Chapter I: Jurisdiction

37. The Minister of the Sacrament with Ordinary Jurisdiction.

I. The Pope has _jurisdictio ordinaria_ over the whole Church. This requires no proof. The Vatican Council decreed that the jurisdiction of the Pope is a real episcopal jurisdiction, immediate and extending to all the faithful. Theologians discuss at length—and it is a question not to be omitted here—how it is that the Pope can give power to another to absolve himself (the Pope). Lugo discusses at length that there is no contradiction in the Pope delegating to another such jurisdiction over himself, and still less contradiction appears when we reflect that that jurisdiction _in foro sacramentali_, though exercised and delegated by the pastor of the Church, is always exercised in the name of Christ; nor is there anything absurd in the fact of the Pope as a private individual being subject to his own jurisdiction in his capacity as a public person. Though he cannot bind and punish himself, he may subject himself to another and share in the graces and privileges of the Church, otherwise he could not obtain absolution at all.[438]

II. By divine right, the bishops exercise _potestas ordinaria_ in their own dioceses, even _in foro interno_, subject, of course, to the authority of the Pope. Although every bishop receives his jurisdiction from the Holy See, the episcopal office is one of divine right and confers a definite jurisdiction, a very important section of which is the jurisdiction _in foro sacramentali_. As long as a bishop remains in office and in the exercise of it, he cannot be deprived of the power of absolving his subjects, though this power may be limited by reservations imposed by the Pope. A bishop may also, for grave reasons, be deprived of his office, or the exercise of it may be forbidden, or his jurisdiction taken away; and such is the effect of certain ecclesiastical censures.

III. By ecclesiastical law, all vicars-general, and _sede vacante_ vicars-capitular, have the same jurisdiction as the bishop over his diocese _in foro interno_. The jurisdiction, however, of the vicar-general is wholly dependent on that of the bishop, hence the saying: _Episcopi morte moritur Vicarius generalis_; and he has no other faculties than those which the bishop has attached to his office. If, for instance, a bishop by a special privilege of the Holy See has more extended faculties, these do not pass to the vicar-general unless the bishop transfers them to him with leave from the Holy See. During the vacancy of the episcopal see, the whole of the bishop’s faculties, with a few exceptions, are transferred to the vicar-capitular or administrator.

IV. By the law of the Church, parish priests have _jurisdictio ordinaria_ over their parishioners, and their power is measured by what the Church imparts to them as the constituted assistants of the bishop. In relation to their own parish they are _pastores proprii_, having only administrative power _in foro externo_, but _in foro interno plena jurisdictio subject_, of course, to such limitations as may be imposed by the Pope or their bishop. By his appointment (_collatione_) to a parish a priest acquires the right of hearing the confessions of his subjects. Nevertheless, the bishop has the right of examining his clergy periodically to make sure of their fitness to hear confessions.[439]

V. The Cathedral Penitentiary has also _ordinaria jurisdictio_ for the whole diocese in places where the office is established, and he may absolve all belonging to the diocese, even outside the boundaries of the diocese;[440] and this power is secured to him, not by any concession from the bishop, but by a law passed by the Council of Trent.[441]

VI. Others may, also, in virtue of the Church’s law, acquire _jurisdictio ordinaria_, and as a matter of fact it is enjoyed by _Prelati regulares_ with respect to their subjects, by Legates over their province. That of Cardinals over their churches is confined to very narrow limits. Those are regarded as subjects who have domicile or quasi-domicile within the parish or diocese; hence the jurisdiction of bishops and parish priests is primarily local and secondarily personal; that is, it extends to those who have their dwelling in a definite place. On the other hand, the jurisdiction of Regular Prelates is chiefly personal, and is confined to definite local limits only secondarily.

Since the Council of Trent excepts from the further approbation of the bishops only those priests who are in charge of a parish, a difficulty may occur as to the jurisdiction of priests who have no parish, but who exercise a definite _cura spiritualis_ over certain subjects. We must inquire first of all into the faculties which the Holy See has annexed to such offices, for since the Council emanated from the Holy See the latter is empowered to make exceptions. The question is of peculiar interest with regard to military chaplains, as to whether they can hear the confessions of soldiers in garrison without the approbation of the bishop of the diocese. No general rule can be laid down for all cases. Wherever a regularly appointed army-bishop or even a _Capellanus major_ exists, he generally receives the fullest faculties, not only for hearing the confessions of the soldiers himself, but also for appointing other priests or chaplains to that duty without consulting the bishop of the diocese;[442] otherwise no military chaplain may hear the confessions of soldiers in garrison without special powers from the Pope or the permission and approbation of the Ordinary.[443] Thus their faculties are confined to the soldiers when on the march or in camp.

All who have _jurisdictio ordinaria_ can receive the confessions of their subjects and absolve them wherever they happen to be, for such jurisdiction belongs to their office and accompanies them everywhere. Thus a parish priest can always hear the confessions of his parishioners whether he be within or beyond the bounds of his parish and diocese or not. A curate, chaplain, or other assistant priest cannot receive confessions outside the diocese, even if he have faculties for the whole diocese; to do so he would have to apply to the bishop of the diocese in which the penitent happens to be.

