jurisdiction in the sacrament of penance - a canonical-theological schema

77
KATHOLIEKE UNIVERSITEIT LEUVEN FACULTEIT KERKELIJK RECHT FACULTY OF CANON LAW JURISDICTION IN THE SACRAMENT OF PENANCE: A CANONICAL – THEOLOGICAL SCHEMA A Thesis Presented in Partial Fulfillment of the Requirements for the Degree Master of Society, Law and Religion Promoter by Prof. Dr. Rik Torfs Noel Travis Rankin II 2011

Upload: sarah-rankin

Post on 18-Apr-2015

37 views

Category:

Documents


1 download

TRANSCRIPT

Page 1: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

KATHOLIEKE UNIVERSITEIT LEUVEN

FACULTEIT KERKELIJK RECHT

FACULTY OF CANON LAW

JURISDICTION IN THE SACRAMENT OF PENANCE:

A CANONICAL – THEOLOGICAL SCHEMA

A Thesis Presented in Partial Fulfillment

of the Requirements for the Degree

Master of Society, Law and Religion

Promoter by

Prof. Dr. Rik Torfs Noel Travis Rankin II

2011

Page 2: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

ACKNOWLEDGEMENTS

I am greatly indebted to the encouragement and support of many generous souls who

have helped bring this work to completion. In the first place I wish to acknowledge my family

who has tarried long and hard right along with me throughout this past year. To my wife, Sarah,

I simply could not have finished this project without the many sacrifices you have made. Thank

you for your unfailing confidence in me and for all the hot teas to keep me going. To my

children, Isaac and Sophia, thank you for your unconditional love and for cheering your dad on

like only his biggest fans could. To my family and friends back home in Kentucky, I am

convinced that any measure of good which has come from missing you has been poured into

these pages. Last but not least, I would like to acknowledge a doctor of canon law without

whom my research into this topic would have been greatly impoverished. A sincere thank you to

Father Anzelm Szuromi for his guidance and for allowing me access to the Library of the Faculty

of Theology at Pázmány Péter Catholic University in Budapest. It was truly my home away

from home during these last months.

