priests, on account of the great necessity of this sacrament.

¹ From this principle St. Thomas concludes 1) that not saints, but priests, and 2) not only holy priests, but also evil priests are ministers of the sacrament. The first thus: "From this something is constituted a principal agent, that it has some form which it can pour into another; but from this it is not constituted an instrumental agent, but from this, that it is applied by the principal agent to inducing some effect... But man... cannot either give to another grace, by which sins are remitted, nor sufficiently merit it... And on account of this, however much someone may have of grace, he cannot attain to the effect of the keys, unless he is applied to this as minister by the receiving of order" (q. 19, a. 4). The second thus: "Just as participation in the form which is to be induced in the effect does not make the instrument, so neither does the removal of such a form take away the use of the instrument. And therefore since man acts only instrumentally in the use of the keys, however much he is deprived through sin of grace, by which grace remission of sins is made, nevertheless he is in no way deprived of the use of the keys." For "the gift of the Holy Spirit is required for the use of the keys, not as something without which it cannot be done (or for validity), but because without it it is done incongruously on the part of the one using them (or for liceity), although one subjecting himself to the keys obtains the effect of the keys" (a. 5, and ad 1). And therefore even in heretics, schismatics, and excommunicates there remains the power of the keys as to essence (power of order); but the use is impeded (for the most part) from defect of matter (power of jurisdiction). For since the use of the keys in the one using them requires prelation (or jurisdiction) with respect to him upon whom he uses them..., the proper matter upon which the use of the keys is exercised is a subject man. And because by the ordination of the Church one is subject to another, therefore also through prelates of the Church there can be withdrawn from someone he who was subject to him. Whence, since the Church deprives heretics, schismatics, and others of this kind by withdrawing subjects either simply, or as to something, as regards that of which they have been deprived, they cannot have the use of the keys" (a. 6).

n. ¶3204.

That priests, not deacons and lower ministers, should be chosen is most fitting, as the same St. Thomas shows, q. 8, a. 1:

n. ¶3205.

"The grace which is given in the sacrament descends from Christ the Head into the members. And therefore only he is minister of the sacraments in which grace is given who has ministry over the true Body of Christ, which belongs to the priest alone, who can consecrate the Eucharist. And therefore since in the sacrament of Penance grace is conferred, only a priest is minister of this sacrament; and therefore sacramental confession is to be made to him alone, which is customarily made to a minister of the Church."

n. ¶3206.

III. Observation. - In the thesis we said that only priests are ministers of sacramental confession. For confession before laymen, when a priest is lacking,

n. ¶3207.

was in use for greater shame and confusion,² as St. Thomas also reports, q. 8, a. 2, but it was not sacramental, as is established from the response to 1 and 3 and from article 3;

² Cf. concerning this Teetaert, La confession aux laiques dans l'Eglise latine depuis le VIIIe jusqu'au XIVe siecle.

n. ¶3208.

is satisfactory, if perfect contrition is present;

n. ¶3209.

is a sacramental by which attrition is excited unto the remission of venial sins, like striking the breast (cf. a. 3).

n. ¶3210.

IV. They object: From the history of the Church it is established that the power of hearing confessions or even of remitting sins, in the course of time, was acknowledged to have belonged to pneumatici, to certain confessors and martyrs, to deacons, indeed even to laymen.

n. ¶3211.

Resp.: 1) In the beginning of the Church the pneumatici were endowed with special charisms (I Cor. XII, 3-11; XIV, 2-40; Eph. IV, 11), but it is not read that to them was conceded the power of remitting sins. Tertullian alone asserts this, after having become a Montanist; but the assertion was universally rejected, even by his disciple St. Cyprian.

n. ¶3212.

Confessors and martyrs were endowed with the privilege of granting a letter of peace to delinquents in order to the remission of sins. But they did not hear confession nor absolve; they rejoiced only in the privilege of intercession, by which, in view of their confession, bishops admitted certain sinners to reconciliation. This is established from the letters of St. Cyprian, whose doctrine was approved not only by the African bishops, but also, when the see was vacant, by the Roman presbyters and deacons.

n. ¶3213.

Deacons, when a bishop and priest were lacking, admitted dying sinners to full reconciliation and peace with the Church, and to reception of Viaticum, whether they had already been absolved before, or had not yet been absolved; in which last case they surely supposed perfect contrition in them.

n. ¶3214.

But certain deacons exceeded the limits of their power; particular Councils prohibited this, as is established, for example, from the statutes of Odo, bishop of Paris (a. 1197), and from the Synod of Poitiers (a. 1280).

n. ¶3215.

Finally, laymen, in danger of death, when a priest was lacking, during the Middle Ages heard the confession of the dying, but did not absolve. Moreover the practice was held useful for greater humility and contrition and greater desire of confession; indeed even by great theologians it was said to be necessary, namely for proving the sincerity of contrition, insofar as a man at least ought to furnish what is on his part and do what is in him, by confessing as much as he can and by beginning due satisfaction through the shame of confession, so that thus he might become worthy of pardon from the desire of a priest and be disposed to perfect contrition. And then the highest priest, Christ, supplies the defect of a priest and grants remission.

n. ¶3216.

Nevertheless that confession was not held as truly sacramental, since they rather often say that it is to be repeated, for example St. Thomas, Supplement, q. 8, a. 2, ad 3; and nevertheless, because it was an imitation of sacramental confession and as it were a step toward it, it could even be called sacramental in a certain manner. "When necessity is imminent," says St. Thomas, ad 1, "the penitent ought to do what is on his part, namely, be contrite and confess to whom he can; and although this person cannot perfect the sacrament, so as to do what is on the part of the priest, namely absolution, nevertheless the highest priest supplies the defect of a priest. Nevertheless confession made to a layman because of the lack of a priest is sacramental in a certain manner, although it is not a perfect sacrament, because there is lacking to it what is on the part of the priest."

n. ¶3217.

V. Corollaries. - From the foregoing it follows:

n. ¶3218.

For an invalidly ordained priest the Church cannot supply the defect.

n. ¶3219.

A deacon cannot be deputed to absolve from sins in the sacrament of Penance.

n. ¶3220.

There is no obligation of confessing sins to others than to a priest.

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

n. ¶3221.

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

n. ¶3222.

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

n. ¶3223.

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

n. ¶3224.

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

n. ¶3225.

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

n. ¶3226.

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

n. ¶3227.

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

n. ¶3228.

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

n. ¶3229.

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

n. ¶3230.

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

n. ¶3231.

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

n. ¶3232.

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

n. ¶3233.

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

…and 2 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 126 passages

Vol. III, Special Moral Theology: On…, Treatise: On Penance, First Part: On the Sacrame…, Question One: On the Exist…, Article I: On the Existence of the Power of the Keys

S. Th., in Suppl., q. 17 and 18; q. 8, a. 1, ad 1.

420. Errors. - Concerning the power of the keys many have erred, whether they denied it, or unduly restricted it, or badly understood it, or rejected its divine origin.

A. In the first times of the Church, the Encratites denied the power of remitting sins committed after Baptism, holding these sins to be irremissible, since Christians ought to be perfect and to abstain from sin; others unduly restricted it, such as the Montanists, to whom Tertullian joined himself, positing three irremissible sins: adultery, idolatry, and homicide; Novatian said this of apostasy, but his disciples of all the graver sins, which are unto death.

B. The Protestants rejected the power of remitting sins, although several, such as Luther, hesitated whether for this reason they would deny that Penance is a sacrament. Yet this sacrament would not remit sin ex opere operato, for absolution would have only the power of exciting faith and of declaring the remission of sins, not of effecting it. But Calvin, whom many followed, denied that Penance is distinguished from Baptism, or from the memory of it. Baptism indeed excites faith that sins have been forgiven and the purpose of a new life; but when sin has again been committed, the memory of Baptism renews the excitation of that faith and the purpose of a new life. Anglicans, however, acknowledge that sinners can be absolved by priests and admit the usefulness of confession, but not its necessity; indeed Ritualists say that absolution is a sacrament, but place it among the lesser sacraments.