_De jure_ a parish priest is approved only for the territory of his benefice “_pro suo tantum oppido ubi sita sit parochialis ecclesia_,” according to the decrees of the S. C. C.[444] He may not, therefore, when in another diocese, hear the confessions of strangers (who are not his own subjects) without leave of the bishop of that diocese. Indeed, _per se_, he may not hear the confessions of strangers in another parish even of his own diocese. At the present day, however, it is the practice sanctioned either by law or by custom that parish priests and their curates may hear confessions anywhere within the diocese.[445]

In his own parish a parish priest may hear the confessions of any one who approaches him, even strangers, since he is the approved confessor in his own parish.

_Jurisdictio ordinaria_ is lost: (_a_) by loss of the office or benefice to which it is attached; (_b_) by excommunication or suspension if the censure carries the stigma “_vitandus_.” Other excommunications or suspensions impede only the licit exercise (_licitus usus_) of the powers.

38. The Minister of the Sacrament with Delegated Jurisdiction or Approbation.

I. All priests who have not _jurisdictio ordinaria_, but act only _ex jurisdictione delegata_, require for the licit and valid exercise of their office the approbation of the bishop of the place where they hear confessions, unless they enjoy some special privilege from the Holy See. The Constitution of Innocent XII, 9 Apr., 1700, “Cum Sicut,” is very explicit in this matter, as is also that of Innocent XIII, 23 Sept., 1723, “Apostolici muneris,” which was confirmed by Benedict XIV in his Constitution, 5 Aug., 1744, “Apostolica indulta,” in the following words: “No priest, whether secular or regular, may hear confessions without the approbation of the Ordinary of the diocese where the penitent dwells or sojourns, and it is expressly decreed that all privileges to choose a confessor from the clergy approved by the bishop are to be understood only as giving powers to choose any one approved by the bishop of the place where the confession is made.”[446]

Since the conferring of approbation is not an act of the _Ordo episcopalis_ but of episcopal jurisdiction, all who have ordinary episcopal jurisdiction can grant approbation, thus: (1) the bishop elect and confirmed, though not yet ordained; (2) the vicar-general since he exercises the jurisdiction of the bishop; (3) the vicar-capitular _sede vacante_, since he succeeds to the jurisdiction of the bishop; (4) vicars-apostolic who are appointed by the Pope in place of bishops; and (5) abbots who are not affiliated to a diocese.

The bishop may insist on an examination before granting approbation, though he may dispense with it since there are other means of ascertaining the fitness of a priest for hearing confessions.[447] Any priest whether secular or regular may be called on again for examination by the bishop, if the latter has not approved the candidate himself, although a former bishop may have done so. A confessor even approved by his own Ordinary may be examined if he has received approbation without undergoing examination. Those, however, whom the bishop has approved after an examination may not be reëxamined without a _justa causa_.[448] A bishop sins by refusing approbation to a competent priest, for all priests have a claim to approbation in virtue of their sacerdotal character, so that to deny it to a suitable candidate would be an infringement of his rights.

The approbation which is necessary for a valid absolution may not be presumed; it must be actually conferred and made known to the priest; for since there is question of the _validity_ of an act, only the faculties which the bishop has really conferred, not those which he will grant, can be considered. Hence when a priest applies for faculties he cannot hear confessions till he has received them, even when from his knowledge of the bishop he feels confident of receiving the faculties and knows that they are already on the way. The faculties may be acted upon when conveyed verbally by any trustworthy person.[449]

Approbation is required even before absolving from venial sins already confessed; after the decree of Innocent XI, 1679, we cannot any longer assume that the Church here supplies jurisdiction to the priest.[450]

A bishop in traveling may take with him any of his priests to accompany him as confessor; but if the priest is not a subject of said bishop (whether by domicile or quasi-domicile), he may not receive the confession of the bishop unless he be approved, as St. Alphonsus adds, by the bishop of the priest’s domicile (Fagnani and Lugo) or, as Scavini remarks, by the bishop of the place; the Congregation S. C. C. decreed so early as 1609 that a bishop outside his own diocese might confess only to a priest approved _ab ordinario loci_ (except, of course, when the priest is a subject of the bishop), so that Scavini’s decision is the norm to be observed in practice.[451]

Cardinals, papal domestic prelates, and royalty may choose any approved confessor and be absolved by him anywhere. Even in Rome itself Cardinals and bishops may choose for themselves and for their household any suitable priest as confessor and retain him with them for that purpose also when they leave the city.[452]

A bishop can give faculties for hearing confessions in his own diocese to a priest belonging to another diocese, for the latter _in ordine ad hoc opus_ is subject to the bishop of the diocese where the confessions are heard. This is the universal practice in the Church.