i

Page 3: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

TABLE OF CONTENTS

ACKNOWLEDGEMENTS i

TABLE OF CONTENTS ii

BIBLIOGRAPHY iv

INTRODUCTION viii

CHAPTER I. HISTORICAL ANTECEDENTS FOR PENITENTIAL

JURISDICTION 1

1.1 LESSONS IN AUTHORITY AND SACRAMENTALITY –

CYPRIAN AS MODERATOR OF THE PENITENTIAL DISCIPLINE 1

1.2 A RECONCILIATION “NULL AND VOID” 4

1.3 THE RISE AND INFLUENCE OF THE IRISH PENITENTIALS 6

1.4 THE PENITENTIAL LITERATURE – A PARADOX FOR 9

JURISDICTION

CHAPTER II. PENITENTIAL JURISDICTION IN THE HIGH

MEDIEVAL PERIOD 12

2.1 COMPETING TRENDS IN ECCLESIOLOGY AND THE CONFLICT

OF JURISDICTION 12

2.2 PROPRIO SACERDOTE – THE CONTRIBUTION OF LATERAN IV 14

2.3 THE PRIEST-CONFESSOR AS DOCTOR AND JUDGE 17

2.4 THE JURISDICTION OF THE MENDICANT ORDERS AFTER

LATERAN IV 19

CHAPTER III. PENITENTIAL JURISDICTION AT THE COUNCIL

OF TRENT 22

ii

Page 4: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

3.1 THE COUNCIL OF TRENT IN CONTEXT 22

3.2 THE TRIDENTINE LEGISLATION ON PENITENTIAL

JURISDICTION 26

3.3 THE INSTITUTE OF EPISCOPAL APPROBATION 29

3.4 MELCHIOR CANO'S ARGUMENT EX DIVINI INSTITUTIONE 32

CHAPTER IV. PENITENTIAL JURISDICTION IN THE 1917 CODE

OF CANON LAW 36

4.1 THE REQUIREMENTS OF THE MINISTER 36

4.2 ORDINARY JURISDICTION: ACQUISITION, EXTENT AND

CESSATION 38

4.3 DELEGATED JURISDICTION: ACQUISITION, EXTENT AND

CESSATION 41

4.4 THE DELICT OF HEARING CONFESSIONS WITHOUT

JURISDICTION 44

CHAPTER V. PENITENTIAL JURISDICTION IN THE 1983 CODE

OF CANON LAW 47

5.1 THE INFLUENCE OF VATICAN II ON THE DOCTRINE OF

PENITENTIAL JURISDICTION 47

5.2 PENITENTIAL JURISDICTION AS DISTINCT FROM THE

POWER OF GOVERNANCE 51

5.3 SELECTED NORMS ON THE PENITENTIAL FACULTY 56

5.4 THE ELEVATION OF THE OFFENSES MENTIONED IN

C. 1378 § 2, 2° TO THE STATUS OF GRAVIORA DELICTA 63

CONCLUSION 67

iii

Page 5: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

BIBLIOGRAPHY

REFERENCE WORKS AND BOOKS CONSULTED

Acta Apostolicae Sedis: commentarium officiale. Romae: Typis Polyglottis Vaticanis, 1909

Beasley-Murray, G., John (World Biblical Commentary, 36), Waco, Word Books, 1987

Bévenot, M., St. Cyprian, The Lapsed (Ancient Christian Writers, 25), Westminster, Newman

Press, 1957

Burtsell, R., (ed.), The Catholic Encyclopedia, New York, Robert Appleton Company, 1907

Caparros, e., (ed.) et. al., Code of Canon Law Annotated: Second edition revised and updated of

the 6th Spanish language edition, Montréal, Wilson & Lafleur, 2004

Clarke, G.W., The Letters of St. Cyprian of Carthage (Ancient Christian Writers, 44), New York,

Newman Press, 1984

Corecco, E., Borgonovo, G. & Cattaneo, A., Canon Law and Communio: Writings on the

Constitutional Law of the Church, Città del Vaticano, Libreria editrice vaticana, 1999

D'Alès, A., La Théologie De Saint Cyprien, Paris, G. Beauchesne, 1922

Denzinger H., (ed.), Enchiridion Symbolorum. The Sources of Catholic Dogma, St. Louis,

Herder, 1957

Flannery A., (ed.), Vatican Council II: The Conciliar and Post-Conciliar Documents,

Wilmington, Scholarly Resources, 1975

Friedberg, A., (ed.), Corpus Iuris Canonici editio Lipsiensis secunda post Aemilii Ludouci

Richteri, Graz, Akademische Druck- u. Verlagsanstalt, 1955

Halsall, P., Internet Medieval Sourcebook, New York, Fordham University City for Medieval

Studies, 1996

Hartmann W. and Pennington K. (eds.), The history of medieval canon law in the Classical

Period, 1140-1234. From Gratian to the Decretals of Pope Gregory IX, Washington,

Catholic University of America Press, 2008

Innocent III, De Sacro Altaris Mysterio Libri VI, S.I., Sylvæ-Ducum, 1846

iv

Page 6: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

International Commission on English in the Liturgy, Emendations in the Liturgical Books

Following upon the New Code of Canon Law, Washington, ICEL, 1984

Kelly, J., The Jurisdiction of the Simple Confessor, Canon Law Studies no. 43,

Washington, Catholic University of America Press, 1927

Marzoa, a., Miras j. & Rodríguez-Ocana, R. (eds.), Exegetical Commentary on the Code of

Canon Law, Montréal, Wilson & Lafleur, 2004

Miaskiewicz, F., Supplied Jurisdiction According to Canon 209, Canon Law Studies no. 122,

Washington, Catholic University of America Press, 1940

McCartney, M., Faculties of Regular Confessors, Canon Law Studies no. 280, Washington,

Catholic University of America Press, 1949

McNeill J. & Gamer H., Medieval Handbooks of Penance: A Translation of the Principal "Libri

Poenitentiales" and Selections from Related Documents, New York, Columbia University

Press, 1990

Migne, J.P., Patrologiae Cursus Completus: Series Latina. Sive, Bibliotheca Universalis, Integra,

Uniformis, Commoda, Oeconomica, Omnium SS. Patrum, Doctorum Scriptorumque

Ecclesiasticorum Qui Ab Aevo Apostolico Ad Usuque Innocentii III Tempora Floruerunt.