C. Liberal Protestants hold the charismatics alone as leaders of the primitive Church elected by the faithful. At the beginning, penance was merely disciplinary, not sacramental. God alone remitted sins; but the charismatics declared the will of God showing mercy, before penitents were received into the Church, which bishops could not do unless they were at the same time charismatics. Later, when the charisms disappeared, this devolved upon the bishops, who, once the hierarchy had been instituted, arrogated true power to themselves, and assumed the ministry of sanctification, to which a special value was acknowledged.¹ Whence it happened that the faithful desired that through them release from sin be obtained for themselves; from which there arose the custom of manifesting or confessing sins to them. This custom was first propagated among monks, then widely among the faithful, so that it was said that there is no remission of sins except through priests. Finally confession itself was here and there prescribed, indeed imposed upon the universal Church in the Fourth Lateran Council, in the year 1215.

¹ To this also pertains proposition 46 of certain modernists: "There was not present in the primitive Church the concept of a Christian sinner reconciled by the authority of the Church, but the Church only very slowly became accustomed to a concept of this kind. Indeed even after penance was acknowledged as an institution of the Church, it was not called by the name of sacrament, because it was held as a shameful sacrament." Likewise prop. 47: "The words of the Lord: Receive the Holy Spirit; whose sins you shall forgive, they are forgiven them, and whose sins you shall retain, they are retained, by no means refer to the sacrament of penance, whatever it pleased the Tridentine Fathers to assert."

Specifically, according to Lea,² Christ, who in the Gospel inculcates internal worship in spirit and truth, did not institute an external rite for remitting sins, but requires only love and penance of heart. Nor was a power of remitting sins by a sensible rite acknowledged in the first centuries, for the penitential discipline which was in force had the power of reconciling with the Church in the external forum, but not with God. For the Fathers, when they enumerate many means unto the remission of sins, do not commemorate priestly absolution among them. And the words themselves of absolution were nothing but prayers by which priests begged pardon from God, but in no way sacramental forms conferring grace and pardon.

² A History of Auricular Confession and Indulgences, 1896.

421. Thesis. Christ conferred upon the Church the power of remitting and retaining all sins committed after Baptism, namely, by a truly judicial act and in the manner of a forensic judgment. - This is of faith from the Council of Trent, sess. 14, confirming the doctrine of the Council of Florence.

It defined these three things:

In the Catholic Church all sins committed after Baptism can be remitted as often as the faithful fall into them (can. 1).

In it there is the power truly of remitting and retaining sins, and not only of preaching the Gospel or the remission of sins (can. 2).

This power is not the bare ministry of declaring that sins have been remitted, but is exercised through a judicial act, which requires the confession of the penitent (can. 3).

422. Catholic doctrine is proved from the Scriptures. - That there is in the Church a true power of remitting sins is established:

A. From the promise of the power of the keys, in which it is implicitly contained. The power is promised to Peter: "Thou art Peter, and upon this rock I will build my Church; and I will give to thee the keys of the kingdom of heaven, and whatsoever thou shalt bind upon earth shall be bound also in heaven, and whatsoever thou shalt loose upon earth shall be loosed also in heaven" (Matt. XVI, 18-19); but to the other apostles a similar participated power is promised: "Whatsoever you shall bind upon earth shall be bound also in heaven, and whatsoever you shall loose upon earth shall be loosed also in heaven" (Matt. XVIII, 18).

By these words there is promised:

1° To Peter, supreme power in order to the kingdom of heaven, which is the end of the Church, and consequently in order to governing the Church itself. For to hand over the keys of a house or city is a metaphorical expression signifying supreme power in the house or city, as is established from constant sacred and profane usage.1

2° To Peter and the apostles, a universal and unlimited power of binding and loosing whatsoever, i.e., of imposing or relaxing a moral bond, and indeed in such wise that when they bind or loose on earth, this is held ratified by God in heaven. But there is a threefold bond prohibiting from the kingdom of heaven: the bond of law, the bond of sin, and the bond of punishment. Therefore they can loose from this threefold bond, and consequently remit sin, which is the only bond directly removing one from heaven.

3° A power to be exercised in the Church, but not upon those who are outside; for it is promised to Peter in order to the Church to be built, and to the apostles in order to judging and punishing delinquents denounced to the Church, as is clear from the context (v. 17); therefore it is altogether distinguished from the power of baptizing. But the power will be perpetual: for it is promised to Peter as the foundation of the Church, which must always remain for the support of the building, and to the apostles as leaders of the Church; and therefore it will always remain in the Church.

Nor is it an obstacle that, according to the manner of speaking of the rabbis, to loose and to bind signify to declare licit or illicit, according as the more benign masters are said to loose from obligation, the more rigid to bind. For the words are to be understood according to the subject matter: whence if there is question of schools, in which there is not authoritative power but only declarative power, the sense is to declare licit or illicit; on the contrary, when the discussion is concerning the power of the keys or of ruling, and concerning true judgment and excommunication by which someone is authoritatively cast out from the Church, the context requires that they be understood of the true power of obliging or of loosing from obligation.

B. From the mission given to the Apostles of remitting and retaining sins (John XX, 21-23): Jesus "therefore said to them again: Peace be to you. As the Father has sent me, I also send you. When He had said this, He breathed on them, and said to them: Receive the Holy Spirit. Whose sins you shall forgive, they are forgiven them: and whose sins you shall retain, they are retained." By these words there is not handed down a mere faculty of preaching the remission of sins or of declaring that sins have been remitted to penitents, as Protestants contend, but an unlimited power truly of remitting all sins, not only as to punishment but as to guilt, and indeed to be exercised in a judicial manner. Whence it is altogether distinct from the power of remitting sins through the ministration of Baptism.

1° It is a power truly of remitting sins. For a) Christ hands on to the apostles a mission similar to that which He received from the Father, and which was not only of preaching the remission of sins but of truly dismissing and destroying them.³ - b) Whence by the sensible sign of breathing He imparts to them the Holy Spirit, by which He would manifest that a new and altogether singular power is handed over; such would not be a mission merely to announce the forgiveness of sins, which even the prophets did and which any one of the faithful can perform.⁴ - c) Hence He uses the active verb you shall forgive (aphete), which does not express some passive state to be declared, namely, that sins have been remitted, but indicates the positive action of effectively freeing from sins, as is established from biblical usage⁵ and from the verb to which it is opposed: you shall retain, which likewise requires a positive action. - d) But if in the second clause the words: they are forgiven them and they are retained, according to the Protestants themselves, are to be understood of the true remission or retention of sins, there can be no doubt that in the first clause they must be taken in the same sense. - e) Whence the remission made by the apostles is immediately efficacious, so that there is present the nexus of true causality between the pronouncement of remission by the apostles and the remission itself. For He does not say: Whose, i.e., whosever, sins you shall forgive, they will be forgiven them, but they are forgiven (apheontai), i.e., by that very fact they are remitted, just as those which you shall retain are retained. Therefore it is in no way a question of the preaching of remission, which does not have an immediate infallible effect, nor of the pronouncement of a remission already made, which would not depend on the apostles themselves remitting, but they on it.

³ Matt. I, 21; IX, 2-13; XVIII, 11; Luke V, 20, 32; VII, 47; XIX, 10; XXIV, 47; Apoc. I, 5.

⁴ Therefore it is not a question of fraternal correction, which proceeds from a private person and is made toward a private person, but of the public mission which Christ received from the Father, and which is conferred through the Holy Spirit, namely, through a supernatural charisma for carrying out a divine mission. And this also appears from the fact that the object of the mission is the remission of sins, which according to Matt. IX, 2-4 cannot be done except by divine power, and therefore requires a divine mission.

⁵ Matt. XVIII, 32, 35; Mark XI, 25; Luke VII, 47-49; XI, 4; Rom. IV, 7.

2° It is a power of remitting not only the punishment but the guilt itself of sin before God. For a) the expression aphienai tas hamartias signifies, and indeed constantly, the remission of guilt itself.⁶ - b) This is more manifest in the present case, since the mission of Christ itself is thus to be carried out and completed by the apostles; and He had come to take away the guilt itself of sin.⁷ - c) Whence the apostles, by remitting sins, act in the power of the Holy Spirit, whose proper work it is to cleanse from sin and to blot it out.