A parish priest cannot of his own authority give faculties to a priest of another diocese to hear the confessions of his own parishioners because the _jurisdictio ordinaria_ which goes along with the benefice extends only to the parish in his own charge. There is a custom, however, in many places among parish priests in outlying districts of the diocese to authorize the priest of a neighboring diocese to assist them in hearing confessions. This custom, which is recognized by the bishops, confers jurisdiction _ex tacita episcoporum approbatione_.[453] Thus many bishops have an explicit agreement by which approved priests of neighboring dioceses may assist one another in the confessional. Those who supply in another diocese, however, must pay attention to the cases reserved to the bishop in that diocese, since for the time being they are subject to him _in ordine ad hoc munus_.

II. Approbation may be granted without any limitations; the bishop may, if he wish, limit the approbation according to time, place, and persons, most certainly if the approbation include jurisdiction, for the whole subject is one of delegation and all delegation is regulated by the intention of the Superior. Even when approbation in the strict sense only is conferred the bishop may _ex rationabili causa_ confine it within a given time, a fixed place, or over a certain class of persons (children, men). The grounds for such a limitation might be, for instance, defects of ability, care, or study.

III. The bishop may not only impose limits in his approbation, but he may also recall it entirely, for all delegated authority exists only at the pleasure of the Superior; reasonable grounds must exist for such withdrawal if it is to be licit. It is a debated point among theologians whether withdrawal without any grounds is valid or not. The view that such withdrawal is invalid because it is an unjust deprivation of rights conferred, is certainly probable and maintained, among others, by Suarez, Lugo, and St. Alphonsus; but since it is not easy to establish the want of just grounds the view is of but little practical application; the bishop may be acting upon reasons which are unknown to his clergy, and while doubts remain, the presumption is always in favor of the bishop.[454]

IV. When the approbation is granted for a fixed length of time it ceases after that period; otherwise only by withdrawal; when given without any limitations it does not cease with the death of the giver, nor even when the recipient changes his domicile. This may be considered quite certain with regard to Regulars who have once received unlimited approbation.[455]

Regulars, on account of their privileges and dependence on the Holy See, are distinguished in many details from the secular priesthood with regard to jurisdiction.

V. The secular clergy receive jurisdiction and approbation either from their own bishop or from the bishop in whose diocese they are hearing confessions. Regulars receive jurisdiction from the Sovereign Pontiff through their Superiors, who must confer the jurisdiction as from the Pope, not like the bishops granting it on their own authority, but only as representatives of the Apostolic See. Besides this jurisdiction they must also have the approbation of the _Episcopus loci_; then as far as jurisdiction is considered they may absolve any one.[456]

Though all Regulars have jurisdiction from the Pope they cannot hear confessions without the approbation of the bishop, which may not be refused without just and reasonable motives; of these, however, the Regular is not the judge, and if he be refused approbation, he is effectually debarred from hearing confessions.[457]

Clement X imposed certain limitations on bishops with regard to the granting or refusing of approbation to the Regular clergy. He decreed:[458]—

1. That Religious who were proved capable of hearing confessions, should be permitted by the bishop to hear confessions anywhere in the diocese without restriction of time, place, or person; with regard, however, to those who were not so well prepared the bishop should be left to his own judgment in the matter of imposing restrictions.

2. Those who had once received approbation might hear the confessions of any of the faithful, even of the sick, without leave of the parish priest or even of the bishop, at any time of the year, including even Easter, within the diocese of the bishop who conferred the approbation; in cases where they had heard the confessions of the sick they should inform the parish priest, at least by a letter left with the sick person; the penalty for neglect in this matter being suspension from the right of hearing confessions. (The latter obligation is not enforced in missionary countries, where by general consent any approved priest may hear the confessions of the sick.)

3. Any Regular who has been approved by the bishop after examination and without any restriction cannot be called again for examination by his bishop (this does not hold when the faculties have been obtained from the vicar-general or the predecessor of the bishop), nor can he be suspended from hearing confessions; moreover he cannot even be deprived of his faculties unless for reasons connected with the Sacrament itself; the reasons for such objection need not be judicially proved, nor is the bishop obliged to communicate them himself to the Regular in question, but he must reveal them to the Pope if the latter insists on being informed of them. Hence in the whole process the Regular must act in submission to the bishop, and if he be convinced that he is treated unjustly, he may have recourse to the Holy See; in the meantime, however, his attitude must be one of submission.

4. Though a blameless life and unspotted morals are of the greatest moment in the ministers of this Sacrament ... no bishop can deprive a whole community of faculties on the ground of general unfitness, without consulting the Holy See.

Hence we conclude:—

1. Approbation is justly limited in the case of Religious who have not passed an examination.

2. Approved Regulars may be recalled for examination: (_a_) when they have received approbation without examination, (_b_) when after examination they have received only limited approbation; (_c_) when this approbation has been received from the vicar-general or the bishop’s predecessor, and this though the examination has been passed and unlimited approbation conferred; (_d_) when any reason is presented connected with the Sacrament itself; and this holds for those who after examination even have received the fullest approbation from the bishop himself.[459]

Except in the case of special legislation to the contrary on the part of the Holy See any Religious may receive both jurisdiction and approbation _ab Episcopo loci_, and at the present day that is the way in which bishops understand the conferring of approbation. This view solves the question of the validity of absolution given by a Religious without the knowledge or even against the will of his Superior.[460]