Parisiis: excudebat Migne, etc, 1844

Murphy, G., Delinquencies and Penalties in the Administration of the Sacraments, Canon Law

Studies no. 17, Washington, Catholic University of America Press, 1923

Newman, W., Jus Divinum and the Sacrament of Penance in Two Tridentine Theologians:

Melchior Cano and Ruard Tapper, Studies in Sacred Theology no. 206, Washington,

Catholic University of America Press, 1969

Ordo Penitentiae rituale Romanum ex decreto sacrosancti Oecumenici Concilii Vaticani II

instauratum auctoritate Pauli PP. VI promulgatum, Città del Vaticano, Typis Polyglottis

Vaticanis, 1974

Payer, P., Sex and the New Medieval Literature of Confession, 1150-1300, Toronto, Pontifical

Institute of Mediaeval Studies, 2009

Peters, E., (ed.), The 1917 or Pio-Benedictine Code of Canon Law in English Translation with

Extensive Scholarly Apparatus, San Francisco, Ignatius Press, 2001

Pontificia Commissio Codici Iuris Canonici Recognoscendo, Schema Documenti Pontificii Quo

Disciplina Canonica De Sacramentis Recognoscitur, Città del Vaticano, Typis Polyglottis

Vaticanis, 1975

v

Page 7: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Richardson, W., The Validity of the Sacrament of Penance as Administered by the Priests of the

Society of St. Pius X (unpublished thesis Faculty of Canon Law, Saint Paul University),

Ottawa, S.d.

Schreck, A., The Compact History of the Catholic Church, Cincinnati, St. Anthony Messenger

Press, 2009

Schroeder, H., Disciplinary Decrees of the General Councils: Text, Translation, and

Commentary, St. Louis, Herder, 1937

Schroeder, H., Canons and Decrees of the Council of Trent: Original Text with English

Translation, St. Louis, Herder, 1941

Vogel, C., Il peccatore e la penitenza nella Chiesa antica, Torino-Leumann, Elle di ci, 1968

Webber, D., Confessional Faculties: A Comparison Study of the 1917 and 1983 Code of Canon

Law (unpublished thesis Faculty of the School of Religious Studies, Catholic University

of America), Washington, 1984

Woestman, W., Sacraments: Initiation, Penance, Anointing of the Sick: Commentary on Canons

840 – 1007, Ottawa: Faculty of Canon Law, St. Paul University, 1992

JOURNALS AND ARTICLES CONSULTED

Artner, P., The Canonical Protection of the Dignity of the Sacrament of Penance in the Penal

Law, in Folia Canonica 10 (2007) 87

Bévenot, M., The Sacrament of Penance and St. Cyprian's De Lapsis, in Theological Studies 16

(1955) 184-185

Bushman, D., Pope Paul VI on the Renewal of Vatican II as an Act of the Church Drawing from

Her Treasure Things both Old and New, in Nova et Vetera 9.2 (2011) 376

Dallen, J., The Imposition of Hands in Penance: A Study in Liturgical History, in Worship 51

(1977) 226

Deutsch, B., Ancient Roman Law and Modern Canon Law, in The Jurist 30 (1970) 182-190

Goering, J., The Summa of Master Serlo and Thirteenth-Century Penitential Literature, in

Mediaeval Studies 40 (1978) 305

vi

Page 8: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Green, T., The Revision of Sacramental Law: Perspectives, in Studia Canonica 11.2 (1977) 307

