Supplied Jurisdiction

344. Declarations. 1. The jurisdiction which the Church supplies is defined as the jurisdiction which the Church supplies extraordinarily, for the common good, in the act itself.¹

a. Therefore the jurisdiction which the Church supplies is delegated jurisdiction from the Church or from the supreme pontiff; but it differs from jurisdiction either ordinary or ordinarily delegated in this, that the latter is present already before confession and, when confession has been completed, remains habitually; but the former is granted only in the very act of confession, so that this can be validly completed, and when absolution has been granted, it is again extinguished.

b. Where the Church is said to supply a defect, one must attend to two things: whether she herself can supply the defect and whether she wills to supply the same. For the Church cannot supply all defects in a sacramental matter, e.g., in the matter or form, but only defects of power which depends on her. But neither in all cases in which she can supply does the Church in fact also supply, but only in those in which she has manifested the will of supplying, either expressly or tacitly.

2. There are three cases in which the Church in fact supplies jurisdiction: a. in danger of death; b. in common error; c. in the case of probable jurisdiction. In these cases, however, she supplies whether the priest absolving otherwise has ordinary or delegated jurisdiction, and whether he knows or does not know that he lacks jurisdiction.

¹ Lessius, De iure l. 2, c. 29, n. 68.

345. In Danger of Death all priests, although not approved for confessions, validly and licitly absolve any penitents whatever from any sins or censures whatever, however much reserved and notorious, even if an approved priest is present.¹

1. Danger of death, in which every priest has the power of absolving, is present not only in grave illness, but also where the danger of death is brought about by an external cause, as in battle, in dangerous navigation, in a difficult childbirth, etc.

From a declaration of the holy see, soldiers constituted in a state of military mobilization (im Mobilisierungsfalle) are by that very fact equated with those who are in danger of death, so that they can be absolved by any priest at hand.²

2. All priests, therefore even one irregular, suspended, indeed even an excommunicated vitandus, schismatic, heretic, or apostate. A priest not approved absolves validly and licitly even when an approved priest is present; but a priest bound by an impediment or censure absolves licitly only when a priest who is free from every impediment and censure is lacking.

Just as absolution given by a non-approved priest is valid even when an approved priest could easily have been called or present, so absolution granted from reserved sins, either simply or with censure, by a priest not having jurisdiction in reserved matters is valid even if a priest having the aforesaid jurisdiction could easily have been called or present.³

3. From any sins and censures whatever: for in danger of death there is no reservation. Nevertheless those who have been absolved by a priest lacking power over these sins and afterward recover must, under penalty of reincidence, have recourse, and indeed: a. those absolved from some censure inflicted ab homine, to the one who issued the sentence; b. those absolved from a censure reserved in a most special manner to the apostolic see, to the Sacred Penitentiary or to the bishop or to another having faculty, and obey their commands.⁴

In danger of death even the absolution of an accomplice is valid and licit, but only in the case of necessity, i.e., if another priest is not present and cannot be called; outside the case of necessity it is indeed valid but illicit.⁵

¹ Cn. 882. The Council of Trent, sess. 14, c. 7, has this: "Most piously, lest anyone perish on this occasion, it has always been kept in the same Church of God that there be no reservation in the article of death; and therefore all priests can absolve any penitents from any sins and censures whatever."

² S. Penitentiary, 12 March 1912.

³ S. Officium, 29 July 1891.

⁴ Cn. 2252.

⁵ Cn. 884.

346. In Common Error and in the Case of Probable Jurisdiction.

Declarations. a. Error is called common if all or almost all the faithful of some place think that a confessor is actually furnished with jurisdiction; it is called private if that error is of one person or of a few.

a. In order that someone be regarded as a confessor through common error, some fact is required, e.g., the exercise of the office of confessor performed for some time, from which the faithful of the place commonly regard him as a confessor. It does not suffice that someone once hear confessions in the manner of others.

b. Error is judged to be common provided that, in the place in which the priest hears confessions, the defect of jurisdiction is unknown, even if that defect were known in another place.

b. In a positive and probable doubt concerning the existence of jurisdiction, there is probable jurisdiction, whether the doubt is of law or of fact, provided positive and probable reasons prove the existence of jurisdiction.

Principles. 1. In common error the Church supplies jurisdiction.¹

a. It makes no difference whence the common error arose. The internal reason which determines the Church to supply jurisdiction is the common good, namely lest many souls perish.

b. A priest who hears confessions and absolves after the time of jurisdiction has already expired; likewise a confessor who does not remember whether this sin is reserved in the diocese; finally a confessor who does not know whether the time of jurisdiction has already expired - these enjoy common error. Wherefore one who, while hearing confessions, remembered that the time of jurisdiction had already elapsed, or doubted about this matter, would not have to cease from hearing confessions.