Moreover, Religious Superiors may receive from the bishop the power of imparting faculties to their subjects; the extent of the faculties must, of course, be ascertained. When, for example, the bishop gives general faculties, reserved cases are not included even when they are not expressly excepted.[461] When the bishop gives more extended faculties, as, for instance, on the occasion of a mission, and a Religious Superior imparts to his subjects these faculties for the mission, he is supposed to give _all the faculties_ which he has received from the bishop, because he is then acting only as the bishop’s mouthpiece unless, of course, he states the contrary. When, again, the bishop gives faculties for a special object they are not to be used for anything beyond that object; it is another question when some special work is seized upon only as an occasion for asking and giving faculties.[462]

VI. Strangers (_peregrini_), _i.e._ those who are not in the diocese of their domicile or quasi-domicile, may be absolved by a Religious without any difficulty as subjects of the Pope (from whom the Religious presumably receives _jurisdictio delegata_); they may also in virtue of an old and approved custom in the Church be absolved by any other confessor. This is the unanimous verdict of all theologians, though there is diversity of opinion as to the theory which justifies the practice of secular priests in this matter, nor is the manner of solving the question an indifferent matter; if, for instance, a stranger is absolved in virtue of the jurisdiction which _his own_ bishop confers on the priest, the bishop can absolutely forbid him to seek absolution from a strange priest by declaring such absolution invalid; (this, of course, applies to secular priests; with regard to Religious confessors there is no difficulty).[463] Thus on the solution of this question depends the power over cases reserved in another diocese. Some theologians now maintain that the jurisdiction of a priest over a stranger is based on the tacit consent[464] of all the bishops, while others hold that it is a universal custom of the Church having the force of law.[465] But neither the _consensus Episcoporum_, nor _consuetudo_, even when the latter has the force of law, can convey jurisdiction if we are to follow the teaching of the Church; we must suppose, then, that the propounders of such a view meant to state it thus: the Church, _i.e._ the Pope, either makes the _Episcopus loci_ an _Episcopus peregrinorum_, or he delegates _his own_ jurisdiction to all confessors. Since the first view is hardly possible, they are forced to the conclusion that the Pope, either by express or legal consent to the universal custom, grants to all approved confessors a delegated jurisdiction to absolve strangers. It is beyond all doubt that this view is probable especially when we add the weight of St. Alphonsus’ authority. The case, however, is not quite certain, for the existence of the custom seems to prove no more than that the _bishops themselves_ as a rule give a tacit consent to the arrangement, and it does not prove that the bishops are obliged to agree _in every case_ to this arrangement, or that their power over a subject is withdrawn by the fact of his occasionally leaving the diocese; and it still remains to be proved that the Pope so entirely approves of the practice as to consent to break through the natural order of things by which all authority is communicated through immediate Superiors, not directly from the fountainhead; at the same time it is beyond all question that the Pope can if he so wishes empower any secular priest to hear the confessions of _peregrini_; and if a bishop were without any pressing reason to forbid his subjects to confess outside their own diocese, the Holy See could always be petitioned to apply a suitable remedy for such a prohibition, since under the present condition of things there must always be many people living outside of their own diocese.[466]

Other theologians teach that _peregrini_ by the very fact of presenting themselves at the tribunal of penance in another diocese become subjects of the _Episcopus loci_ or of the priest who derives his faculties from him, and this _ex universali consensu quem P. M. Eugenius IV approbavit_.[467] But does the wish to receive the Sacrament make the _peregrinus_ a subject of the bishop or the bishop his superior? Whoever maintains this and grants that the _Episcopus loci_ is not the bishop of the _peregrinus_, states in other words that one who is not actually a superior may be judge _in foro interno_. But is such a statement in accordance with divine right? In any case the _peregrinus_ remains the subject of the bishop of the diocese in which he has domicile or quasi-domicile, and no proof can be adduced that the bishop of the place in which the _peregrinus_ makes his confession has, by virtue of his office, power to absolve him; he can do that only when he is superior in right of his office, and he can be superior only when he is the bishop of the _peregrinus_, since human and divine law recognize no other ecclesiastical superior than Pope, bishop, parish priest, or their substitutes. But no one would maintain that the _Episcopus loci_ is the true bishop of the _peregrinus_.