Green, T., The Church's Sanctifying Office: Reflections on Selected Canons in the Revised Code,

in The Jurist 44 (1984) 361-362

Huels, J., Another Look at Lay Jurisdiction, in The Jurist 41 (1981) 62

Lynch, J., The Changing Role of the Bishop: A Historical Survey, in The Jurist 39 (1979)

305

Oakley, T., The Cooperation of Mediaeval Penance and Secular Law, in Speculum 7 (1932) 516-

17

Oakley, T., Commutations and Redemptions of Penance, in Catholic Historical Review 18

(1932/1933) 343-344

Sacred Congregation for the Sacraments and Divine Worship, Variationes in novas editiones

librorum liturgicorum ad normam Codicis Iuris Canonici nuper promulgati

introducendae in Notitiae 20 (1983) 549-551

Scicluna, C., Clerical Rights and Duties in the Jurisprudence and Praxis of the Congregation of

the Doctrine of the Faith on Graviora Delicta, in Folia Canonica 10 (2007) 272

Szuromi, A., Authority and Sacramentality in the Catholic Church: A Canonical-Theological

Schemea, in Folia Canonica 11 (2008) 78

vii

Page 9: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

INTRODUCTION

". . .because the nature and character of a judgment requires that sentence be pronounced only

on those who are subjects (of the judge) the Church of God has always held, and this Council

affirms it to be most true, that the absolution which a priest pronounces upon one over whom he

has not either ordinary or delegated jurisdiction, is of no effect."

– Council of Trent, Session XIV, c.7

Over the course of the centuries, the historical development of the sacrament of penance

has given rise to the establishment of certain doctrinal truths connected to its divine institution.

Among these are found the requirements which the Supreme Authority has established for the

valid celebration of the sacrament. As the Church came to reflect upon the judicial nature of the

sacrament which Christ had established, it became clear that two powers were necessary for the

valid absolution of sins. While the radical capacity to forgive sins was given in the sacrament of

holy orders, an additional power was needed for this capacity to be brought ex habitu in actu.

This power lied in the institute of penitential jurisdiction which the Council of Trent taught to be

so essential to the sacrament that without it, the absolution which the priest pronounces “is of no

effect.” Despite its almost ubiquitous presence within the Tradition, the status of the Tridentine

doctrine has increasingly been challenged by theologians and canonists alike. Among such

critics is the highly regarded North American canonist Thomas Green who has asked the

following question: “Why could not the ministerial office of reconciliation be acknowledged as

belonging to the priest by virtue of ordination without the need for an additional faculty?”1

Underlying Green's own question lies another and perhaps more provocative one: does the

Church in fact have the power to abrogate the penitential faculty as an absolute requirement for

validity? In the study which follows, we will attempt to answer this question.

As the nature of our inquiry demands an examination of the doctrinal development of the

penitential faculty, it will be necessary for us to consider this evolution in its proper historical

1 cf. T. GREEN, The Revision of Sacramental Law: Perspectives in Studia Canonica 11.2 (1977) 307.

viii

Page 10: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

and theological context. To this end, we have chosen to employ a historical methodology in

order to help facilitate our discussion. It is our hope that in so doing we will provide an engaging

platform to analyze the doctrinal position of the institute. We shall begin by tracing the evolution

of penitential jurisdiction in the early and medieval periods with a view to exploring the institute

in relation to the judicial nature of the sacrament. Two major lines of development can be seen

in this evolution, both of which play an important role in shaping the ecclesiastical legislation

which governs the institute. The first line consists, broadly speaking, of the Church's practical

response to certain historical situations which serve as an impetus for the increasing presence of

penitential jurisdiction within the canonical legal tradition. The second line concerns that of the

Church's ongoing systematic reflection upon the nature of the sacrament of penance. While the

practical points are important in their own right, it is without a doubt the Church's theological

reflection which has provided stability to the institute down through the centuries. As we are

concerned here with understanding the implications of that stability, our discussion of the former

will serve primarily as beacons of light which will help to illuminate the doctrinal developments

themselves.

