The Power of Jurisdiction in General

I. Notion of jurisdiction.

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

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

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

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

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

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

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

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

2. Into jurisdiction of the external forum and of the internal forum, according as it is directly ordered to the common good or to private good. Hence jurisdiction of the external forum, or political, public forum, is exercised around that kind of matters which proximately regards the public utility of the faithful and the external order of the Church. Jurisdiction of the internal forum, or of conscience, of the forum of heaven, regards those things which proximately pertain to the private utility of the faithful. Jurisdiction of the internal forum is twofold, sacramental and extra-sacramental, according as it is exercised in or outside the sacrament of Penance (can. 196).

3. Into non-judicial or voluntary jurisdiction, and judicial or necessary jurisdiction. The former is exercised without the form of a trial and therefore over willing persons, as if someone dispenses someone from a law. The latter is exercised in judicial form and therefore over unwilling persons.

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

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

2. One who has delegated jurisdiction can subdelegate it as follows:

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

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

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

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

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

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

V. Extension of jurisdiction. Jurisdiction extends itself:

1. With respect to persons:

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

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

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

2. With respect to forum:

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

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

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

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

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

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

VI. Cessation of jurisdiction.

1. Ordinary power ceases when the office has been lost; it does not cease when the right of the one granting it has been dissolved, unless the law establishes otherwise, or unless in the concession there is contained the clause "at our good pleasure" or another equivalent clause (can. 208; 183, § 2). Jurisdiction is silent, that is, its force is suspended, if an appeal is interposed which is conceded in the suspensive effect; if it is conceded in the devolutive effect, meanwhile the subject must submit himself (can. 208).

2. Delegated power ceases: 1. when the mandate has been completed; 2. when the time has elapsed or the number of cases for which it was conceded has been exhausted; 3. when the final cause of the delegation ceases; 4. by revocation of the delegating one directly intimated to the delegate, or by renunciation of the delegate directly intimated to the delegating one and accepted by the same; 5. when several have been delegated collegially, if one is lacking, the delegation of the others also expires, unless something else is established from the tenor of the delegation. When the right of the delegating one has been dissolved, delegated power does not cease unless something else appears from added clauses, or unless the rescript confers the power of granting a grace to particular persons expressed in the rescript, and the matter is still entire¹ (can. 207, §§ 1 and 3; 1725, 3°). Finally, when power has been conceded for the internal forum,² an act placed through inadvertence after the time has elapsed or the number of cases has been exhausted is valid (can. 207, § 2).

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

² For example, sacramental jurisdiction.

Who generally can make laws? - Since God is Lord of all, and has ordered obedience to superiors not only ecclesiastical but also civil, not only he himself, but they also can make laws. L. 140. Hence several laws are distinguished:

Eternal law, which is: The eternal reason and will of God commanding the natural order to be preserved and forbidding it to be disturbed. S. Aug. l. 22 Contra Faustum c. 27. It is the beginning and foundation of every law; for from it flows natural law, and from natural law the remaining laws take their force and norm. Cf. S. Th. 1. 2. q. 91. a. 1, q. 93, q. 95 a. 2, q. 96. a. 4; Wirceburg. De Legib. c. 1. a. 2.

Natural law, which is the eternal law of God promulgated to men through right reason, by which we discern what is good and what evil, the good to be done and evil to be avoided. Therefore the object of this law is that which is per se and intrinsically good or evil. In it are distinguished the first principles of morals, immediate conclusions, and mediated conclusions. Cf. S. Th. 1. 2. q. 91. a. 2. 6, q. 94; L. 102; Wirceburg. l. c. a. 3. 4. 6.

Divine law, which is law given by God through revelation. It is twofold; for one is contained in the Old Testament, the other in the New Testament. The Old Testament contained ceremonial, judicial, and moral precepts. Only the moral precepts remain to be observed today, the rest having been abrogated by the New Law. Matt. 19:17; 1 Cor. 7:19. The New Testament, besides counsels, contains precepts of catholic faith, morals, sacraments, sacrifice, and ecclesiastical hierarchy. The moral precepts are those very things which stand by natural right, and the law of the unity and indissolubility of marriage is that which, enacted from the beginning of the world, was confirmed by Christ. Matt. 19:4 seq. Cf. S. Th. 1. 2. q. 91. a. 4. 5, q. 98-108; L. 103. - The legal precepts of the Old Testament, or ceremonies, sacred things, sacrifices, sacraments of the Mosaic Law, all ceased after the Gospel was promulgated, nor can they be observed without sin. Eugene IV, B. Cantate Domino. - Wirceburg. l. c. c. 2.

