The Restriction of Jurisdiction

354. Restriction of Jurisdiction. Jurisdiction, since it is concerned with a divisible object and is conferred by the free will of man, can be restricted and limited in various ways:

a. With respect to persons, as if someone receives jurisdiction for the whole diocese, certain persons nevertheless being excepted, e.g., women or nuns.

In some regions, e.g., in Italy, it is customary that jurisdiction be conferred upon young priests especially with limitation to absolving men alone, but not women; for this reason in the Code of Canon Law there sometimes occurs mention of a confessor approved also for women, or for either sex.

b. With respect to place, as if someone can receive confessions in only one parish.

Thus pastors in themselves receive jurisdiction (ordinary) only for their own parish; nevertheless it is customary that both pastors and chaplains receive jurisdiction (delegated) for the whole diocese.

c. With respect to time, as if jurisdiction is conferred on someone for a two-year period, after which the granted power expires.

d. With respect to certain sins, as if the supreme pontiff or a bishop reserves absolution from certain sins to himself. This limitation of jurisdiction is called the reservation of cases, which needs a fuller exposition.

¹ Jos. Pauwels, De casibus reservatis, 2 vols. Migne republished, Theologiae cursus completus XVIII, 933-1604. Ian. Bucceroni, Commentarii de casibus reservatis (Rome: Armani, 1889). Ballerini-Palmieri, Opus theol. mor. V, Appendix de casuum reservatione. Matth. Hausmann, Geschichte der papstlichen Reservatfalle (Regensburg: Pustet, 1868).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Preliminary note. Jurisdiction can be restricted or limited in diverse ways, namely: as to persons, if, for example, nuns are excepted from the jurisdiction; as to place, if, for example, jurisdiction is limited to a particular district; as to time, if the power of hearing confessions is granted, for example, for a three-year term; as to certain sins, if the confessor cannot absolve from them. This last restriction of jurisdiction is customarily called the reservation of cases, which must now be treated, leaving aside the other three restrictions, which are easily understood without a special explanation.

418. Reservation of cases. The reservation of cases, as we now speak of it, is the avocation of some case, whether a sin or a censure, to the proper tribunal of the one reserving it, so that no one can impart absolution except the one reserving it, his successor or superior in office, or his delegate.

The reservation of cases is defined by certain authors as the denial of the power of absolving from certain sins when the power of absolving from the others has been granted. But this definition expresses not the primary but the secondary effect of reservation, since its primary note is avocation to a proper and special tribunal.³²⁹ Whether the primary or the secondary effect of reservation is considered, however, reservation immediately and primarily affects the confessor, whose power is limited; mediately it also reaches the penitent, who must approach the tribunal of the superior in order to obtain absolution.

³²⁹ Code of Canon Law, c. 893.

419. Manner of reservation. A twofold manner of reservation is distinguished, namely, by reason of censure and by reason of sin. The former reservations are called reserved censures, but the latter reserved sins. According to the discipline now in force, all cases reserved to the Supreme Pontiff are reserved censures, with one exception. On the contrary, cases reserved by bishops themselves are customarily reserved sins. For, besides the censures reserved to bishops by law, bishops indeed can impose other censures and reserve them, but are not accustomed to do so. In practice each manner of reservation must be carefully distinguished, since in each manner diverse things are required both for incurring the reservation and for absolution from it.

420. The end of reservation is the good discipline of the Christian people, who in this manner are salutarily deterred from more atrocious sins and are more efficaciously healed when they have committed them.

Concerning this matter the Council of Trent³³⁰ teaches: "It seemed to our most holy fathers to pertain greatly to the discipline of the Christian people that certain more atrocious and graver crimes should be absolved not by any priests whatsoever, but only by the highest priests." This discipline is most excellently obtained both on the part of the confessor and on the part of the penitent. For in this manner certain graver and more pernicious sins are reserved to superior judges endowed with more excellent prudence and experience; while penitents burdened with these sins receive a medicinal punishment, because they must undertake the burden of having recourse to a higher confessor, who is not accustomed to impart absolution unless a greater salutary penance has been imposed. Nevertheless, although the reservation of cases is excellent in itself, today it is to be employed sparingly, since faith has become so cold that penitents often care little about reservation, and since no small burden accrues to the confessor from reserved cases which occur. Therefore the Holy Office exhorts Ordinaries that, "speaking generally, they should not wish to apply their hands to this extraordinary remedy unless, after the matter has been discussed in the diocesan synod, or, outside the synod, after the Cathedral Chapter and some of the more approved and prudent curators of souls of their diocese have been heard, they are convinced in the Lord of the true necessity or utility of the reservation."³³¹

³³⁰ Sess. 14, c. 7, On Penance (Denz., n. 903).