Before we begin our inquiry, it will be helpful to say a few words concerning the present

state of scholarship on this topic. It is important for us to acknowledge from the outset that

relatively scant attention has been given to our topic by historians of penance. Beyond the fact

that scholars have been divided regarding much of the historical detail surrounding the Church's

penitential practice, there has been a disproportionate amount of ink spilled on the requirement

of the penitential faculty. This is in some sense surprising especially in view of its relationship to

the validity of the sacrament. Be as it may, this presents no small challenge for us here in terms

of accurately portraying the doctrinal development of the institute. While it can hardly be hoped

to scratch the surface of this complex subject, if we succeed in establishing the status of the

question as one worthy of serious scholarly attention, we will have achieved our aim.

ix

Page 11: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Chapter One

Historical Antecedents for Penitential Jurisdiction

1.1 Lessons in Authority and Sacramentality – Cyprian as Moderator of the

Penitential Discipline

During the persecution of the Roman emperor Decius in 250-251 A.D., a decree was

issued requiring citizens across the empire to sacrifice to the gods under penalty of imprisonment

or even death. The requirement to carry official libelli, or letters which indicated an acceptable

sacrifice had been made to the Roman deities, placed Christians in a potentially compromising

situation in their relationship with the empire as well as with their local Church communities.1

The relative era of peace which had preceded this time in Church history only served to increase

the challenge of Christians to remain faithful during this time of severe persecution. On the one

hand, refusal to offer sacrifice to the gods made them public criminals with the threat of being

visited by harsh punishments threatened by the Roman authorities. On the other hand, failure to

persevere in the Christian faith in the face of this danger resulted in their exclusion from the

ecclesiastical community, thereby also implying the loss of their eternal salvation.2

Many Christians who were found to be less than faithful when pressed by the Roman

authorities, either by their actual offering of sacrifice or in their procurement of fraudulent letters

attesting to the same, eventually sought to be reconciled with the Church. While the species of

crime was weighed differently by ecclesiastical authorities in various parts of the empire, the

predominant position taken among the bishops was that both acts constituted, materially or

formally, the offense of apostasy. When the smoke cleared and peace re-established across the

empire, the bishops were forced to deal with the issue of the readmission of apostates to the

Christian community.

1 For an insightful look at the imperial mandate and the requirement of the libelli, cf. G.W. CLARKE, The Letters of

St. Cyprian of Carthage (Ancient Christian Writers, 44) New York, Newman Press, 1984, Vol. 1, 25-35.2 The etymology of the Latin word excommunicatio, literally meaning 'out of communion,' indicated both the

exclusion from participating in the life of the community as well as the loss of salvation promised that community.

1

Page 12: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

In examining the correspondence between Cyprian and his clergy at Carthage during this

time of persecution, we find ourselves immersed in the tumultuous waters of the penitential

discipline. Having just received word that some presbyters among his clergy have been

reconciling Christians without his authorization, Cyprian laments:

In the case of less serious sins, sinners do penance for the appropriate period and in accordance with the regular stages in the Church's discipline they come forward to make public confession and through the imposition of hands by the bishop and clergy they receive the right to be admitted to communion. But in the present circumstances, at a premature season, whilst the persecution still persists and before peace has yet been restored to the Church herself, they are being admitted to communion and the offering is being made in their name; and when they have yet to do penance, when they have yet to make confession, when they have yet to have the hands of the bishop and the clergy laid upon them, they are being given the Eucharist, even though it is written, He who has eaten the bread or drunk the

cup of the Lord unworthily, will be guilty of the body and blood of the Lord.3

The above passage provides a veritable host of information which helps throw into relief the

penitential discipline in the Carthaginian church. Perhaps more striking than anything here is the

link which can be seen between episcopal authority and the administration of penance. As chief

shepherd and judge of the local church, it fell to the responsibility of Cyprian to moderate the

penitential discipline in the community entrusted to his care. The bishop's role in the

administration of penance was widely accepted during Cyprian's time. « Only the bishop, » says

Cyril Vogel, « reconciles sinners. All the texts agree on this point ».4 Nevertheless, Cyprian

himself admits the possibility of his presbyters hearing the confessions of penitents in certain

cases.5 In either case, the sacramentality of reconciliation depended upon a proper relationship

with the episcopal authority.