Canon and civil law. The former is from ecclesiastical power, and it touches those things in the Church which regard the salvation of souls. The latter is from civil power, and moderates rights and obligations between citizens and citizens; between citizens and society and its Prince; between nation and nation. Whence private, public, and international or law of nations arises. C. 1. 13 de Const., C. 2 e. t. in 6; Inst. l. 1. t. 1. 2, l. 2. t. 1. § 11; L. 2 de Origine Iuris etc. §§; S. Th. 1. 2. q. 91. a. 3, q. 95, 2. 2. q. 57; Wirceburg. l. c. c. 3; E. M.

But the law of nations can be taken otherwise, namely insofar as it is distinguished from civil law. Appositely S. Th. 1. 2. q. 95. a. 4 says: "It belongs to the notion of human law that it be derived from the law of nature, and according to this positive law is divided into the law of nations and civil law. For to the law of nations pertain those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; which is of the law of nature, because man is naturally a sociable animal. But those things which are derived from the law of nature by way of particular determination (of certain common things, a. 2) pertain to civil law, according as any city determines something suitably to itself." And thus likewise that one must not kill pertains to the law of nations; for it is derived as a conclusion from the fact that evil must be done to no one. To punish the criminal with such or such a penalty pertains to civil law; for it is a determination of the common law of nature, that he who sins be punished. S. Th. ib. a. 2. "And therefore Caius the jurist says, L. 9 ff. De Iust. et iure: What natural reason has constituted among all men, that is preserved equally among all, and is called the law of nations." S. Th. 2. 2. q. 57. a. 3. Hence the law of nations embraces not only those things which are imposed by the very necessity of nature, as the division of goods, but also those things which flow from a certain highest suitability of nature, and which therefore are preserved by all through use and custom, by a certain implicit compact, or, when doubts arise, by an explicit compact, such as to enter a foreign region, unless danger arises from it for that region; free navigation of every sea; mutual commerce among peoples; transmission of letters; abolition of servitude, etc. - But positive law more determinately defining the various relations to be observed among nations will be able better to be called international law.

180 bis. Note: Natural law is altogether immutable, since it regards those things which by their nature are good and by their nature are evil. Against this immutability, as is clear, certain things permitted by God have no force, which because of peculiar circumstances were no longer opposed to the right order, as, for example, polygamy permitted to the patriarchs, dissolution of marriage, etc.; or were not opposed to that order because the matter is subject to divine dominion, as theft once permitted to the Hebrews. But change is not had as regards the precepts of natural law which are called primary, without which the order of things cannot exist, as, for example, the honor due to God, subjection in man of the lower part to the higher, etc.; but only as regards those precepts which are called secondary, and which regard not the very being of the order, but the perfection of the order, as, for example, the marriage of brothers and sisters permitted to the first parents. - S. Th. 1. 2. q. 100. a. 5; Wirceburg. De Legib. c. 1. a. 5.