⁶ Matt. VI, 12, 14; IX, 5, 6; Mark II, 5, 10; Luke V, 20; VII, 47-49; XXIII, 34; Rom. IV, 5; VIII, 11; James II, 13.

⁷ Matt. I, 21; IX, 13; XVIII, 11; Mark II, 17; Luke V, 32; XIX, 10; Rom. V, 10, 18, 19.

3° The power is to be exercised by a judicial act in the manner of a forensic judgment. For a) the power is conferred as one and indivisible toward two contrary opposed terms, and therefore in its very exercise it needs to be determined toward one or the other through judgment. - b) For to retain (kratein, saisir, tenir) is more than not to remit, but is positively to preserve the bond of sin and to impede remission, so that it is not remitted nor can validly be remitted: it is to bind or oblige someone to appear again in judgment and in the meantime to remain subject, and to prescribe the conditions, works, and satisfactions required so that he may obtain remission. - c) But such a power, which is exercised in the name of Christ in so grave a matter, is not to be exercised arbitrarily at pleasure, but prudently and according to discretion; whence it prerequires judgment concerning the offenses committed by the sinner and concerning his dispositions, which per se cannot be had without his confession.

Therefore it is a power altogether diverse from the power of baptizing and of remitting sins through Baptism, both because it is not limited to that, since it appears to be exercised unlimitedly, toward whatever sinners; and because Baptism washes away sins, it does not formally remit them, whence the taking away of sins is attributed to the external washing and to the power of water and of the Holy Spirit; and because in Baptism a judicial act is not properly exercised, nor is there any power of retaining: for not to baptize is not positively to retain, but merely negatively to omit. But if it were not distinguished from the conferral of Baptism, there would be no power of remitting to be exercised upon the members of the body of the Church. - This is also clear from the interpretation of the Fathers.

423. Corollary. - From the foregoing it is established that the power of remitting sins was granted as unlimited, and that it extends itself to every kind of sin, as is manifest from the words "whose, i.e., whosever, sins you shall forgive," since they are said without restriction. But this is understood the more easily because it is only a part of the power of the keys of loosing whatsoever. Whence to Peter asking, Matt. XVIII, 21: "Lord, how often shall my brother sin against me, and I forgive him? Until seven times?" Jesus responded: "I do not say, until seven times, but until seventy times seven," i.e., always, just as the power of loosing which you will exercise in my name is indefinite.

They object very many things against this conclusion:

1° That sin against the Holy Spirit, according to Christ Himself, is irremissible, namely, it is not remitted either in this age or in the future (Matt. XII, 31; Mark III, 28; Luke XII, 10).

Resp. The sin against the Holy Spirit of which the Gospel speaks is that sin of the Pharisees by which, out of malice, they attributed to the devil the miraculous works of Christ, done by the power of the Holy Spirit so that men might be saved and drawn back from evil; and thus they maliciously contemned the means granted precisely by the Holy Spirit for converting men. Whence this sin includes a depraved disposition of pertinacity, which of itself is permanent, and while it remains it is an obstacle of positive resistance to the action of divine grace converting, and thus according to its own nature it excludes remission. For this reason it is remitted with the greatest difficulty, more rarely, and only as if miraculously, and it can truly be called morally irremissible; although it is not absolutely irremissible by reason of the omnipotence of God (q. 86, a. 1, ad 3; II-II, q. 14, a. 3).

2° The doctrine of the epistle to the Hebrews concerning apostates.

a) Of these it is said VI, 4: "For it is impossible for those who have once been enlightened (by Baptism), have also tasted the heavenly gift (the Holy Eucharist), and have been made partakers of the Holy Spirit (by Confirmation), and nevertheless have tasted the good word of God and the powers of the age to come, and have fallen away, to be renewed again unto penance."

Resp. It is not said that their sin cannot be remitted, nor that they cannot repent; but it is affirmed that they cannot be entirely renewed, as is done through Baptism, because that is unrepeatable, as Athanasius, ep. 4 to Serapion, 13, and Chrysostom in hom. 9 on this place, 3, interpret; or because the rudiments of faith which brought about the first conversion are insufficient for this, as certain moderns understand. - Others less well explain it of moral impossibility, in the same way as was said concerning sin against the Holy Spirit.

b) Likewise X, 26: "For if we sin voluntarily after having received the knowledge of the truth, there is now left no victim for sins, but a certain terrible expectation of judgment."

Resp. It is not said that apostates cannot be converted and repent, but that they, while they remain in apostasy, lack a victim for sins. For if they have departed ungrateful toward Christ immolated, there is not another victim to be immolated for them to redeem them anew. Namely, those who deny Christ have nothing by which they can be redeemed, as the Fathers understand: Athanasius, Ambrose, Chrysostom, Epiphanius.

3° The words of I John V, 16 concerning sin unto death: "He who knows his brother to sin a sin not unto death, let him ask, and life shall be given to him sinning not unto death. There is a sin unto death; for that I do not say that anyone should ask."

Resp. The sin unto death seems to be that of apostasy and infidelity by which the divinity of Christ is denied, from whom alone we have eternal life (v. 11-13); whence this sin is unto death. But it is not said to be irremissible; rather the apostle says that he does not ask that prayer be made for those who have committed it. Whence it is a sin which incurs public excommunication; but public prayers are not made for the excommunicated.

424. Catholic doctrine is proved from Tradition. - Penitential doctrine embraces three questions: a) whether in the primitive Church there was a power of remitting sins committed after Baptism, and whether it was held to have been instituted by God; - b) whether confession was necessary for the remission of sins, and whether it was public or private; - c) whether that power was exercised by way of absolution to be given by bishops or priests. The first question is concerning the existence of the sacrament of Penance, the second concerning sacramental confession, the third concerning the minister of Penance. In the present matter only the first comes to be considered.

Now there are not many monuments of the first and second centuries, and very few concerning Penance, both because there was great fervor in the primitive Church, and because they attended more to fundamental truths, and because they confessed more rarely, whether because they considered many mortal sins as venial, or because they deferred penance for a long time, since it was very rigorous and they were admitted to it only once. There is added that penance is rather a practical thing and to be done, than something to be believed and preached. Moreover, documents concerning Penance have also been lost, as, for example, the decree which seems to be attributed to Callistus, and which we know only from Tertullian, who attacks it.

And although testimonies are not yet found altogether explicit concerning the power of remitting sins specially given to bishops and priests for sins committed after Baptism, nor concerning the use of secret confession, nor concerning the obligation of confessing all mortal sins, and therefore perhaps these things cannot be directly proved with certainty by historical arguments to be of divine right, nevertheless indirectly they are certainly established from the doctrine of the Church of the following centuries, which is always infallible and unchanged in the same way. But from the beginning penance itself and the remission of sins are explicitly preached.

A. Writers from the beginning of the second century quite clearly establish that sins after Baptism can be blotted out through penance.

Thus Ignatius speaks of those who, led by penance, have returned to the unity of the Church (to the Philadelphians 3), and Irenaeus of heretics converted to the Church of God, who made exomologesis or penance (Against Heresies I, 13 and III, 3-4); Eusebius hands down other examples (H. E. V, 1 and 28), and Dionysius of Corinth says that all who have fallen, even heretics, if converted, are again to be received into communion (ibid. IV, 13); but Hermas, in the book The Shepherd, grants penance, necessary for remission, for all sins committed after Baptism, even for impurity, apostasy, and idolatry, yet only once, lest otherwise the faithful be led into sin. This last point after him Clement of Alexandria, Origen, Tertullian, Ambrose, and Augustine repeat. But Hermas describes penance in such a way that it is established that it is done under the direction of the Church.

Vol. I, Case LXIX: Outside Confessor: a Case from the Law of Regulars · Vol. II, Case LII: The Jurisdiction to Hear Confessions · Vol. III, Case XLIX: Jurisdiction

B. In the third century, Tertullian, in the book On Penance, presents penance as an ordinary remedy, to be granted once to those fallen after Baptism, even for graver sins, as very laborious: for it consists of confession, exomologesis1 or the public fulfillment of satisfactions, and reconciliation or absolution; that this is granted by the bishop we know from the later treatise On Modesty. Yet in this work Tertullian, having now become a Montanist, holds the graver sins to be irremissible, especially three: adultery or fornication, homicide, and apostasy or idolatry. Thus he seems to attack the pontiff Callistus, who at Rome had determined that one was to be absolved from adultery.2

…and 86 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 41 passages

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

n. 771.