³³¹ Instruction of July 13, 1916 (Acta Ap. Sed. VIII, 313 ff.). The same is established by the Code of Canon Law, c. 895.

421. The power of reserving cases belongs:

a) To the Supreme Pontiff for the whole Church, who has reserved to himself several censures, but only one sin, namely, the calumnious denunciation of a confessor.³³² Cases which are reserved to the Supreme Pontiff are customarily called papal cases.

b) To bishops for their own diocese.³³³ But let these episcopal cases be: 1. only sins which are truly more atrocious and external, and specifically determined, such as homicide, perjury, the grave striking of parents, and so forth; 2. not too numerous, at most four;³³⁴ 3. not cases which are already reserved to the Supreme Pontiff, or to which a censure, even if reserved to no one, is imposed by law. Bishops can, however, reserve these latter cases to themselves, that is, cases to which a censure reserved to no one is attached by law, if this seems altogether necessary.³³⁵ Not without reason do several authors judge that a reservation by which a bishop reserves to himself a case already reserved to the Roman Pontiff is both illicit and invalid, because it seems incongruous that a bishop should reserve to himself a case from which not even he can absolve by his own authority. Hence Noldin-Schmitt³³⁶ infers: "Therefore confessors who have the power of absolving from papal cases can absolve from these, even if the bishop has reserved them to himself."

A capitular vicar cannot reserve cases; nor can a vicar general do this unless he has a special mandate.³³⁷

c) To the superiors general of exempt clerical religious institutes and to an abbot sui iuris.³³⁸

Ordinarily they could reserve to themselves only the eleven cases called Clementine cases:³³⁹ 1. apostasy from the religious institute; 2. nocturnal and furtive departure from the monastery; 3. poisonings; 4. ownership contrary to the vow of poverty which is a mortal sin; 5. mortal theft of the goods of the monastery; 6. a voluntary carnal lapse consummated in act; 7. a false oath in a legitimate judgment; 8. procurement, counsel, or assistance toward the abortion of an animated fetus, even when the effect did not follow; 9. the killing, wounding, or grave striking of any person; 10. falsification of the handwriting or seal of the officials of the monastery; 11. the malicious obstruction, delay, or opening of letters directed from superiors to inferiors or from inferiors to superiors. If there was a grave cause for reserving other cases, the consent of the general council was required. Today, however, religious superiors do not seem able to reserve to themselves more than three, or at most four, cases; indeed, cases reserved by the particular law of religious orders seem to be of little practical utility, since any confessor approved by the local Ordinary can absolve from them, as was stated above at n. 416.

³³² Cf. below, n. 467.

³³³ Thus it is evident from the Council of Trent, sess. 14, can. 11, On Penance: "If anyone says that bishops do not have the right of reserving cases to themselves except with regard to external governance, and therefore that the reservation of cases does not prevent a priest from truly absolving from reserved cases: let him be anathema" (Denz., n. 921).

³³⁴ Thus the Holy Office in the Instruction cited above, n. 2; Code of Canon Law, c. 897.

³³⁵ Thus the Holy Office, l.c., n. 4; Code of Canon Law, c. 898.

³³⁶ De sacr.¹⁷, n. 373.

³³⁷ Code of Canon Law, c. 893.

³³⁸ Ibid., c. 896.

³³⁹ Constitution of Clement VIII Sanctissimus, May 26, 1593.

422. Conditions required for reservation.³⁴⁰ In order that a sin be considered reserved, it is required that it be:

a) Mortal.

For it would be useless to reserve a venial sin, since no one is bound to confess it.

b) External, even if occult.

Although the Church can reserve even internal sins, nevertheless it never does this, since such a reservation would be of little utility.³⁴¹

c) Specifically determined.