Canon Law: The collection of canonical laws constitutes Canon Law. Yet some canonical laws are contained in the Corpus Iuris, others are outside it. The Corpus Iuris contains three Parts. The first part contains the Decree of Gratian, a Benedictine monk, around the year 1150, in which, in a threefold part, under the title on Distinctions, on Causes, on Consecration, there is treated successively of ecclesiastical persons, ecclesiastical judgments, and sacred things. This collection is not authentic; therefore the individual texts have and retain their force from themselves, not from the collection. The second part contains the Decretals by S. Raymond of Pennafort, of the Order of Preachers, in the year 1234, in which likewise, in five books, there is treated successively of persons, judgments, things, marriage, and penalties. This collection, completed and published by order of Gregory IX, is authentic, and therefore the laws contained in it have the force of universal laws from the very fact of insertion into it. The third part contains the sixth book of the Decretals, so called because it was added to the five books of the Decretals of Gregory IX. It was published by the authority of Boniface VIII in 1298; therefore the collection is authentic, and proceeds in the same order as the Decretals of Gregory. This third part also contains the Clementines and Extravagantes. The Clementines are so called from Clement V, who after the Council of Vienne, over which he himself presided in 1311, ordered the Constitutions issued by himself and by the same Council of Vienne to be collected. Therefore this too is an authentic Collection. It is divided into five books. This same third part contains the Extravagantes of John XXII and the Common Extravagantes. The former are constitutions issued in the earlier years of the pontificate of the aforesaid Pontiff. The latter are other Constitutions issued by John XXII and by other Pontiffs, divided into five books. Although all those Constitutions are genuine, nevertheless they do not constitute an authentic Collection. The other Constitutions that are present, besides these, of the Council of Constance, of Trent, and of the Vatican, and also of the Supreme Pontiffs, issued afterward, were not collected into the Corpus Iuris.

Civil Law: Roman Law is contained in the Corpus of Civil Law issued by order of Justinian in the 6th century. It embraces four parts: the Institutes of Justinian, divided into four books, which are subdivided into titles and paragraphs; the Pandects, which comprehend selected responses of jurists, to which the force of law was attributed, also called the Digest or Digests, because they contain legislation arranged in order, and are divided into fifty books, which are subdivided into titles and laws; the New Code, or repeated lectures, that is, in a second edition or publication, C. Cordi nobis, Nov. 16, 534, which contains twelve books, subdivided into titles and laws, and embraces the constitutions of Princes; the Novels, or Constitutions issued after the Code, which are not all of Justinian himself, and are genuine, although their Collection is not authentic as the three preceding parts are. Modern law is contained in modern Codes, which are divided into books, titles, and articles.

Who make laws in the Church? - The Church is a true and perfect society, plainly free, superior to civil society. It has power conferred on it by God not only of directing through counsels, but also of commanding through laws; nor does it enjoy only legislative power, but also judicial and coercive power. Its laws, independently of any civil power whatever, have force and oblige in conscience, and they do not only stand in matters of faith and morals, but also extend themselves to the discipline of the Church. Cf. E. M. 180. The Primacy of the Supreme Pontiff was instituted by Christ, and it is of divine right that Blessed Peter have perpetual Successors in that primacy. But the Roman Pontiff is the successor of Blessed Peter in the aforesaid primacy, not only of honor, but also of jurisdiction, over the universal Church. Likewise the Roman Pontiff is infallible when he defines a doctrine of faith and morals to be held by the universal Church. And he has supreme power of making laws for the whole Church, nor does he in any way violate the rights of Bishops by various reservations. Bishops have no power except one dependent on the Supreme Pontiff and subordinated to him. For the Church is not instituted nor administered in the manner of a republic. C. Si quis 2 de Maior., C. Ut animarum 2 de Const. in 6. Legates also make laws in their Provinces, but in the name and by the authority of the Supreme Pontiff. C. Nemini 10 de Off. legati. Legates are those who are deputed by the Supreme Princes for handling more grave affairs, or a generality of affairs.