I say 1°. The power of jurisdiction is necessary for validly receiving confessions, nor does the power of Order suffice. The reason is taken from the Council of Trent, sess. 14, chap. 7, where it reads thus: "Since therefore the nature and character of judgment require this, that sentence be passed only upon subjects, it has always been persuaded in the Church of God, and this Synod confirms it to be most true, that that absolution ought to be of no moment which a priest pronounces upon one over whom he does not have ordinary or subdelegated jurisdiction."

I say 2°. § 1. By ordinary jurisdiction for receiving confessions for the universal Church, besides the Roman Pontiff, the Cardinals of the Holy Roman Church possess it; for each one's own territory, the Ordinary of the place, and the pastor and others who are in the place of the pastor.

§ 2. With this same jurisdiction there are also endowed the canon penitentiary of a church, even collegiate, according to the norm of can. 401, § 1, and exempt religious Superiors for their subjects, according to the norm of the constitutions.

§ 3. This jurisdiction ceases by loss of office, according to the norm of can. 183, and, after a condemnatory or declaratory sentence, by excommunication, suspension from office, or interdict (Can. 873).

I say 3°. § 1. Delegated jurisdiction for receiving the confessions of any persons, whether seculars or religious, is conferred upon priests, both secular and religious, even exempt, by the Ordinary of the place in which the confessions are received; but religious priests should not use the same without the permission, at least presumed, of their Superior, with the prescription of can. 519, however, remaining firm.

§ 2. Ordinaries of places should not habitually concede jurisdiction for hearing confessions to religious who are not presented by their own Superior; but to those who are presented by their own Superior, they should not deny it without grave cause, with the prescription of can. 877, however, remaining firm (Can. 874).

n. 772.

From these things it is clear: for hearing the confessions of seculars, delegated jurisdiction is conferred by the Ordinary of the place of the accepted confession upon priests both secular and religious, even exempt. The same one confers the same jurisdiction upon the same persons for hearing the confessions of religious. But religious priests ought not use delegation without the permission, at least presumed, of the Superior; if nevertheless a religious approaches and is absolved, the confession is valid and licit according to the norm of Canon 519. But if some religion enjoys a privilege of absolving from certain cases reserved to the Supreme Pontiff, the manner in which it is communicated to individual confessors is to be learned from the Constitutions.

I say 4°. § 1. For validly hearing confessions there is need of jurisdiction expressly conceded by writing or words.

§ 2. Nothing can be exacted for the concession of jurisdiction (Can. 879).

Wherefore tacit jurisdiction no longer avails; but it must be conceded expressly, either by words or by writings.

I say 5°. § 1. Both Ordinaries of places should not concede jurisdiction, and religious Superiors should not concede jurisdiction or license of hearing confessions, except to those who have been found suitable by examination, unless there is question of a priest whose theological doctrine they have ascertained from another source.

§ 2. If after jurisdiction or license has been conceded they prudently doubt whether the priest previously approved by them still continues to be suitable, let them compel him to a new trial of doctrine, even if there is question of a pastor or canon penitentiary (Can. 877).

The law is indeed grave, which keeps away the unsuitable, and admits only the suitable to exercising this sacred ministry. The law concerning not conceding jurisdiction or license except to those who have been found suitable by examination strikes both Ordinaries of places and religious Superiors, unless the knowledge of these men has been ascertained by them from another source. It would indeed be a most grave sin to assign to this office a man not suitable; nor is this ever licit. Suitability must be established by examination, unless there is question of a man whose theological doctrine is known. When they do not have this sufficient theological doctrine ascertained from another source, they are bound under grave obligation to require an examination; if they have it ascertained from another source, they are not bound to require an examination, for concerning them there is not the law: let them not concede except to those who have been found suitable by examination, unless there is question of a priest whose theological doctrine they have ascertained from another source. Therefore the prohibition of conceding jurisdiction or license without examination does not seem to affect those who are known without examination to have sufficient theological knowledge.

But if prudent doubt is present concerning the continuation of the suitability of the confessor, Ordinaries and Superiors can, indeed ought, compel him to a new examination.

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.

n. 774.

On Jurisdiction in Religion

I say. § 1. In an exempt clerical religion, for receiving the confessions of the professed, novices, or others of whom in can. 514, § 1, delegated jurisdiction is conferred also by their own Superior, according to the norm of the constitutions; to whom it is lawful to concede it even to priests from the secular clergy or of another religion.

§ 2. In an exempt lay religion, the Superior proposes the confessor, who nevertheless must obtain jurisdiction from the Ordinary of the place in which the religious house is found (Can. 875).

n. 775.

You Will Resolve. Whence it follows that the Superior in an exempt clerical religion and the Ordinary of the place can concede power or delegated jurisdiction for hearing the confessions of the professed, novices, or others living in the religious house day and night by reason of service, education, hospitality, or infirm health.

Indeed it is lawful for the Superior to concede this jurisdiction even to priests from the secular clergy or of another religion. Therefore just as a confessor adorned with delegated jurisdiction by the Superior alone of his own exempt clerical religion can validly and licitly receive the confessions of his confreres or of others of whom above, so also a confessor enjoying delegated jurisdiction from the Ordinary of the place alone can hear the confessions of the same. Concerning such penitents the source of that jurisdiction is twofold, the Superior and the Ordinary of the place.

1°. If the Bishop, or your superior by delegation from him, concedes to you approval for a determined class of penitents, the faculty cannot be extended to others, as is clear. But if the request for the faculty from the Bishop or from the superior is general, and the concession has not been restricted when the tenor of the words is inspected, the faculty obtained is not limited to the work which was the occasion of the petition. The reason is taken from the known rule: Whatever is not excepted is contained in the concession. Nevertheless, except reserved cases, which by the law itself are never understood to be comprehended in the general faculty of hearing confessions.

2°. A religious Superior, when by delegation from the Bishop he employs a subject for the general works of the sacred ministry, with the hypothesis of some special restriction excluded, is considered to concede to him every kind of faculty for any penitents whatsoever, and also for all reserved cases contained in the episcopal concession. The reason is that he is considered to concede all that which he can and customarily does concede, according to the aforesaid rule: Whatever is not excepted is contained in the concession.

n. 776.

Questions

Question 1. Whether it is licit for the Ordinary of the place or the religious Superior to revoke or suspend jurisdiction or license?

Resp. § 1. The Ordinary of the place or religious Superior should not revoke or suspend jurisdiction or license for hearing confessions, except for a grave cause.

§ 2. But for grave causes the Ordinary can even forbid to a pastor or penitentiary the office of confessor, with recourse in devolutive effect to the Apostolic See remaining safe.

§ 3. Nevertheless it is not licit for the Bishop, without consulting the Apostolic See, if there is question of a formed house, to take away jurisdiction all at once from all confessors of some religious house (Can. 880).

n. 776, Q. 2.

Question 2. Whether a Regular once approved in some diocese needs a new approval if, after changing habitation, he returns to the same place?

Resp. Negatively, because one approved indefinitely and without limitation remains approved at least until an implicit revocation of approval; but in the present case no revocation has intervened, not even implicit. Therefore ... Cf. Lugo, disp. 21, n. 44. Lacroix, n. 1541.

Note, however, that among us it is established that many Bishops, as is gathered from Synods recently held, wish to revoke, and in fact do revoke, faculties conceded as soon as some priest departs from the diocese in such a way that he no longer has domicile there.

n. 776, Q. 3.

Question 3. Whether a Religious validly absolves seculars, when the superior is unaware or unwilling, from the delegation of the Bishop alone?

Resp. Affirmatively, because this delegated jurisdiction alone suffices for validly hearing confessions, though the Superior is unaware or even unwilling. - Cf. Can. 874. Nevertheless religious priests ought not use this faculty without the permission, at least presumed, of the Superior, with the prescription of Can. 519 remaining safe.

n. 776, Q. 4.