2. In any positive and probable doubt, whether of law or of fact, or in the case of probable jurisdiction, the Church supplies jurisdiction.²

a. It is clear that in the case of probable jurisdiction the Church must supply jurisdiction only hypothetically, namely if the confessor in fact lacks the jurisdiction about whose existence there is doubt.

b. More frequent cases of probable jurisdiction occur in sins and reserved censures, where authors doubt whether some sin committed in determined circumstances is reserved or not.

3. It is lawful to absolve with probable jurisdiction: for since in this case the Church certainly supplies willingly and freely, the absolution is certainly licit and valid.

In order that one can use probable jurisdiction, a special cause is not required, provided that before using it he has tried to solve the doubt about the existence of jurisdiction, lest he use the same rashly.

¹ Cn. 209. Therefore in order that the Church certainly supply jurisdiction, besides common error the colored title which was formerly said to be necessary is not required.

² Cn. 209.

Jurisdiction can be conceded in an ordinary way, for example by conferring an office to which jurisdiction is annexed, or by express delegation, and in an extraordinary way, namely by supplying deficient jurisdiction, as it is called. Concerning this supplied jurisdiction, the following things are to be noted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Code, c. 2366.

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

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

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

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

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

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

405. 2° But doubtful jurisdiction is that whose uncertainty depends upon a fact, for example, when there is doubt whether jurisdiction was granted by the Superior, whether it still endures or has expired, whether such a censure is reserved or not. Now even in this case the Church supplies jurisdiction, from the same canon 209; but it is not licit to use this without a grave reason.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is said:

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

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

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

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

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

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

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

A. The Church supplies in common error:

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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

LIII. The same Viva, question 8, article 2, nos. 1 and 2: “It seems not to be lawful to confect the Sacrament of Penance with probable jurisdiction, at least when certain jurisdiction can be had. Nevertheless I judge it to be lawful to absolve with probable jurisdiction. … Hence it follows that by Innocent XI in the first of his proscribed theses this opinion has not been condemned: because he ought to have CONDEMNED IT OPENLY, if he had wished, that not only in those things which pertain to the matter and form of the Sacrament, but also in those which pertain to jurisdiction, we should follow the safer opinion, the probable being omitted, as many learned men thought.”

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

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

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

A secular priest, possessing the usual diocesan faculties ad triennium, but holding no other official position, is appointed, conjointly with other priests, to act as confessarius at a students' institute. In the full belief that his jurisdiction has not yet expired, he hears a number of confessions, and discovers only some days afterwards that he has made a mistake, for his jurisdictionexpired some weeks previously.

Question.—Were the absolutions that he gave valid?

Answer.—This is undoubtedly a case of jurisdictio suppleta in errore communi cum titulo colorato. The pupils at the institute could not possibly be aware that the priest's jurisdiction was at anend, nor could any one else know it, and consequently there was certainly an error communis, and the other condition, viz., the titulus coloratus, was also present. The bestowal of any office with which the duties of a confessarius are intimately connected, such as an appointment to be parish priest, proves a titulus to exist, and a direct and formal appointment to be a confessor must do so still more. If the appointment to any such office is null and void, owing to some secret flaw (simony), or has been subsequently revoked, by the will of a superior, there is a titulus coloratus so called to distinguish it from a titulus existimatus, which is a titulus never conferred at all by the ecclesiastical authorities, but only believed by the faithful to exist, as when a parish priest has been appointed by the state.

As the secular priest in question was directly and formally appointed confessor to the institute by the episcopal Ordinary, the Church furnished his jurisdiction, according to the titulus coloratus which the ecclesiastical authority had bestowed upon him. Many authors extend this furnishing of jurisdiction also to a titulus existimatus.

There is a further circumstance connected with those penitents who perhaps confessed only a materia libera (venial sin, or grievous sin already confessed). Since the issue of the decree "Cum ad aures" by Innocent XI on February 12, 1679, it has not been lawful for priests without approbation and jurisdiction to pronounce absolution even from venial sins, but the validity of such an absolution is still regarded as at least speculative probabilis. According to the general teaching of theologians, the Church will certainly supply any jurisdiction that may be wanting in casu jurisdictionis speculative probabilis.

The question of supplied jurisdiction in errore communi is answered by Canon 209 of the Code which states: "In common error or in a positive and probable doubt both juris and facti the Church supplies jurisdiction for the external as well as the internal forum." As the reader will notice, this new law makes it unnecessary to pay attention to the titulus coloratus or any other.