Namely, it is required that the words of reservation be verified in the strict sense. Hence, for example, if incest is a reserved sin, it is required that true carnal intercourse have occurred and that it was knowingly incestuous. Therefore, if only impure touches were performed, or if intercourse indeed occurred but without knowledge of the incest, the sin is not reserved.

d) Certain.

Therefore, if the sin was doubtful or doubtfully mortal, it is not reserved.

³⁴⁰ Code of Canon Law, c. 897.

³⁴¹ Cf. Benedict XIV, De syn. dioec. l. 5, c. 5, n. 5; Dominic Soto, In 4, dist. 18, q. 2, a. 5; Instruction of the Holy Office, July 13, 1916.

423. Ignorance of the reservation. The celebrated question is whether reservation is incurred by one who indeed committed the sin, but with ignorance of the reservation which was not gravely culpable.

The answer is made with a distinction: negatively, if there is question of censures reserved by common law; affirmatively, in sins which the bishop by his proper law reserves to himself, unless, however, he himself has established otherwise.

The first part of the answer is today taught most commonly by theologians, at least if the censure itself is unknown without grave fault.³⁴²

The reason is that none are punished with a censure except the contumacious, that is, those knowingly transgressing ecclesiastical law.³⁴³ But if the bishop himself, by his proper law, reserves to himself a sin together with a censure, which rarely happens, then the intention of the bishop himself must be attended to, since it depends upon him alone whether he wishes to bind those who are ignorant.

The other part of the answer is indeed not certain, but is more probable; and therefore the reservation of a) a sin which the bishop reserves to himself without a censure, and b) the sin of the calumnious denunciation of a confessor, insofar as it is a sin reserved to the Holy See, is incurred even by those ignorant of this reservation.

Thus St. Alphonsus.³⁴⁴ The reason is: a) because reservation is not only a medicinal punishment, but is also, and indeed principally, a bond upon the confessor, whose jurisdiction is limited in this case; b) because reservation seems to be after the manner of an invalidating or disqualifying law, from which no ignorance excuses.³⁴⁵ Hence in practice a penitent who committed such a sin reserved to the bishop is not to be absolved by a simple confessor unless a case of necessity is present.³⁴⁶ Sometimes, however, the bishop tacitly or expressly exempts those who are ignorant from the reservation. A tacit exemption can be admitted if the bishop permits the opinion concerning excusing ignorance to be taught in his seminary. In practice today almost all bishops explicitly declare whether or not they wish ignorance of the reservation to excuse. Thus, for example, before the Code, the bishops of Trier, Brixen, Lausanne, Basel, St. Gall, Chur, and others declared that ignorance did not excuse; on the contrary, the archbishop of Cologne, the bishop of Sion, and others declared that it did excuse. Therefore the practice of each diocese must be attended to in this matter. For the rest, the Code of Canon Law, c. 899, § 1, commands that Ordinaries take care, in whatever manner seems best to them, that the reservations be brought to the certain knowledge of the faithful. Many Ordinaries, however, now establish no reservations, since in some regions they bring little or no utility.

³⁴² Cf. Code of Canon Law, c. 2229. If, however, someone knowing of the censure was ignorant that it was reserved, he more probably incurs the reservation. Cf. St. Alphonsus, Theol. mor. l. 6, n. 580.

³⁴³ Cf. below in the tract on censures.

³⁴⁴ Theol. mor. l. 6, n. 581. Göpfert-Staab, Moraltheol.⁸ II, 147, teaches the contrary.

³⁴⁵ Code of Canon Law, c. 16, § 1.

³⁴⁶ Cf. below, n. 427.

1757. To be noted beforehand. Jurisdiction, which is necessarily required for valid absolution, has this proper to itself, that it descends as it were by degrees from Superiors to inferiors. Consequently, the inferior power is rooted solely in the superior power, and depends upon this alone. From this it follows that it belongs to Superiors to limit or restrict the jurisdiction of inferiors, indeed to take it away entirely, according to this rule of law: "Every thing is dissolved by the same causes through which it is born." - And hence it has been done by very good right that limitations or restrictions of this sort have always been customary in the Church, whether as regards PLACE AND TIME, or as regards PERSONS AND SINS. The Roman Pontiff alone, in whom there is the fullness of power, enjoys jurisdiction in every way and unlimited.

Concerning the limitation of jurisdiction as regards place and time we have said enough in treating of ordinary and delegated jurisdiction. It remains that in the present and following article we speak of its limitation as regards persons, and as regards sins.