Question 4. Whether Regulars can absolve, without the approval of the Bishop, their servants or other familiars living in the monastery?

Resp. Affirmatively, by force of Canon 875, § 1, brought forward at n. 774.

n. 776, Q. 5.

Question 5. Whether Regulars can absolve resident pupils without the approval of the Bishop, as being of the family?

Resp. Affirmatively, by force of Canon 875, § 1, brought forward at n. 774.

n. 776, Q. 6.

Question 6. How many confessors are to be deputed in individual houses of a clerical religion?

Resp. § 1. In individual houses of a clerical religion, several confessors legitimately approved are to be deputed according to the number of members, with power, if there is question of an exempt religion, of absolving even from cases reserved in the religion.

§ 2. Religious Superiors having the power of hearing confessions can, with the things to be observed by law observed, hear the confessions of subjects who spontaneously and by their own motion ask this of them, but they should not do this by way of habit without grave cause.

§ 3. Let Superiors beware lest they induce any subject, either themselves by themselves or through another, by force, fear, troublesome persuasions, or another reason, to confess sins before them (Can. 518).

n. 776, Q. 7.

Question 7. Whether religious Superiors having the power of hearing confessions can hear the confessions of their subjects?

Resp. Affirmatively, in relation to subjects who spontaneously and by their own motion ask this of them, but without grave cause they should not do this by way of habit. But let Superiors beware lest they induce any subject, either themselves by themselves or through another, by force, fear, troublesome persuasions, or another reason, to confess sins before them. Cf. Can. 518, §§ 2, 3.

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

n. 776, Q. 8.

Question 8. Whether it is licit for a religious, even for quiet of conscience, to institute confession before any confessor approved by the Ordinary of the place, although not numbered among the designated?

Resp. Affirmatively, as is clearly apparent from the following canon:

With the constitutions remaining firm which command or advise confession to be made at stated times before determined confessors, if a religious, even exempt, for the quiet of his conscience approaches a confessor approved by the Ordinary of the place, although not numbered among the designated, the confession, any contrary privilege being revoked, is valid and licit; and the confessor can absolve the religious even from sins and censures reserved in the religion (Can. 519).

While the canon leaves the fullest liberty to religious, even exempt, it likewise leaves in place the constitution which commands or advises confession to be made before determined confessors, and it does not abrogate the use, approved by immemorial experience of centuries, of confessing to one stable and prudent confessor. The confession of which in the canon is valid and licit. And the confessor can absolve any religious, even exempt, from cases reserved in the religion.

n. 776, Q. 9.

Question 9. What has been established by law concerning confessors in lay religions of men?

Resp. Even in lay religions of men there is to be deputed, according to the norm of can. 874, § 1, 875, § 2, an ordinary and extraordinary confessor; and if a religious asks for some special confessor, let the Superior concede him, in no way inquiring into the reason for the petition, nor showing that he bears it with difficulty (Can. 528).

n. 776, Q. 10.

Question 10. Who designates the priest for sacred rites and approves him for sermons in lay religions?

Resp. A distinction is to be made according to Canon 529:

If there is question of non-exempt lay religions, it belongs to the Ordinary of the place to designate the priest for sacred rites and to approve him for sermons; if of exempt religions, the regular Superior designates the same priests, and the Ordinary supplies his negligence (Can. 529).

n. 777.

On the Confessions of Religious Women

I say. The new Code thus establishes the principle:

§ 1. With any contrary particular law or privilege revoked, priests both secular and religious, of whatever grade or office, need peculiar jurisdiction for validly and licitly receiving the confessions of any religious women and novices, with the prescription of can. 239, § 1, n. 1, 522, 523 remaining safe.

§ 2. This jurisdiction is conferred by the Ordinary of the place where the house of the religious women is situated, according to the norm of can. 525 (Can. 876).

From canons 239, § 1, n. 1; 522, 523 it is clear: Cardinals can hear their confessions everywhere. If some religious woman, for tranquility of conscience, confesses in any church or oratory, even semi-public, before a priest approved for hearing women, the confession is valid and licit; and the same is to be said when religious women are gravely ill, to whom it has been conceded to call in any priest approved for hearing the confessions of women. With these cases removed, for validly and licitly hearing the confessions of any religious women and novices whatsoever, the general power of hearing confessions of either sex does not suffice, but there is required peculiar jurisdiction conceded by the Ordinary of the place where the house of the religious women is situated.

n. 778.

Questions

Question 1. What is the law of the ordinary confessor according to the new Code for religious women?

Resp. It is contained in the two paragraphs of canon 520, and regards each house and any religious woman who asks for a special moderator of the soul.

§ 1. To individual houses of religious women let only one ordinary confessor be given, who receives the sacramental confessions of the whole community, unless on account of their great number or another just cause there is need of another or of several.

§ 2. If some religious woman, for the quiet of her soul and for greater progress in the way of God, asks for some special confessor or spiritual moderator, let the Ordinary easily concede him; he, however, should watch lest abuses creep in from this concession; but if they creep in, let him cautiously and prudently eliminate them, with liberty of conscience preserved (Can. 520).

For each religious community there should be one ordinary confessor, at least regularly; but just causes can require that there be several, such as the number of religious women or ignorance of language on the part of some. How grave this office is, how pleasing to God, is clear from the thing itself; and the more difficult it is, the more meritorious also. To God alone are known the immense fruits which the zeal of religious women in our country has brought forth; they themselves merit everything by which they may become holier. But besides the ordinary confessor of the community, another case, foreseen in some measure by Benedict XIV, is found in the present canon. "We were persuaded, and therefore we are persuaded, that not only to the whole community, but also to individual nuns, indulgence must be given in those things which are justly and reasonably sought, especially when those things are recognized to contribute to the quiet and security of their conscience." Thus he himself in Const. Pastoralis curae. Provision is made in the present case for such a religious woman. A special confessor is easily to be conceded, and although one must watch lest abuses creep in, they are nevertheless to be eliminated cautiously, with liberty of conscience preserved. In the whole legislation of the New Code, provision is made for the security of liberty of conscience.

n. 778, Q. 2.

Question 2. What is the law of the extraordinary confessor for communities of religious women?

Resp. § 1. To each community of religious women let there be given an extraordinary confessor who at least four times in the year approaches the religious house, and to whom all the religious women must present themselves, at least to receive a blessing (Can. 521).

An extraordinary confessor must be given to any community; this one should visit the religious house at least four times in the year; all must approach him, either to confess or to receive a blessing. Since the adverb at least is joined to the number four, that number designates the limit below which it is not licit for the extraordinary not to approach, above which it is licit for him to approach. Therefore he must approach at least four times, but it is licit for him to approach more often.

n. 778, Q. 3.

Question 3. Whether other confessors also are to be designated by Ordinaries of places for a community of religious women?

Resp. Affirmatively, as is clear from the following:

§ 2. Ordinaries of places in which communities of religious women exist should designate several priests for individual houses, to whom they may easily have recourse for the sacrament of penance in particular cases, without it being necessary to approach the Ordinary himself as often as this occurs (Can. 521).

The care of the Church in this can be seen, that those are to be designated to whom religious women can easily have recourse. In no way ought they approach the Ordinary as often as this occurs, but they themselves are to have recourse to the designated men with entirely every kind of liberty. Whence in the same canon it is prescribed:¹

§ 3. If some religious woman asks for one of these confessors, it is licit for no female Superior, neither by herself nor through others, neither directly nor indirectly, to inquire into the reason for the petition, to oppose the petition by words or deeds, or in any way to show that she bears it with difficulty (Can. 521).

¹ Cf. Addenda, p. 1113, n. 60.

n. 778, Q. 4.

Question 4. Whether it is licit for religious women to confess in any Church or oratory, even semi-public, before any confessor approved for women?

Resp. Affirmatively, any contrary privilege being revoked.

If, notwithstanding the prescription of can. 520, 521, some religious woman, for the tranquility of her conscience, approaches a confessor approved by the Ordinary of the place for women, the confession made in any church or oratory, even semi-public, is valid and licit, any contrary privilege being revoked; nor can the female Superior prohibit this or inquire about the matter, not even indirectly; and religious women are bound to report nothing to the female Superior (Can. 522).