Finally, other theologians explain the jurisdiction of the secular priest over _peregrini_ in this manner: that the bishop of the _peregrinus_ grants tacitly the faculties to every approved priest and is generally obliged to do so.[468] The ecumenical synods of Florence, Trent, and the Lateran declare that the absolution granted by any other than one’s own Ordinary is invalid unless leave be obtained from him. Now such a permission is either a direct or indirect imparting of jurisdiction; hence every absolution is invalid which is given without jurisdiction from the bishop of the penitent. It is on this ground that theologians and canonists alike, whether of the older or more recent school, insist upon the necessity of a consent on the part of the Superior or bishop of the penitent in the case of confessions made outside his own diocese. Ballerini (l. c. Dissert. n. 33 ss) concludes his learned investigation of this question in answer to the objections of the _Vindiciæ Alphonsianæ_ with the following propositions, which are not mere speculative conclusions, but are in fact the teaching of the Church, resting as they do on the very essence and nature of the Sacrament as solemnly explained and defined by the Holy See and ecumenical councils: (1) in order to absolve a _peregrinus_, faculties must be granted by one who has ordinary jurisdiction over the penitent; (2) the existence of the custom of absolving _peregrini_ outside their diocese neither conveys nor can convey the necessary jurisdiction; (3) jurisdiction is given by approbation or consent (express or tacit) or leave (implicit or explicit) of the Ordinary or of the particular pastor of the _peregrinus_; (4) this approbation or consent includes the imparting of jurisdiction to the confessor chosen by the _peregrinus_; (5) a sufficient indication of this consent exists in the tolerance of a custom with the knowledge of the bishop and without any remonstrance on his part; (6) the delegation of jurisdiction depends on this consent in such wise that the pastor of souls may, at his own option, retract his consent, thus abolishing the custom and withdrawing entirely the power to absolve his subjects. All these statements are incontrovertible.

Hence since a penitent can be absolved by his own bishop or by the delegate of the latter, since the bishop of the _peregrinus_ remains his superior in spite of the penitent being in another diocese transitorily, the latter can be absolved only in virtue of power granted tacitly by his own bishop.[469]

VII. As _Vagi_ have no fixed domicile, their spiritual superior is the Pope, and by virtue of his express or tacit delegation they may be absolved by any approved confessor wherever they happen to be; but they cannot be absolved by any but those approved for the place where the confession is made.

It will be asked: Who is to give approbation for absolving travelers on the sea? This point has been settled in a very simple manner by a recent decree of the Congregation of the Inquisition. Any priest, approved by his Ordinary, may hear the confession of his fellow-travelers while the voyage is in process, though they pass through or stop off for a time in the territory of another bishop.[470]

39. Jurisdictio Delegata Extraordinaria, or, the Supplying of Deficient Jurisdiction by the Church.

There is another kind of jurisdiction, viz.: when the Church makes good the deficiency of delegation; here jurisdiction is conveyed “_supplente Ecclesia_.”

Let it be remarked at the outset that it is by no means permissible to perform any act for which jurisdiction is necessary—therefore to give absolution—when the absence of jurisdiction is certain, even if the Church should supply to insure validity of the act. When jurisdiction is doubtful, it may be allowable to perform the act, especially if the Church really does supply. Before discussing the matter itself we must explain what is meant by the axiom: “The Church makes good deficient jurisdiction.” The meaning of it is this: the Church, or the highest judicial authority of the Church, confers, in an exceptional manner, jurisdiction for individual acts, and the Church does this for the general welfare _in ipso actu_, that is, in the performance of the act itself.[471] There is, accordingly, a great difference between the jurisdiction which a man actually possesses, and that which he exercises “_supplente Ecclesia_.” In the first case I possess the jurisdiction before I begin the act, before I hear the confession, or perform any other act for which jurisdiction is required; indeed, I possess it in most cases _habitualiter_. I possess it also when the act is completed. But he who absolves or performs any other function _supplente Ecclesia_ receives the jurisdiction only when the action has already begun—in this case when he is about to pronounce absolution—in order that he may carry to its end the confession which has begun; the action once completed,—in this case the absolution being pronounced,—he has no further jurisdiction. When, therefore, previous to an action, a priest already _probabiliter_ possesses jurisdiction, the Church, if she supplies, must do so only conditionally, upon the presumption that he possessed no jurisdiction; that is, when that jurisdiction which he was believed to have was as a matter of fact not existing.

The Church supplies deficiency of jurisdiction:—

1. When one who exercises a power possesses a _titulus coloratus_ for this power, and when, at the same time, the error is general amongst the faithful, in such sort that the absence of real power is mostly unknown. A _titulus coloratus_ (apparent title) is one that is in itself false, but yet really exists; that is, one which has been conferred by lawful authority and, therefore, bears the appearance and outward form of a true title, even when, for some cause or other, it is void by an essential defect.[472] The supplying action of the Church in this case is based upon the right itself which she has conferred and ratified; this is the teaching of all theologians.[473] The Church, they say, supplies as a good mother in the interest of the welfare of souls.[474]

2. When there is no _titulus coloratus_ but only _error communis_,[475] many theologians are of opinion that the Church supplies in this case also for the general welfare.

St. Alphonsus adopts this opinion as probable, because the Church supplies for defective jurisdiction more with a view to the common good than out of consideration for the title.[476] It will scarcely, however, be possible to assign to this opinion a real and substantial probability; a number of theologians are indeed in favor of it, but not a few of considerable repute are opposed to it (Lugo, Sanchez, Lessius, and others). It is, therefore, canon law which must decide the question, the more so, as we have not to do directly with what may be allowed or not, but with the positive conferring of, possibly, non-existent jurisdiction. Now what is to be gathered from the canon law on this point seems plainly opposed to the more lenient view given in a decision of the S. C. Conc. of 11 December, 1683, which Benedict XIV[477] cites to settle the question. The matter remains, therefore, doubtful. The harm, however, which can result from the negative opinion is not very great, as a confessor cannot long exercise his office without title, and such harm is made good by subsequent communion or confession. Several theologians, moreover, rightly maintain that the faithful are not bound in this case to repeat those confessions which they have, _bona fide_, made to a priest, who, _ex communi errore_, passed for a confessor.