The limitation of jurisdiction as regards PERSONS, established by the law itself, especially touches Regulars and Nuns. Wherefore we shall treat separately of the concession of jurisdiction, both with respect to Regulars and with respect to Nuns.

1758. Regulars can be considered under a twofold respect: insofar as they are confessors, and insofar as they are penitents. - Hence, so that all things which pertain to them under each respect may be treated, we shall divide the present matter into two parts, so that in order we may discuss: 1. the Regular Confessor; 2. the Confessor of Regulars.

There is a twofold reason why we judge that the question concerning the Regular Confessor is to be treated in this place: the one, so that all things which are proper to Regulars concerning jurisdiction may thus be inspected in one view; the other, so that the doctrine concerning their jurisdiction may become better known. For although the jurisdiction of a regular confessor receives no special limitation from the Law, nevertheless it is so bound by it that unless the Bishop's approbation accedes, it cannot be validly exercised over the Christian faithful. - With these things premised, let the following be:

1759. Principles. I. REGULARS properly so called, who pronounce solemn vows and who enjoy the privilege of exemption (likewise those who have communication of privileges with Mendicant Religious), receive jurisdiction immediately from the HOLY SEE for receiving the confessions both of THEIR OWN and of SECULARS. This is established from the Constitutions of the Supreme Pontiffs in the Body of Law;⁴ likewise from other Constitutions, which, although they were afterwards modified, especially through Trent as regards privileges, nevertheless remained unrepealed as regards jurisdiction. Thus commonly. Hence jurisdiction is conceded to any Regular by that very fact that the Superior grants him delegation, or communication of jurisdiction, in the name of the S. Pontiff.⁵

II. Regulars, for receiving confessions of SECULARS, need the APPROBATION of the Bishops in whose dioceses they are going to receive confessions. This is established from the decree of Innocent XII (in the year 1700), by which it was sanctioned that confessors, whoever they may be, both secular and regular, cannot hear secular penitents without the approbation of the Bishop of the place (cf. n. 1747, q. 2).

1760. From these things it is inferred: 1. The Bishop can concede approbation to Regulars at will, without restriction, or with some restriction as regards time, places, and persons. It is confirmed from various decrees of the Holy See.⁶ See what was said in n. 1749 seqq.

2. If the Bishop has expressly conceded approbation only for some transitory act, for example for some Mission, the conceded faculty is judged to be valid for that act alone, and for every judgment then begun.

3. If the Bishop, or your Superior by his delegation, grants you approbation for a determined class of penitents, the faculty cannot be extended to others, as is clear. But if the request of the faculty is general, and the concession has not been restricted, the obtained faculty is not limited to the work which was the occasion of the petition: thus, for example, if you seek the faculty on the occasion of giving spiritual exercises to Nuns in such a convent, by the same faculty received you can hear confessions also of other faithful. The reason is because "whatever is not excepted is contained in the concession." Yet except reserved cases, which, by the law itself, are never understood as comprehended in the general faculty of hearing confessions.⁷

1761. Questions. Q. 1. Whether the Bishop can, WITHOUT CAUSE, DENY approbation to Regulars?

Resp. Negative. "For," says Pignatelli,⁸ "Regular confessors do not receive jurisdiction from the Bishop, but from the Supreme Pontiff, and approbation is required only as a condition so that jurisdiction can be exercised. Therefore Bishops cannot prohibit Regulars from absolving at some time." Yet if approbation is lacking, even if unjustly denied, free jurisdiction will also be lacking (cf. n. 1747, q. 3).

Q. 2. Whether the Bishop can REVOKE approbation conceded to Regulars?

Resp. 1. He cannot revoke approbation conceded to all Regulars of the same community without consulting the S. C. of Bishops and Regulars. Thus from the Bull Superna. - Except if it is a question of regions very distant from the City, and a most grave cause underlies it; concerning which the S. Congregation wished the consciences of Bishops to be gravely burdened.⁹

Resp. 2. But the Bishop can revoke the approbation of individual Regulars in particular if a just cause is present. Moreover, if the Regular, after previous examination, was approved by the Bishop himself, without any restriction as regards persons or as regards time, the cause is not judged just unless it concerns confession. On the contrary, if he was approved by his Vicar or predecessor, or with limitation, the Bishop can, on account of any just cause whatever, revoke the approbation and subject him to a new examination. Thus from the same Bull Superna.¹⁰ - In practice, the regular confessor must always acquiesce in the judgment of the Bishop.