Religious women traveling outside the house, or visiting the poor, or walking, for instance while they go from schools to the religious house, or for any other similar cause, can enter a Church or oratory, even semi-public, and confess to any confessor approved for women. Indeed the same is licit within the house in the same places.¹

¹ Cf. Addenda, p. 1095, n. 31; p. 1125, n. 82; p. 1150, n. 125.

n. 778, Q. 5.

Question 5. Whether it is licit for a gravely ill religious woman to call in any priest approved for women?

Resp. All religious women, when they are gravely ill, although danger of death is absent, can call in any priest approved for receiving the confessions of women, even if he is not destined for religious women, and can confess to him, during the continuance of the grave infirmity, as often as they wish; nor can the female Superior prohibit them either directly or indirectly (Can. 523).

Grave illness suffices that one can licitly use this faculty; it is not required that danger of death be present. She can call in any confessor approved for women. The faculty is conceded to be used during the infirmity as often as the religious woman wishes. It is gravely enjoined upon the female Superior that she not prohibit her directly or indirectly.

n. 778, Q. 6.

Question 6. What sort of men ought to be designated for the office of confessors of religious women?

Resp. Regularly it is required that they be forty years old, outstanding in integrity of morals and prudence; they can be taken from either clergy; for a just cause, those who are below the fortieth year of age can be deputed, provided they enjoy the other endowments; let them have no power in the external forum over them.

§ 1. To the office of both ordinary and extraordinary confessor of religious women, let priests be deputed, whether from the secular clergy or religious with the permission of Superiors, outstanding in integrity of morals and prudence; let them moreover be forty years old, unless a just cause, in the judgment of the Ordinary, demands otherwise; and let them have no power in the external forum over the same religious women (Can. 524).

n. 778, Q. 7.

Question 7. Whether an ordinary confessor of religious women, when his office has been completed, can be named extraordinary? or again deputed ordinary in the same community? whether an extraordinary can be named as ordinary?

Resp. § 2. An ordinary confessor cannot be named extraordinary, nor, except for the cases numbered in can. 526, again deputed ordinary in the same community, except after a year from the completed office; but an extraordinary can immediately be named as ordinary (Can. 524).

n. 778, Q. 8.

Question 8. What is prohibited to confessors of religious women, both ordinary and extraordinary?

Resp. It is prohibited to them to involve themselves in any way in the internal or external governance of the community. Cf. Can. 524, § 3.

n. 778, Q. 9.

Question 9. How long does the office of hearing the confessions of religious women last?

Resp. The ordinary confessor of religious women should not exercise his office beyond three years; nevertheless the Ordinary can confirm him for a second, indeed even for a third three-year term, if either on account of a scarcity of priests suitable for this office he cannot provide otherwise, or the greater part of the religious women, including also those who in other affairs do not have the right of casting a vote, by secret votes, has agreed to the confirmation of the same confessor; nevertheless, for those dissenting, if they wish, provision must be made otherwise (Can. 526).

n. 778, Q. 10.

Question 10. Whether the Ordinary of the place can remove the confessor of religious women?

Resp. The Ordinary of the place, according to the norm of can. 880, can, for a grave cause, remove a confessor of religious women, both ordinary and extraordinary, even if the monastery is subject to regulars and the priest himself from confessions is a regular, nor is he bound to signify the cause of the removal to anyone, except the Apostolic See, if it is required by it; but concerning the removal he must warn the regular Superior, if the nuns are subject to regulars (Can. 527).

n. 778, Q. 11.

Question 11. Who concedes the faculty of hearing the confessions of religious women?

Resp. If the house of religious women is immediately subject to the Apostolic See or to the Ordinary of the place, the latter chooses the priests for confessions, both ordinary and extraordinary; if to a regular Superior, the latter presents confessors to the Ordinary, to whom it belongs to approve the same for hearing the confessions of those nuns, and, if there is need, to supply the negligence of the Superior (Can. 525).

…and 1 more passage — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 118 passages

Vol. I, Case LXIX: Outside Confessor: a Case from the Law of Regulars

Applied correction from Woywod's opening insert: CASE LXIX is solved with certainty by Canon 519 of the Code. It states: "If a religious even of an exempt Order for the sake of peace of conscience makes his confession to a priest approved by the bishop of the diocese where the confession is made, though such priest be not appointed by the superior of the Order for the confessions of the religious, the confession is valid and licit. All contrary privileges of Orders are hereby revoked."

Father F., a religious, has had the misfortune to fall grievously, and the sin committed is, moreover, a reserved one in his Order. He is greatly ashamed of it, and can not get himself to confess his sin either to his ordinary confessor, or to any other in the Order, although according to the constitution of the Order, he is bound to do so. He finally goes to a certain secular priest in whom he has special confidence on account of his venerable age, and is absolved. Subsequently, however, he is frequently troubled with scruples about the validity of his Confession to the secular confessor.

n. ¶3.

Questions: 1. Are there cases in which a religious may confess to a priest not of his own Order?

n. ¶4.

If so, can such confessor absolve in a case reserved by the Order?

n. ¶5.

Are the doubts of Father F. well founded or not?

n. ¶6.

Ad i. Although according to the papal constitution the (exempt) regulars in general may only confess to their superiors, or to those priests of the Order authorized by them, still there are cases in which a religious may make his Confession to an outside priest, a regular of another Order or a secular priest. Apart from a special privilege, which may be given to members of an Order to confess outside the monastery, even to a secular, there is a distinct instance given in the decree of Clement IV, Virtute conspicuos, and in a later almost identical decree of Boniface VIII, which allows a regular in some cases to seek a confessor outside, namely in necessitate articulo. Now what is meant by necessitatis articulo?

n. ¶7.

Piatus Mont. briefly answers this question as follows: Some require for this an extreme necessity, such as the moment of death. Others add to this case the case of prolonged residence among unbelievers, where there are no other brethren of our Order. Others, finally, extend this case to the necessity of avoiding scandal, or of preventing the penitent’s spiritual ruin, or of providing for his salvation. ( Praelectiones Juris Regularis, ed. II. tom. I. p. IV. c. I, a. 2, qu. 1.)

n. ¶8.

A religious away from his monastery ex causa rationabili et cum licentia Praelati, or on a journey, may, in the event of not finding a suitable religious, go to Confession to any non-regular. Whether in such case the confessor thus chosen must be approved or not, is a mooted question. Authorities, such as Saint Alphonsus (l. VI. n. 575), Lehmkuhl (tom. II. n. 394), Ballerini and others, deny this, while Piatus for important reasons advocates the approbation, by remarking in his Praelectiones J. R. (pag. 416, qu. 12): Others, however,... require that the priest chosen be approved. For jurisdiction in this case is conferred upon the confessor neither by the regular prelate nor by the Roman Pontiff. Not by the regular prelate, since a regular superior cannot, even within the Order, appoint anyone unless he is suitable and has been found such by examination. Nor by the Supreme Pontiff, because in privileges the Roman Pontiffs always require that a suitable confessor be chosen. Now no one can be considered suitable unless he has been approved by his superior, and quotes further proof of his contention, especially a decision of the S. Congr. Episc. et Regularium, according to which the religious of an Order are allowed, by consent of their superiors, to confess to a "sacerdos extraneus" “provided that he has been approved by the Bishop,” if the constitution and statutes of the Order do not oppose it. Our canonist will have this applied to secular confessors, while according to the sententia communissima for a regular confessor approbation of his own superior should suffice (Op. cit. pag. 417 qu. 13). How does this concern our unfortunate Father F.? Was he privileged, although not away from the monastery, and in spite of a copia confessarii, to go to a confessarius extraneus without fearing that such Confession would be invalid? We believe we can answer this in the affirmative for the following reasons: Let us place ourselves in the position of Father F. He has committed so grievous an offense that for very shame he can not make up his mind to reveal his sin to a confessor who is his colleague, whom he must often meet, with whom he daily associates. Although P. Albertus a Bulsano O. C. teaches in his "Expositio Regulae F. F. Minorem" (ed. nov. pag. 385): Care must be taken that no one go out fraudulently to wash away before another Confessor sins which he blushes to confess to a Confessor of his own order; for, according to the common maxim, fraud and deceit ought to protect no one^*, yet we must well discriminate here between the shame that is naturally allied to the confession of a simple peccatum grave, and which does by no means of itself justify a religious in seeking, against the papal regulations and the constitution of his Order, an outside confessor, and the mortification that a peccatum, unusual for the standing of the penitent, especially in a certain materia, brings with it, and which in a religious may be so great, that it would be asking of him something akin to heroism, to confess such case, under conditions which according to the rules of his Order are joined to an acknowledgment of such character.