A General Council is principally composed of all the Bishops of the catholic world. It can make laws for the whole Church. But its Decrees, in order to have force, must be confirmed by the Roman Pontiff. - A Provincial Council is principally composed of the Bishops of some province, with the Metropolitan presiding. From the Council of Trent it would have to be held every three years. It makes laws for the Province. Its Decrees are to be reviewed by the S. C. C. But they are approved in common form, so that they acquire nothing of new right; and in specific form, so that they become pontifical laws. Sixtus V, C. Immensa aeterni; Pius X, C. Sapienti concilio, Ord. serv. in R. C., special norms c. 7. a. 4 par. 6. But the Metropolitan can promulgate them by public edict. Nor indeed do the Decrees of Councils, whether plenary or provincial, lack their force unless they have been incorporated into diocesan statutes. S. O. Sept. 10, 1896. Bishops make laws in their own dioceses, namely after they have been canonically instituted in their own dioceses, Apostolic letters having been expedited and exhibited, C. Iniunctae de Elect. Extrav. Comm.; C. of Pius IX Romanus Pontifex. For they are true Rulers in their dioceses, Acts 20, 28. But a power of this kind is necessary for the right administration of the diocese. Hence Bishops can indeed make laws, each for his own diocese, even without the consent of the chapter, unless however the question concerns those things which can yield to the prejudice of the chapter or clergy. C. Novit 4, C. Quanto 5 de His quae fiunt a prael. Nevertheless the custom has prevailed that, unless it has been expressly provided otherwise, those things which a Bishop decrees outside synod, the chapter not having been consulted, do not have the force of law, but of a simple statute, which consequently ceases when the right of the Bishop ceases, by death, translation, abdication. But statutes of the Bishop, even outside synod, yet made and promulgated after the counsel of the chapter has been heard, according to the truer opinion, have the same perpetuity as Synodal Constitutions. Bishops can decree nothing against the laws of the Pontiff, nor in matters reserved to the Holy See, since an inferior does not have jurisdiction over a superior. Bened. XIV De Syn. l. 12. c. 5. n. 1, l. 13. c. 5; L. 104, l. 7. n. 6. Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not superiors properly so called, although they can settle their disputes brought before them. - L. 105; Struggl q. 2. n. 6; E. M.

Can others also besides the Supreme Pontiff and Bishops establish laws? - A Cardinal can, by reason of his dignity, make laws in the Church of his Title. C. His quae de Mai. et obed., C. Querel. de Elect., C. of Innocent XII Romanus Pontifex, Sept. 17, 1692. But the College of Cardinals, when the Roman See is vacant, if necessity does not urge, cannot make laws; rather it must immediately apply itself to the nomination of another Pontiff. Clem. 2 de Elect., C. 3 de Elect. in 6; Pius X, C. Vacante Sede, Dec. 25, 1904, t. 1. c. 1-4.

Abbots and exempt Prelates can make laws for their territory, where they exercise quasi-episcopal jurisdiction; for legislative power is joined to jurisdiction. The cathedral chapter, when the See is vacant, can establish laws which would be necessary for various circumstances. For by right it succeeds to the jurisdiction of the Bishop. C. His quae 11, C. Cum olim 14 de Mai. et obed.; L. 104; Lugo Resp. Mor. l. 1. d. 21. n. 5. Chapters or General Congregations and Regular Prelates are able to establish true laws within the limits of their jurisdiction, according to the proper Constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which grant them this faculty. Jurisdiction, namely granted by the Pope, but not by force of the vow, which, since it is personal, gives only the power of imposing precepts, but by no means of establishing law. Elbel 278-280.

Abbesses or Superiors of nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. Nevertheless they can exact obedience in conscience concerning things commanded, or concerning those things which conduce to the advancement of nuns according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community. Hence novices, although they are not bound to obedience strictly by force of a vow, which they have not emitted, are nevertheless in some way bound to obey by reason of regular discipline. For this reason "abbesses can make precepts for the right governance of the house, and even oblige under grave fault." L. 104. Cf. Schmalz. l. 1. t. 31. n. 38. 39; Elbel 281-284.

Pastors cannot establish laws. The reason is that they do not have jurisdiction in the external forum. Colleges can establish statutes for themselves, which bind their members as agreed compacts. Nevertheless the statutes of chapters in cathedral churches, etc., acquire the force of law from the approval of the Bishop. Bened. XIV De Syn. l. 13. c. 5. n. 1. If Chapters neglect to make their own Statutes, the S. C. C. commands Bishops that they themselves make Constitutions and enjoin them on the Chapter to be observed. Lucidi De Visit. SS. LL. V. 1. C. 3. § 4. n. 146. - E. M.

Who make laws in Civil Society? - The Prince or the people or both together, according to the varied form of government, make laws. In monarchical Governments, Princes who enjoy supreme power in civil society make laws. In representative Governments the power of making laws resides in the King, or in the President of the republic, and in the legislative Body constituted from Deputies, or also from Senators. Indeed secular Princes are true superiors in civil society, and that power is necessary for the right governance of civil society. Therefore there is no doubt that their laws can also oblige in conscience. L. 104; S. Th. 1. 2. q. 105. a. 1; E. M.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Otherwise they can sin; nevertheless they absolve validly.