Q. 3. Whether a Regular once approved in some diocese needs NEW APPROBATION if, his dwelling having been changed, he returns to the same place or passes through it?

Resp. Negative, unless the diocesan Statutes, or the Bishop, decree otherwise. The reason is because one approved indefinitely and without limitation remains approved, at least until implicit revocation; but in the present case no revocation, not even implicit, has intervened. Therefore. Thus Croix,¹¹ Lugo,¹² with the common opinion.

Q. 4. Whether a Religious validly absolves, AGAINST THE WILL OF THE SUPERIOR, but from the express delegation of the Bishop?

Resp. 1. Negative, if the Bishop intended to give approbation only; and from another source the Superior, who has from the Rule the power of constituting confessors, is unwilling in such a way that he is judged to take jurisdiction away from his subject. The reason is clear; for then the Religious has jurisdiction from no one.

Resp. 2. Affirmative, if the Bishop intended also to confer jurisdiction; as in present practice is usually done. The reason is because the Bishop can well confer jurisdiction upon a Religious, no otherwise than upon a secular priest, over his own sheep. For whoever enjoys ordinary jurisdiction can delegate it to any priest.¹³

But that Religious would sin gravely against obedience, because he would transgress the precept of his Superior in a grave matter; nor could he in a case of this sort use the privileges of his own Order, because these are communicated through Superiors alone.

These things are confirmed by the declaration of the S. C. OF BISHOPS AND REGULARS. For when the doubts were proposed: - I. Whether a Religious not approved according to the laws of his own Order by his Superior, or against the will of the same, with only the faculty of the Ordinary, validly receives the confessions of seculars. - II. Whether Regular Superiors, having jurisdiction, can suspend their subjects from hearing the confessions of seculars, even from informed conscience. - And insofar as affirmative, III. Whether a suspension pronounced orally and without writing is valid? - IV. Whether absolution imparted by one who is bound by such suspension is valid? And insofar as negative, V. Whether he who attempts an absolution of this sort incurs irregularity.

The Sacred Congregation of Bishops and Regulars, the matter having been discussed, on March 2, 1866, judged that it should respond: To I. Affirmative. - To II. Affirmative; yet in such a way that the suspended Religious receives confessions illicitly, but not invalidly. - To III. Affirmative, since it is made after the manner of a particular precept. - To IV. Affirmative. - To V. Provided for in the preceding.¹⁴

See other things in the Treatise on the Religious State (n. 2187).

1762. Principle. Jurisdiction for receiving the confessions of EXEMPTS cannot be conceded by the Bishop, but by their PRELATE or by the POPE, whether directly or indirectly. But the Prelate can concede it even to one not approved, provided that, so that the delegation may be licit, he is judged fit. This is established from what was said above concerning the origin and nature of the jurisdiction of Regulars (nn. 1757 and 1759).

Hence: 1. Regulars dwelling at home are bound to confess to the Prelate, or to confessors appointed by him, and no Regular validly confesses except before the Superior, or before him who has been appointed by the Superior. Wherefore Clement VIII (Decree of May 26, 1593) COMMANDS: "Superiors, in individual houses, shall appoint two or three confessors, according to the greater or lesser number of subjects." - Except the time of Jubilee, as was said in n. 1736.

2. Servants and other seculars who are of the household and almost continual table-companions CAN be absolved by a confessor approved either by the regular Prelate or by the Bishop. This is established from Trent, sess. 24, cap. 11, de ref., and from the Constitution Superna of Clement X¹⁵ (cf. n. 2186).