^* “He, however, who will shortly undertake a journey for the sake of preaching or some other business may wait so as to make his confession before an outsider.”—(Piatus, op. cit. pag. 419, qu. 15.)

n. ¶9.

This would, of course, correspond well to the humility of which every religious should be possessed and would also conform to the saying of St. Augustine: "If not ashamed to commit the sin, then be not ashamed to confess it!" All this is very proper and true. But if, nevertheless, our religious can not bring himself to confess his sin to his proper confessor, what then? Is there really no expedient that permits him to take refuge with a confessor outside of his Order?

n. ¶10.

Perhaps there is a way out of the difficulty and we believe we have actually found it in the cases previously cited by the canonist as articulus necessitatis, among which there is denoted: the necessitas impediendi ruinam poenitentis spiritualem vel consulendi ejusdem saluti. Father F., as already stated, could not get himself to confess his sin to a Poenitentiarius of his Order. The danger to his soul's salvation in this condition is incalculable, even aside from the sacrilege of which he may become guilty, if he remains much longer in this sad state. It is not necessary to prove further that the articulus necessitatis, in the decree of Boniface VIII, may without question be applied to this case of our religious.

n. ¶11.

Moreover, what else is the papal regulation and the constitution of the Order, which place our Father F. in such difficulties, but a lex humana? It is, however, a well-known and universally accepted principle, that the obligation of such a law, at least when it is affirmative, in general ceases in case of a grave incommodum, or damnum, i. e., damni gravis periculum. (Lehmk. Theol. Mor. I. n. 155.) Inasmuch as our case deals with a damnum spirituale, this principle governs all the more.

n. ¶12.

It is to be considered, too, that the actual aim of this papal regulation and constitution of the Order, is the bonum of the Order, as also that of the individual member. A confessarius extraneus is not so well qualified to be teacher, judge and corrector, as the religious confessor himself who possesses the necessary knowledge of the rules, constitutions and obligations of the Order, which the former has not, at least not so thoroughly as the latter. Now as Father F. in his present sad state, had most need of just such a confessor, the above regulation would really serve his bonum. But as it is impossible for him to resolve to obey the same, for the reasons stated, then hie et nunc this rule is no longer for him a bonum but rather a periculum gravis damni and an offendiculum salutis, which is certainly very far from the intention of the law-givers. The finis or causa motiva, of this regulation, so salutary in itself for the religious, is therefore removed in the case before us, and for this reason, at least in hoc casu, the legal principle may be applied: Cessante legis ratione cessat quoque ejus dispositio. In other words: Father F. could, on this principle and for the stated reasons, confidently seek a priest outside his Order, at least in this case, to reveal the sad state of his conscience. But now arises the question: Did he require the permission of his superior to this end?

n. ¶13.

In general a regular does not require the special permission of his superior to confess to a priest not belonging to his, or to any Order, except this is expressly provided by the constitution, or statutes, of the Order, as of course in all cases concerning Confession of regulars, in or outside the order, not only the papal regulations, but also the constitution or statutes of the Order must be considered if the regular does not wish to run the danger of confessing invalidly. Generally the silent permission conveyed in the concession for a stay outside the monastery is sufficient. A mere licentia praesumpta however as advocated for instance by Bonagratia ("Morales Commentarii," pag. 381), does not seem quite admissible, as from such a laxness in the observance of the strict papal regulation that the regular should only confess to a regular^* may easily result.

^* It is, of course, another matter, if a religious dwells away from the Monastery. In such a case he may on the strength of this dispensation, confess to a non-regular, and for this the sola devotio suffices according to the almost universal practice of our times, always provided that no restrictions are made by the constitution of the Order or the Superior.

n. ¶14.

In the case before us our religious is privileged by the decrees of Clement IV, and of Boniface VIII, to confess to a sacerdos extraneus, as he finds himself in necessitatis articulo, and this undoubtedly in the sense of the stated decrees. Whether, however, in some way or other a permission on the part of the superior should be required, we shall not decide. In praxi we should advise Father F., in order to be quite sure about the confession, to seek first the permission of his superior. A prudent and sensible superior will, at least, for single cases, grant such permission willingly and promptly, without going into the matter more closely. Should he, however, cause the petitioner undue difficulties in regard to this permission or if the obtaining of the permission is so obnoxious for the religious that it must be regarded, according to moral principles, as really causing him an incommodum grave, then he would be justified even without the expressed approval of his superior, to betake himself to a confessor outside the Order ex jure divino, by virtue of which every Christian is enjoined to confess mortal sins before receiving the Holy Eucharist, or before celebrating Holy Mass. (Conc. Trid. Sess. XIII, c. 7 et can. XI, De SS. Eucharistiae Sacramento.) In such case this special confessor would have jurisdiction from the Popes or the supreme superiors of religious, they having declared that every religious in necessitatis casu may be absolved by an outside priest.^* Ad 2. Since the facultas a reservatis Ordinis absolvendi is possessed only by the superiors, and the Poenitentiarii authorized by them, it is evident that a confessor not belonging to the Order can not absolve from the same, unless he has previously received the necessary delegation. The latter, however, need only be a silent one, and is already included in the permission to confess to a Confessarius extraneus, ex justa et rationabili causa, and the latter can either directly or indirectly absolve from the reserved offenses according as (here again) the constitution or the custom of the Order, or the special regulations of the superior permit. How does this apply to our case? Father F. has rendered himself guilty not only of grievous sin, but of a sin reserved in his Order. Could the secular priest to whom he went to Confession absolve him also from this reserved case? After all that has been said upon this subject the answer to this question can not be doubtful. This confessor could, no doubt, absolve the penitent religious, and that directly if he has asked his superior's permission for this Confession, even if the constitution of the Order to which the regular belongs should not permit such absolution, and this holds good without doubt likewise if the religious should not have obtained an expressa superioris licentia, because it would have been for him a too difficult incommodum. The power to absolve directly from the Order's reserved case would in this case, just as in the other, be delegated to the Confessarius extraneus a Summo Pontifice as the supremus Superior Ordinis, as one could not reasonably suppose that the facultas ab Ordinis reservatis absolvendi remains reserved for the superiors and the Poenitentiarii Ordinis even then if the reservation quoad Poenitentem not only not attains its good and salutary aim, but rather is for him in destructionem or in periculum gravis damni, as the case is here, if it is made impossible for our unfortunate religious to confess his peccatum reservatum anywhere else except in the monastery. Our Father F., so as to be quite certain about the absolution a reservato, should, however, go to an approved priest. The reason for this has already been explained in our discussion ad 1. That the penitent should draw the confessor's attention to the circumstance of the reservation need not be further explained.

^* Piatus defends this view, at least in the case when a religious, in casu necessitatis, is by his Superior, without sufficient reason, refused permission to confess extra Ordinem. This view is no doubt proper, also when a regular goes to a confessarius extraneus without the approval of his Superior, because to obtain such would be such a grave incommodum for him, that according to moral principles he could not be obliged to do so, or because the Superior himself joined to his permission such burdensome conditions (as for instance, requiring the petitioner to state the exact reason for the request which would amount to a confession outside the confession) so that in the end the religious would have to confess outside, without permission of his Superior.

n. ¶15.

Ad 3. Our argument has already answered this question. Father F. need not trouble himself and he may say Holy Mass without fear or doubt about the validity of the absolution.