3. But when there is question not of _error communis_ but only of _error privatus_ in a few persons, the Church certainly does not supply the defective jurisdiction, because here the _bonum commune_ is not at stake.[478]

From this it follows:—

1. That it is not allowed knowingly to make use of a power arising only from an “apparent” title, although the Church should positively supply; but he who is not aware of the defect of his title—this title being in reality only an apparent title—has nothing to rectify subsequently, as his actions were valid (_supplente Ecclesia_).

2. Still less is it allowable for one who knows that he possesses neither power nor title to act on the ground of general error; in the first place, because he assumes a power which he does not possess, and because, moreover, he exposes to danger those who are most interested in the validity of his actions.

Connected with the above is the question: does _jurisdictio probabilis_ or _dubia_ suffice for the valid and lawful administration of absolution. The question turns only on _probabilitas juris_, a solidly probable, though not necessarily certain, interpretation of the law declaring that jurisdiction is possessed. This may occur with regard to the questions: whether the jurisdiction possessed extends to this or that case, to this or that person? or, whether the jurisdiction once possessed has been revoked?

But a jurisdiction is doubtful when the uncertainty of it rests upon a doubt or a probable _fact_. Upon this distinction between probable and doubtful jurisdiction we must insist. St. Alphonsus[479] does so, and that chiefly in order to show that, in the case of a _dubium facti_,—thus, doubtful jurisdiction,—the faculty for the exercise and the validity of the act (here of absolution) _always_ remains _doubtful_, whereas, in the case of _probabilitas juris_, the validity of the action after it has been performed is morally certain. When such probable jurisdiction (_probabilitas juris_) is in question, it is, as St. Alphonsus teaches, morally certain that the Church confers jurisdiction, if it has previously (_antecedenter_) been wanting. The saint calls this teaching _communissima_, and demonstrates it by the fact that the Church, in the person of her chief pastor, tacitly tolerates the old custom of absolving with such jurisdiction, and thus sufficiently expresses her consent.

With regard to the _jurisdictio dubia_, however, the contentions of many authors are not of this nature.[480] If many are of opinion that the Church supplies in this case also, and base their opinion upon the fact that the Church supplies when there is only _error communis_ and not _titulus coloratus_, we need but refer to what has been previously said upon this head.[481]

According to this it is morally certain that the Church, in the case of previous _juris probabilitas_, supplies _jurisdiction_. But if the jurisdiction is doubtful on account of a _dubium facti_, the Church does not supply if the error exists only with a few; as the error is usually general, it remains doubtful whether the Church supplies. It is not always wrong to use doubtful jurisdiction in administering the Sacrament of Penance, particularly when the reason for it is pressing, when absolution is urgently necessary, and when it would be better to absolve with doubtful validity than not to absolve at all. But in this case it would always be necessary to instruct the penitent as to the value of the absolution administered.

According to the teaching of St. Alphonsus, absolution may be administered with a doubtful jurisdiction in the following cases: (1) When the obligation of yearly confession must be fulfilled exactly at that time; (2) when the penitent must say Mass or communicate, and this cannot be omitted without bringing upon himself disgrace; (3) when the priest must say Mass in fulfilment of his duty. In these cases a priest possessing only doubtful jurisdiction may absolve conditionally when no other confessor is at hand.[482] But the saintly Doctor[483] remarks that, in this case, the confessor would be bound to inform the penitent who had accused himself of mortal sin that he had been only conditionally absolved, so that if afterwards it should become manifest that the confessor really possessed no jurisdiction, the penitent might fulfill his duty of confessing his sins again.[484]

In order to absolve with probable jurisdiction, a legitimate reason is necessary and this exists: (1) When the penitent stands in special need of the help of this particular priest; (2) when the accomplice of the penitent is known to the confessor who possesses certain jurisdiction, but unknown to him who possesses only probable jurisdiction; (3) if the penitent were under an urgent obligation of confessing, if a particular indulgence were to be gained, if the penitent would not be able to confess for a long time, and a priest with certain jurisdiction were not at hand.[485]

A special case in which the Church supplies deficient jurisdiction is _in articulo mortis_.

The necessary jurisdiction for the absolution of dying persons is conferred by the Church upon any priest, when no approved confessor is at hand, so that any priest may absolve dying persons from all sins.[486]

An approved priest is considered not to be present, not only when he is bodily but also morally out of reach; that is, in the following cases: (1) When the approved priest who is present does not wish to hear the confession of the dying person or cannot hear it, for in such a case he would be practically absent; (2) when he is excommunicated or suspended;[487] (3) if an approved priest should arrive when the confession to the unapproved priest has already begun; (4) if an approved priest were _complex_ of the dying person _in peccato turpi_;[488] (5) if this priest is so displeasing to the sick person that the latter would be in danger of sacrilegious confession; there would then be danger of the soul of the sick person being lost, a risk which it was the intention of the Council of Trent to obviate.[489]

What has been said above concerning the administration of absolution _in articulo mortis_ stands good also for its administration _in quolibet gravi periculo mortis_.[490] For the two situations are generally considered as identical; moreover, the Ritual says: “When danger of death threatens;” besides there is a divine precept to confess when there is danger of death also, and thus there arises a case of necessity.