1763. Questions. Q. 1. To whom can or must Regulars dwelling OUTSIDE THE CONVENT confess?

Resp. Regulars traveling with the license of their Superiors, or staying outside the Convent, must, if they have the availability of a confessor of their own Order, confess to him; for he is appointed by the law itself. "But if a companion is lacking, or another suitable confessor of his own Order, they can well, from the presumed license of the Prelate, confess to another SUITABLE priest, regular or secular (except the case in which it is a question of reserved sins); and in this all agree."¹

"But it is doubtful whether this priest must be APPROVED for confessions. Wigandt and Antoine affirm it, and Concina with Vasquez, etc. But others very commonly and more truly deny it";² because for confessors of Regulars even implicit deputation of the Superior suffices, according to the constitutions or customs of the Order, nor is approbation of the Ordinary of the place required by any law. It is established moreover from the declarations of Sixtus IV, in the Bull Supplicari,³ issued August 2, 1479, and of Innocent VII in the Bull Provenit,⁴ issued October 17, 1405, which concede to Regulars in that case "that they are able to choose any other suitable and discreet presbyter, Religious or Secular." Nor was this privilege revoked by the Council of Trent, which requires approbation for confessions of seculars, but not of Regulars.⁵

Nor does the declaration of the S. C. of the Council of November 18, 1769, in Hildesimen.⁶ hinder this: namely that illicit and invalid are the confessions of Religious who there were accustomed to choose for themselves a secular presbyter not approved by the Bishop; for they did not lack the availability of a confessor of their own Order, as is clear from the very exposition of the Doubt.

Nor does the Brief of Benedict XIV of March 30, 1742, in which it is required that Capuchins choose an approved one, hinder more; nor the declaration of the S. C. of Bishops and Regulars of June 3, 1861, by which the same condition is appended for the Order of Hermits of St. Augustine. For it is by no means established that the things thus established and decreed for Capuchins and Hermits must be extended to all Regulars. For each Religion has its own constitutions. - For the rest, as regards the Capuchins, "Pius IX, by Brief of September 27, 1852, modified the aforesaid disposition of Benedict XIV, by conceding to Capuchin Friars, whether lay or priests, dwelling in any place whatever because of sermons, Missions, a journey, or on account of any other legitimate cause, when there is no monastery or hospice there, and they have availability only of one priest confrere, the faculty of confessing their sins to a SECULAR priest approved by the Ordinary, or to another REGULAR priest approved by the Superior of the Order to which he belongs: - likewise by these they can be absolved from cases and censures reserved in the Order, with the obligation nevertheless remaining firm of later presenting themselves to their proper Superior, etc., so that they may again be absolved from the said cases and censures."⁷

Q. 2. Whether Regulars can absolve resident students, without the Bishop's approbation, as being of the household?

Resp. Some deny it, because resident students are not of the household, as servants are. Yet others, more commonly, affirm it. Nor does St. Alphonsus dissent; for speaking of that privilege which familiars of religious enjoy, he adds without any mark of reprehension: "Bordonus extends this to pupils of Monasteries."⁸ "In practice," says Gury,⁹ "this latter opinion is safe"; and the reason is because this has been expressly conceded to several Regular Orders, for example to Benedictines, Theatines, Somaschans, Clerics Ministers of the Infirm, etc., in which privilege the other Orders communicate by the fact itself.¹⁰

1764. I. Nuns who pronounce solemn vows and are CLOISTERED cannot confess except before a priest SPECIALLY approved for them. - Nor are those exempt from the jurisdiction of the Bishop and subject to the jurisdiction of their own Order excepted from this law. Yet in this case the appointment of the confessor and his election pertain, by law, to their regular Prelate. Thus from the Bull Inscrutabili of Gregory XV, which Benedict XIII confirmed through the Bull Pastoralis, March 27, 1726. But a confessor approved for one monastery cannot by that very fact receive confessions also in other monasteries, unless he has been universally approved by the Bishop for all Nuns. Thus from the Bull Superna of Clement X, June 21, 1670.¹¹

Several things worthy of note must be added here:

1. From the decree of the S. C. of Bishops and Regulars of September 20, 1642,¹² ordinary confessors of Nuns cannot be approved except for a three-year period: this having elapsed, so that they can be confirmed, an Indult of the S. C. of Bishops and Regulars is required, which it is accustomed to concede, just causes standing, under certain conditions.¹³ - And this same thing is valid for confessors of Conservatories, as is established from another Decree issued on March 18, 1649.¹⁴ Yet there are Authors who think that the Bishop can permit the confessor to continue beyond three years in his office, if other suitable priests are lacking.¹⁵