582. Observations concerning certain circumstances of jurisdiction. - 1. Concerning the conditions regarding the liceity of concession, let can. 877 be considered:

"§ 1. Both Ordinaries of places should not grant jurisdiction, even ordinary jurisdiction from can. 149, and religious superiors should not grant jurisdiction or license, except to those who have been found fit by examination, unless it is a matter of a priest whose theological doctrine they have learned from elsewhere.

"§ 2. If after jurisdiction or license has been granted they prudently doubt whether a priest previously approved by them continues to be fit, they should compel him to a new trial of doctrine, even if it is a matter of a parish priest or penitentiary canon."

2. Concerning the extent of delegated jurisdiction, can. 878:

"§ 1. Delegated jurisdiction or license for hearing confessions can be granted circumscribed within certain definite limits," namely as to time, place, persons: for the whole matter depends on the will of the one delegating.

"§ 2. Nevertheless Ordinaries of places and religious superiors should take care not to restrict jurisdiction or license too narrowly without reasonable cause."

Hence a) if the bishop grants jurisdiction for a determinate category of penitents, it would be extended invalidly to others, even if the limitation appeared altogether irrational;

nevertheless b) if the request and concession are general, the jurisdiction obtained is not limited to the work which was the occasion of the concession: thus jurisdiction granted on the occasion of spiritual exercises to be given in a convent or pious society permits hearing the confessions of other faithful; everything is contained in the concession which is not excepted, whether by express restriction, or by the law itself, as happens for reserved cases.

3. Concerning the mode or form in which concession is given, can. 879:

"§ 1. For hearing confessions validly, there is need of jurisdiction granted expressly, though implicitly, in writing or by words.

"§ 2. Nothing can be demanded for the concession of jurisdiction," otherwise it would be simony.

It must be noted: a) The Code does not seem to exclude the use of telegraph or telephone, but it does exclude tacit or merely presumed concession of jurisdiction, which is given without an intentional sign by a nod alone, or would only be given if it were requested; and a fortiori it excludes jurisdiction which has been requested and unjustly denied.1

b) But when jurisdiction has been given, presumed license from can. 874, § 1, is not excluded.

c) Nor is intimation required; whence, says Vermeersch, Th. M. III, n. 416: in an urgent case, jurisdiction could be presumed, as they say, de praesenti, and he who is morally certain that the petition by which he requests jurisdiction has been received by the bishop, and that an affirmative response has been given, whether to a procurator or by letter, could, when matters are urgent, even before the letters have been received or before the return of the mandatary, receive confessions.2

Question 1. What is the power of jurisdiction?

Resp. The power of jurisdiction or of governance which by divine institution is in the Church is one thing of the external forum, another of the internal forum, or of conscience, whether sacramental or extra-sacramental (Can. 196).

Jurisdiction of the internal forum is not necessarily sacramental; namely it can be exercised in the extra-sacramental internal forum, unless the sacramental is required.

Question 2. What power of jurisdiction is ordinary, and what delegated?

Resp. Ordinary is that which by the law itself is attached to an office; delegated, that which has been committed to a person. But ordinary can be either proper or vicarious. - Cf. Can. 197. Ordinary is as it were official, delegated personal.

Question 3. Who are to be understood under the name of Ordinary?

Resp. § 1. In law under the name of Ordinary are understood, unless someone is expressly excepted, besides the Roman Pontiff, for each one's own territory, the residential Bishop, Abbot or Prelate nullius, and their Vicar General, Administrator, Vicar and Prefect Apostolic, and likewise those who, when the aforesaid are lacking, meanwhile succeed in governance from the prescription of law or from approved constitutions; but for their own subjects, major Superiors in exempt clerical religions.

§ 2. But under the name of Ordinary of the place or of places come all those listed, except religious Superiors (Can. 198).

This is very much to be noted in the canons of the Code, lest an error be made, and what is just not be given to him to whom it is owed.

Question 4. What is the law concerning delegation of ordinary power of jurisdiction, and concerning subdelegation of delegated power?