A grave _periculum mortis_ is considered to exist: (1) In a dangerous illness; (2) in times of plague; (3) at a difficult birth; (4) before a very difficult surgical operation; (5) in battle, or shortly before it; (6) before a very dangerous sea voyage, etc.[491]

40. The Administration of the Sacrament of Penance to Members of Religious Orders.

Hitherto we have treated of the powers necessary to the ministers of the Sacrament of Penance—secular and regular priests—in order that they may validly and lawfully hear the confessions of lay people (_seculares_). It remains now to discuss the regulations laid down by the Church concerning the jurisdiction over men and women belonging to Religious Orders emitting _vota solemnia_.

I. The Superiors of Religious Orders, or the local Superiors, although they possess full jurisdiction over their subjects _in foro interno_, are bound to appoint others as confessors, so that the subjects may not be obliged to confess to their own Superiors; it is only in certain definite cases that a subject is bound to go to confession to his Superior. The inmates of a religious house may indeed confess to their Superiors, and the latter must hear their confessions; but this must be left to the option of the subordinates. One or more confessors may, however, be nominated in the individual houses, so that no religious can validly confess to any other but these; unless a confessor has received special powers for this purpose from the Holy See or from the Roman Penitentiary.[492] Only when a Jubilee occurs and usually once may Regulars choose as confessor a priest out of those approved by the _Ordinarius_, in order to gain the Jubilee indulgence. Several confessors are generally nominated so that the subjects may have a choice from among them.[493]

II. Confessors for Regulars receive their jurisdiction from the Superiors of the latter. Not only priests belonging to Religious Orders, but also secular priests (even those who have not been approved by their bishops), may be empowered by Superiors to act as confessors to their subjects, unless this be forbidden by the constitutions of the Order.[494]

This faculty belongs to Superiors of Religious Orders by common law, since, by virtue of their exemption from episcopal jurisdiction, they possess _quasi-episcopalem jurisdictionem_ over their subordinates. The Council of Trent has altered nothing in this matter, as it speaks only of the jurisdiction or approbation necessary for the confessions of lay people; moreover, Clement VIII has expressly granted this faculty to Superiors of Orders. The confessor of Regulars can absolve those for whom he is appointed confessor, even outside the monastery, as this jurisdiction is not limited to a definite place, and no further approbation of the bishop is necessary.

Regulars who are on a journey or staying outside their monastery must confess to a member of their Order who is near them, even when the latter is not otherwise appointed for confessions; if, however, they have no opportunity of confessing to one of their Order, they may do so to any other regular or secular priest. This priest (according to the _sententia communissima_, which St. Alphonsus considers the more probable) need not even be approved by the _Episcopus loci_,[495] as it is presumed that the Order, or its Superior, confers in such a case delegated jurisdiction upon any priest whom the religious has chosen for his confessor.[496]

III. Those who can be validly absolved only by a priest authorized by a Superior of an Order are: not only the religious and their novices, but also lay persons, who, as really belonging to the monastic community, live in the monastery or college; servants, for example, and others who regularly live and take their meals in the monastery.[497]

IV. As regards the question whether priests of an Order, by virtue of the authorization of the Superiors of their Order, may also hear the confessions of the inmates of their monasteries intrusted to them for education, theologians do not agree. Some, amongst whom are Gury (n. 564), Lehmkuhl (n. 394), Marc (n. 1763, Q. 2), and Aertnys (n. 232), admit it, pointing out certain Orders to which this has been expressly permitted, and in this privilege (these authorities maintain) the other Orders participate. St. Alphonsus is also of this opinion (583), appealing to Bordone; also Mazzotta (l. c.), Lugo, Schmalzgrueber, and others. Lehmkuhl calls this opinion probable and says: We may, therefore, act according to the principles discussed above concerning probable jurisdiction. However, this does not seem to be generally admissible. For no law accords to Regular priests a general privilege of this kind. The extension to all other Orders of a privilege granted to some is not allowable here, for this privilege derogates from the rights of a third party, in this instance the bishop and the parish priests; and it is clear from the decisions of the sacred congregations that unlimited jurisdiction over their students does not belong to Regulars.[498]

On the other hand, Regulars possess jurisdiction over their students: (1) When this jurisdiction is explicitly conferred upon an Order or educational establishment; (2) when the religious have acquired it by legitimate custom; (3) when there is question of religious in the sense that, according to the ordinances of the Council of Trent, the students can be designated as belonging to the household. This latter, however, is not the case when the house in which the educational establishment is situated is not actually the monastic building, or when the members of the Order and the students do not form an association of the nature of a family. Nor can those pupils be regarded as belonging to the household who pay for their board, and are yearly received into the educational establishment or seminary. But as the matter is a difficult one and difference of opinion prevails amongst theologians, Bouix suggests as a practical solution the removal of such boys or girls from parochial control.[499]