2. An Apostolic Indult being saved, the confessor of Nuns must be forty years old; nor are the Vicar of the Bishop, a Canon, or another Beneficed cleric obliged to choir, a pastor, or, if it is a question of Nuns subject to the Bishop and of the ordinary Confessor, a Regular priest, to be appointed to this office.¹⁶ Besides, only one confessor must be appointed for any monastery, as Benedict XIV expressly declared.¹⁷

3. The ordinary confessor is bound to go to hear the confessions of Nuns as often as he is called. - But let him beware lest he conduct himself as Superior of the monastery, since no authority of this kind belongs to him in any way. Thus the S. C. of Bishops and Regulars, September 7, 1797.¹⁸

1765. II. To Nuns, and to the novices themselves, an EXTRAORDINARY confessor is to be granted TWO OR THREE TIMES each year. This is established from Trent, sess. 25, cap. 10: "Besides the ordinary confessor, moreover, another extraordinary one, by the Bishop and other Superiors, is to be offered two or three times in a year, who must hear the confessions of all."

This statute was confirmed by Benedict XIV in the Bull Pastoralis issued August 5, 1748. In this same Bull it is prescribed: "that Nuns, although they are not bound to confess to the extraordinary, are nevertheless bound to present themselves to him, for hearing salutary admonitions. - Likewise, that Bishops observe this same thing, that is, establish the same law, with Conservatories. Likewise, that in the article of death there be granted by the Bishop to any Nun requesting it a particular confessor: and if the monastery is exempt, if the regular Prelate does not grant it, it is to be assigned by the Bishop, or, if the Bishop also refuses, by the Major Penitentiary, if time allows. - Likewise, that if some Nun refuses to confess to the ordinary confessor, another be appointed for her by the Bishop, for certain times; and if the monastery is exempt, by the regular Prelate, and if he refuses, it be granted by the Bishop or Major Penitentiary. - But the Pontiff exhorts Bishops not to be difficult in granting sometimes an extraordinary confessor to particular nuns requesting one. - Finally he establishes that regular Prelates of Nuns are bound two or three times in a year to assign an extraordinary one from those approved by the Bishop for confessions of Nuns, who, at least once in a year, is either a secular or of another Order; otherwise let the Bishop appoint him; and at that time the ordinary confessor is to hear the confessions of no one, neither of the abbess nor of the novices."¹⁹

The extraordinary himself, after completing his office, must not afterward go to the monastery, nor under any pretext continue commerce of any kind, under the penalties imposed on those going to Monasteries of Nuns and conversing with them²⁰ (cf. n. 2164).

IT IS ASKED. Whether Nuns living OUTSIDE THE CLOISTER or COMMUNITY enjoy full liberty concerning the choice of confessor?

Resp. When a Doubt was proposed in these words to the S. Congregation of Bishops and Regulars: "It is sometimes conceded to Nuns, either from a motive of health, or from another cause, that, retaining the habit, they stay outside the monastery for a brief time. Hence it is asked whether, in such circumstances of things, they can confess to confessors approved by the Bishop for each sex, although not approved for Nuns." The response was: "The Most Holy, in the Audience held on August 27, 1852, commanded that the reply be made: Affirmative, during the stay outside the monastery."²¹

For the time of Jubilee, see n. 1736.

1766. Jurisdiction is restricted either generally, so that Superiors alone, with all inferiors excluded, can absolve; or specially, so that the power of absolving is taken away from only one, but not from the other confessors. Sins of the former kind are very many, and are called RESERVED CASES; of the other kind there is only one sin, namely a base sin committed with the very ACCOMPLICE to be absolved. Hence there is a twofold paragraph: 1. On reserved cases. 2. On the forbidden absolution of an accomplice.

St. Thomas, q. 20, a. 1.

I. Jurisdiction can be limited to some persons, so that certain persons are excluded from the power and are not licitly, or even not validly, absolved. Thus, for example, in certain regions not all confessors, but only some, are customarily approved for the confession of women. In the new law certain prescriptions are established both for the confessions of religious and their novices and pupils, and especially for the confessions of religious women.

"3. Let superiors beware lest either they themselves directly or through another, by force, fear, importunate persuasions, or any other reason, induce any subject to confess sins before themselves."

Therefore: 1) In order that a superior licitly hear confession, provided it is not done habitually, a simple petition suffices.