Resp. § 1. 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.

§ 2. 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 was chosen or subdelegation was prohibited.

§ 3. Power delegated for a universality of affairs by him who below the Roman Pontiff has ordinary power can be subdelegated in individual cases.

§ 4. In other cases delegated power of jurisdiction can be subdelegated only by a concession expressly made; but delegated judges can subdelegate some non-jurisdictional article even without express commission.

§ 5. No subdelegated power can again be subdelegated, unless this has been expressly conceded (Can. 199).

Care must certainly be taken lest the clause at the end of the first paragraph, "unless," etc., be passed over.

Question 5. What power of jurisdiction is to be interpreted broadly, and what strictly?

Resp. § 1. Ordinary power of jurisdiction and power delegated for a universality of affairs are to be interpreted broadly; any other strictly; yet to him to whom power has been delegated, those things also are understood to have been conceded without which the same power could not be exercised.

§ 2. Upon him who asserts that he is delegated rests the burden of proving the delegation (Can. 200).

Because he ought not be admitted to a work proper to another unless it is established that the right has been conceded to him.

Question 6. Over whom can the power of jurisdiction be exercised?

Resp. § 1. The power of jurisdiction can be exercised directly over subjects alone (Can. 201).

Question 7. Whether one having judicial power, whether ordinary or delegated, can exercise it for his own advantage or outside the territory?

Resp. Negatively, with the prescriptions of Can. 401, § 1, 881 § 2, and 1637 remaining safe. Cf. Can. 201, § 2. Now indeed Can. 881, § 2, says "those who have ordinary power of absolving can absolve subjects everywhere on earth."

Question 8. Whether one having voluntary or non-judicial power of jurisdiction can exercise it for his own advantage, or while existing outside the territory, or upon a subject absent from the territory?

Resp. Affirmatively, unless something else is established from the nature of things or from law. - Cf. S. C. Indulg., 1 Feb. 1905, to II. - Can. 201, § 3.

Question 9. Whether an act of the power of jurisdiction given for one forum is valid for the other?

Resp. § 1. An act of the power of jurisdiction, whether ordinary or delegated, conferred for the external forum, is valid also for the internal forum, but not conversely.

§ 2. Power conferred for the internal forum can also be exercised in the extra-sacramental internal forum, unless the sacramental is demanded.

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

Question 10. When does delegated power cease?

Resp. § 1. Delegated power is extinguished when the mandate has been completed; when the time has elapsed or the number of cases for which it was conceded has been exhausted; when the final cause of the delegation ceases; by revocation of the delegating one directly intimated to the delegate, or by renunciation of the delegate directly intimated to the delegating one and accepted by the same; but not when the right of the delegating one has been resolved, except in the two cases of which in can. 61.

§ 2. But when power has been conceded for the internal forum, an act placed through inadvertence, after the time has elapsed or the number of cases has been exhausted, is valid.

§ 3. When several have been delegated collegially, if one fails, the delegation of the others also expires, unless something else is established from the tenor of the delegation (Can. 207).

Question 11. Whether ordinary power is extinguished when the right of the Superior conceding the office to which it is attached has been resolved? When does it cease? When is it silent?

Resp. According to the norm of can. 183, § 2, ordinary power is not extinguished when the right of the one conceding the office to which it is attached has been resolved; but it ceases when the office has been lost; it is silent when a legitimate appeal has been interposed, unless perhaps the appeal is only in devolutive effect, with the prescription of can. 2264, 2284 remaining firm (Can. 208).

According to canon 183, an ecclesiastical office in the case of the resolved right of the superior is not lost, unless the law provides otherwise, or unless in the concession there is contained the clause: at our good pleasure, or another equivalent.

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 13. Whether the power of order attached to an office by a superior or committed to a person can be committed to others?

Resp. The power of order, by a legitimate ecclesiastical Superior whether attached to an office or committed to a person, cannot be committed to others, unless this has expressly been conceded by law or indult (Can. 210).

Thus, for example, the interim Superior of some vacant mission can be given the faculty of administering the sacrament of Confirmation, but that cannot be committed to others, unless the power of subdelegating has been expressly conceded.