41. Jurisdiction and Approbation for the Confessions of Nuns.

What we are about to say concerning nuns refers to nuns in the strict sense of the word, namely, to such as have taken solemn vows and are bound by the regulations of the inclosure, but not to the religious congregations which have no inclosure, nor, in general to such nuns as, with permission of their Superiors, are living outside the convent.[500]

The bishop can except from the general approbation any religious female congregation, and if he has done so, the confessors must act conformably. In most dioceses the regulations of the Church concerning confessors of nuns—both ordinary and extraordinary confessors—are extended to the female congregations also which take only simple vows, and are not bound to strict inclosure. This discipline is, in fact, very good, and quite in conformity with the intention of the Holy See.[501]

The following regulations are in force with regard to the confessors of nuns:—

I. Not every priest approved by a bishop can hear the confessions of nuns, but only one who has received special approbation and jurisdiction for the purpose from the _Episcopus loci_. Indeed, the priest approved for one convent cannot _valide_ hear the confessions of the nuns of another convent, unless he be generally appointed for the confessions of nuns.[502]

II. The confessors of exempted nuns also require the approbation of the bishop, but they are chosen and appointed by the Superiors of the Orders to whom they (the exempted nuns) are subject; and if these Superiors themselves wish to hear the confessions of the nuns who are subject to them, they must likewise obtain the approbation of the bishop. It is only when the nuns obey Superiors with _quasi episcopal_ jurisdiction that their confessor does not require the approbation of the bishop.[503]

III. According to the declaration of Clement XI the confessors of nuns should not only be learned, prudent, and pious, but also of mature years.[504] The bishop must, therefore, take care that a confessor be chosen in whom the nuns may have confidence.

Without Papal authorization vicars-general, canons, and others who are bound to observe choir in virtue of a benefice, also parish priests (when the care of souls would materially suffer thereby), cannot discharge the office of an ordinary confessor. This applies also to priests of a Religious Order with regard to nuns who are immediately subject to the bishop. The former may, however, exercise the office of extraordinary confessors. The ordinary confessor must hear the confessions of nuns as often as it is reasonably demanded of him. Moreover, he must not conduct himself as a Superior of the convent, since, according to the decree of the S. C. Ep. et Reg. 7 Sept., 1797, such authority does not belong to him.[505]

The confessor appointed for nuns shall not discharge his office longer than three years, and cannot, at the expiration of this period, hear confessions in the same convent without permission of the S. C. Ep. et Reg.[506] Several authorities, however (St. Alphonsus, Bouvier, Gury, Scavini), remark that the bishop may allow the confessor to exercise his office longer than three years when other suitable priests are wanting.

At the time of a Jubilee, nuns, like Regulars, may, in order to gain the Jubilee indulgence, _once_ choose for themselves any confessor from amongst priests approved by the _Episcopus loci_ for hearing the confessions of nuns either in general or for a particular convent.[507]

IV. The bishops, or Superiors of Orders, who are authorized to appoint and choose the ordinary confessor, are bound to appoint an _extraordinary_ confessor for the nuns subject to them two or three times a year.

Although the nuns are not bound to confess to this extraordinary confessor, they must, nevertheless, all repair to him, be it either to make a sacramental confession or to receive from him wholesome exhortation.[508]

The following is to be observed regarding the _Confessarius extraordinarius_:—

1. Although the Tridentine Session here speaks of inclosed nuns only (_moniales claustrales_), Benedict XIV wishes the appointment of the extraordinary confessor to be extended to all communities of nuns who have only an ordinary confessor appointed by the Superiors.

2. The choice of the extraordinary confessor belongs to the _Ordinarius loci_ for those convents which are under him, and to the Superior of the Order for those for which the latter appoints the ordinary confessor; every extraordinary confessor must have special approbation as such from the bishop. The Superiors of Regulars, however, cannot always appoint a priest of their own Order, but must at least, once a year, choose a secular priest or one of another Order. If the Superior of the Order neglects to choose an extraordinary confessor, the bishop must do so; should the bishop neglect this duty, the Cardinal Grand Penitentiary must act.

3. During the time when the extraordinary confessor is exercising his office in a community, the ordinary confessor may not remain in the community to hear confessions.

4. The extraordinary confessor may not be refused to individual nuns in case of serious illness or invincible reluctance towards the ordinary confessor. The case of a nun in danger of death being refused an extraordinary confessor is provided for in the decree of the Tridentine Session, XIV. cp. 7: _in articulo mortis omnes sacerdotes quoslibet pœnitentes ... absolvere posse_. But should a nun wish to confess occasionally to a particular confessor, not out of fickleness, or imprudent preference, but truly on account of her spiritual advancement, it is advisable that the Superiors should not oppose such wish.[509]

Extraordinary confessors, nominated by the bishop for _a single occasion_, can only discharge this office once. They must be approved by the bishop as often as they have to discharge the office of extraordinary confessor,[510] unless they have a general approbation for the confession of nuns.