2. A grave cause, besides spontaneous petition, is required for a superior to hear someone habitually, such as difficulty of confessing before other religious or of going out to find a confessor; nevertheless a grave cause is with difficulty present if the community is large and there are several confessors.

3. A simple petition of the subject is not a sufficient reason for hearing him habitually.

The prohibition regards superiors, not subjects; superiors are to be understood in the proper sense, but not the head of a filial house, minister, prefect of spirit, or bursar.

S. Th., Suppl., q. 20, a. 1.

587. Jurisdiction can be limited to certain persons, so that certain persons are excluded from the power and are not licitly, or even not validly, absolved. Thus, for example, in certain regions not all confessors, but only some, are customarily approved for the confessions of women.

In the new law certain prescriptions are established for the confessions both of religious and their novices and students, and especially of religious women.

LXXI. The same, Vol. I, On Condemned Propositions, tract 2, consultation, from no. 54, folio 97: “A priest, at least a regular, approved with a limitation for a certain kind of persons, or for this or that place, can by virtue of the Bull of the Crusade or of the Jubilee be chosen without limitation for Confessions by anyone whatsoever.”

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

Caius, the missionary Rector in a certain town, had Julius as his assistant in the care of souls. Julius, who had indeed been specially approved by the Bishop to hear the confessions of the Sisters called Sisters of Mercy, who had a house in the town, was absent for a certain week. On the customary day on which Julius was accustomed to hear their confessions, Caius, although not specially approved by the Bishop, moved by a recent discussion in a certain ecclesiastical periodical, went to the convent and heard the confessions of the nuns. When Julius learned after his return that the nuns’ confessions had been made to Caius, he maintained that they were to be repeated as invalid. Hence it is asked:

1. What is required in the minister of the sacrament of Penance?

2. What is specially required for hearing the confessions of nuns?

3. How do ordinary and delegated jurisdiction differ?

4. What is to be said of the case?

The first question was answered above, p. 169.

2. What is specially required in order to hear the confessions of nuns?

If a nun is lawfully outside her convent and makes her confession in a public Church, any confessor with ordinary diocesan faculties may hear her confession. If the confession is made in the convent, no priest can hear her confession unless he be specially approved by the bishop of the place for hearing nuns’ confessions in that particular convent. This has long been the discipline of the Church with respect to nuns with solemn vows. Provincial Councils (I West. d. XXVIII) and practice applied the same rule to nuns with simple vows. Diocesan faculties in England generally contain some such clause as the following: “ Of hearing the confessions of the faithful of either sex, but not of nuns or novices unless they are lawfully staying outside the cloister, nor, in monasteries or conservatories, the confessions of girls or women residing there.” Finally Leo ‘XIII decreed in his Constitution Conditae, Dec. 8, 1900: “ But if they are women's associations, the Bishop shall likewise designate priests for confessions, both ordinary and extraordinary, according to the norm of the Constitution Of Pastoral Care, issued by Benedict XIV, our predecessor, and of the decree In the Same Manner, issued by the Sacred Congregation set over Bishops and Regulars on 17 Dec. 1890; which decree indeed applies also to associations of men who are in no way initiated into sacred orders.”

3. How do ordinary and delegated jurisdiction differ?

“ Ordinary jurisdiction is the authority which is exercised in virtue of an office which one holds and in one’s own name; delegated jurisdiction is granted by one who has ordinary jurisdiction and is exercised in that person’s name.” 1

4. The case. Caius, a missionary Rector, had a 1 Manual of Moral Theology, vol. ii, 183.

coadjutor, Julius, who was specially approved by the bishop for hearing the confessions of the Sisters of Mercy who had a convent in the parish. While Julius was absent, Caius went and heard the confessions of the nuns, though he had no special approbation from the bishop. Some authorities hold that a parish priest, inasmuch as he has ordinary jurisdiction over all his flock, from which nuns with simple vows are not exempt, may hear the confessions of such nuns in their convent without special approbation from the bishop. Whatever may be said on this point, the doctrine can not be applied to Caius, who is not a parish priest, and who has only delegated jurisdiction. That jurisdiction was limited by the bishop and did not extend to nuns in their convent. However, as there was communis error, the absolution would probably be valid, as the Church would probably supply all that was wanted.¹

1 Manual of Moral Theology, vol. ii, 185.

1 Manual of Moral Theology, vol. ii, 141 f.