Vol. II, Case LII: The Jurisdiction to Hear Confessions

Caius, an alumnus, is sent from his seminary to a parish not far away to assist on a feast day. It being Paschal time, Caius received from the bishop jurisdiction to hear confessions, but explicitly for this day only. Caius therefore heard confessions, held services and made ready to return to the seminary. But suddenly the parish priest is taken ill, and he asks the alumnus to remain another day, because on that day also will people come to confession. Caius objects that he has jurisdiction only for this one day, but the parish priest says: “I will give you jurisdiction. I have iurisdictio ordinaria and can therefore delegate you, the same as I could for assistance at marriage. Of course I can only delegate you for my

‘ parishioners, not for the diocese as the bishop can. You will have potestas ordinis through Holy Orders and iurisdictio delegata from me.” This argument does not quite convince Caius, for if that were so, he thinks, for what purpose did the bishop restrict his jurisdiction just to this particular day? Yet, he satisfies his conscience by reasoning: This is a case of necessity, and if the bishop knew of it he would most certainly give me jurisdiction; I may then rightly é presume the jurisdiction.

n. ¶3.

In the worst case—he reasons further—there prevails error communis so that the Church supplies the jurisdiction if absent. He remains, hears confessions the following day, and returns to his seminary.

n. ¶4.

Questions —I. What is to be thought of the parish priest’s argument, and what of the arguments of Caius?

n. ¶5.

II. Were the absolutions given by Caius valid or not?

n. ¶6.

In order that the absolution in the Sacrament of Penance should be valid, there are necessary for the priest hearing confession, besides potestas ordinis, also approbatio and iurisdictio, The approbatio is the authoritative declaration that the priest in question is capable, scientifically and morally, of hearing confessions, the iurisdictio is here the bestowal of the faculty to render decisions pro foro interno.

n. ¶7.

That approbatio as well as iurisdictio are necessary is evident from the Tridentine (Sess. 14, cap. 7, and sess. 23 de ref. cap. 15), iurisdictio is necessary iure divino, approbatio however iure ecclesiastico, as the latter was first introduced by the Tridentine. Although frequently both are given to the priest uno eodemque actu, yet it is necessary in many cases that approbatio and iurisdictio should be precisely distinguished. Naturally approbation precedes jurisdiction, - for only to the priest declared capable are assigned certain faithful as subditi, over whom he is to exercise jurisdiction. Presuming as known the terms iurisdictio ordinaria and delegata we will pass on to answer the questions.

n. ¶8.

Ad. I. The parish priest’s argument is not valid. Of course he himself has iurisdictio ordinaria and can, if nothing prevents, delegate another priest, for instance to perform marriage. But for hearing confession there is not merely iurisdictio necessary, but also approbatio, and the latter per Episcopum loci.

n. ¶9.

Caius had received approbatio and iurisdictio uno actu from the bishop, but only for one day, for the second day both were lacking to him. The parish priest could not give jurisdiction to Caius because the approbation which the Tridentine requires was lacking. Previous to the Tridentine the matter would have been different. The matter is stated by LEHMKUHL (II, n. 371) as follows: Although by the nature of the matter anyone who possesses ordinary power can communicate it to another, nevertheless by the supreme ecclesiastical authority, upon which every exercise and validity of jurisdiction ultimately depends, it has been established that no one may exercise delegated jurisdiction in the sacred tribunal of penance—at least as regards the confessions of secular persons—unless he has received approval from the bishop of the place. Hence it has come about that delegation given or to be given by those who are inferior to the bishop has become almost useless.

n. ¶10.

Since the approbatio per Episcopum loci is always necessary, a parish priest can not delegate a priest, who has approbation and jurisdiction in another diocese, to hear confessions. Exempt from this law are only the parish priests themselves (and a fortiori the bishops) in regard to their subditi, so that they can hear their parishioners’ confessions also in another diocese without approbatio per ordinarium loci, because the Tridentine itself excepts from this law those in possession of a parish benefice.

n. ¶11.

Now let us pass to Caius’ views. He believed he could with perfect right presume the iurisdictio. But—and this is taught unanimously—the approbatio and iurisdictio can not be presumed. For the validity of the absolution the Tridentine requires an approbatio actu existens and hence an approbatio praesumta suffices not at all, no matter how probable or certain it may seem that the bishop would grant it. “The approval required for a valid confession must truly have been given (and made known to the confessor); the presumption that approval will be given does not suffice” (LEHMKUHL, II, n. 384, 4). If a priest therefore desires an extension of his jurisdiction from the bishop, he must not, no matter how certain it may be that the bishop will grant the extension, hear confessions before receiving positive information (written or by reliable messenger) that the jurisdiction has been prolonged.

n. ¶12.

Perhaps in Caius’ favor is his last argument, that there is an error communis and that therefore the Church supplies the defect. The question is, when does the Church supply the lacking jurisdiction? Theologians give a unanimous answer to this: The Church supplies if an apparent title and common error are present, but both must be present at the same time. The titulus coloratus is present if, though the exterior act through which jurisdiction is bestowed, has taken place, it is invalid on account of a secret fault, for instance if exteriorly a parish were quite lawfully assigned to a priest, but the entire act were invalid on account of secret simony. If the jurisdiction has not been given at all, or if, though given validly, it has already expired, yet the people suppose the priest has jurisdiction, then there is present titulus putativus, together with error communis. It is plain that in our case Caius had no titulus coloratus, but only putativus, i. e., there is present therefore error communis sine titulo colorato.

n. ¶13.

For this case the theologians hold: If a putative title and common error are present, it is not certain whether the Church supplies. LEHMKUHL writes thus: “If only common error is present without an apparent title, many indeed think that the Church still supplies on account of the common good, for which public authority ought especially to provide; but since we have no ecclesiastical law that perhaps establishes this, nor is there a consensus of the Doctors, the entire matter remains doubtful.”

n. ¶14.

Ad. II. From the aforesaid there follows the answer to the second question and this answer is: It is not quite certain that the absolutions given by Caius on the second day were valid. For, although Sasetti, S.J., says (Compendium Theol. Mor., n. 773): “Probably the Church also supplies if common error is present without an apparent title, but with a merely supposed (= putative) title. For the same reason presses as in the preceding case, since even under this supposition countless souls could perish. Thus many weighty theologians cited by St. Alphonsus, n. 572; and although A. ESCHBACH (Anal. Eccl., 1897, p. 505) writes: “But now the more probable opinion holds that the Church supplies if common error is present, even without an apparent title. Moreover, we are dealing with a favorable matter in which extension is granted,” by all this we do not get beyond the probabilitas, and where a Sacrament is concerned, probabilitas is of little use to us (extreme cases of necessity excepted), what we need is certitudo.

n. ¶15.

What is to be said of Caius’ action? Objectively he has committed a grievous fault. It is not even allowed to hear confessions, though titulus coloratus and error communis are present and the Church therefore surely supplies the defect, when one knows he has no jurisdiction, but only a titulus coloratus. Even more unlawful is it if only error communis is present, when it is not certain that the Church supplements. “All the more is it not lawful for one who knows himself deprived of all power and title to it to act because of common error alone, both because he usurps a power which he does not possess and because he exposes to danger and harm those for whom it matters that his act be valid” (LEHMKUHL). To what extent Caius was at fault subjectively, we are unable to determine, but it must be admitted that he took the matter too lightly.

n. ¶16.

The claim will hardly be made that there was a probabilitas of valid absolutions, and that cum iurisdictione probabili one could lawfully absolve. The answer to this would be: In our case there was not only iurisdictio probabilis absent but there was nulla iurisdictio, probable it is only that the Church supplied the defect.

n. ¶17.

Finally, the question suggests itself, what was to be done after Caius discovered his error? Were the people to be informed that they were only apparently absolved, and that they were obliged to procure certain absolution? This question is by BERARDI (Praxis Confess., n. 1053, IX) answered thus: “There exists no obligation in general to compel the faithful to repeat confessions made bona fide”; ‘ and in support BERARDI refers to the decision by the Congr. Concilii, of December 11, 1683. The matter is to be left at rest; in the worst case the faithful will have these sins indirectly remitted in their next confession. It would be different if the faithful themselves found out that these confessions were of doubtful validity. Some theologians are of the opinion that even in this case the faithful need not be required to repeat their confessions, but the decision quoted by BERARDI says: If those who confessed should themselves learn this or should doubt the invalidity of the confession, they are bound to repeat the confession.

n. ¶18.

Ignaz Rieder, D.D.

Vol. III, Case XLIX: Jurisdiction

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