In addition to establishing the essential role of the bishop in the penitential discipline, the

above passage from Epistle X also reveals an important liturgical aspect of reconciliation which

needs to be examined: the imposition of hands. As the concrete visible sign of reconciliation, the

ancient ritual of impositio manuum completed the process of reconciliation, allowing the penitent

3 op. cit. CLARKE, 94.4 C. VOGEL, Il peccatore e la penitenza nella Chiesa antica, Torino-Leumann, Elle di ci, 1968,1:34.5 op. cit. CLARKE, 98. In Letter 18 Cyprian exhorts his flock not to postpone their penance until he himself would

be with them; they should make confession of their crimes to any presbyter who may be available. While admittedly the context here is one of grave necessity, it is nevertheless clear evidence of the presbyters cooperation with the bishop in reconciling penitents.

2

Page 13: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

to share once again in the full life of the community. It must be kept in mind that during

Cyprian's time penance was assigned and performed prior to the sinner being reconciled. This is

to be understood in contrast to the modern practice in which reconciliation is considered effected

before the penitent fulfills the assigned penance.6 The order of the process is perhaps less

important for our discussion than considering the concrete sign of reconciliation itself. While

sacramental language may have been absent in describing the rite during this period, the

imposition of hands by the bishop (and afterward by his clergy) was just as assuredly understood

to be a kind of sacramental sign. Insofar as this sign can be understood to be efficacious in

bringing bout the reconciliation of the penitent, it anticipates what later sacramental theology

would attribute to the absolution given by the priest.7

The patristic scholar Adhémar D'Alès has underscored an important connection between

this visible sign of reconciliation and the working of grace within the sacrament. He believes

Cyprian to be instrumental in laying the groundwork for the medieval development of the

sacrament and holds the Carthaginian prelate to have sacerdotal absolution in mind when he

speaks of remission made through the priests (per sacerdotes) – the visible sign of which being

the imposition of hands. Yet, « to speak of an opus operatum in the sense of the later theology »

he says, « would assuredly be to project forward the thought of Cyprian. But it is fair to say that

he opened the road to that theology by the extreme energy with which he taught the connection

between the ecclesiastical sentence and the divine pardon ».8 Lest we be deceive ourselves, we

must be clear that Cyprian was not alone in his understanding of the Church's penitential

discipline. While the emphasis which D'Alès puts his finger on is perhaps found more in

Cyprian's writing than in his contemporaries, it remains true that his vision of reconciliation

followed that of the mainline interpretation given by the early fathers of the Church to the

authoritative Johannine and Matthaean texts.9 The apostles had been entrusted with the power to

6 It is not our intention here to discuss the role of the acts of the penitent in the overall structure of the sacrament. Rather, we simply wish to highlight the order in which the process of reconciliation occurred in the early Church in contrast to the modern practice of receiving absolution from the priest before performing the assigned penance.

7 cf. J. DALLEN, The Imposition of Hands in Penance: A Study in Liturgical History in Worship 51 (1977) 226ff. The author observes, « Cyprian's writings at the time of the Decian persecution (250) provide abundant evidence that the imposition of hands was already associated with penance and reconciliation at Carthage ».

8 A. D'ALÈS, La Théologie De Saint Cyprien, Paris, G. Beauchesne, 1922, 279.9 cf. Jn. 20:23; Mt. 18:18

3

Page 14: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

bind and loose sins on earth, and their judgment would be upheld in heaven.10 This sentence

which is pronounced by the sacerdos in the name of God and of the Church is here already

understood as a judicial action granting or retaining the divine pardon.

1.2 A Reconciliation “Null and Void”

Upon returning to his diocese after spending fourteen months in exile, Cyprian defended

leaving his post during the persecution by writing letters to the other bishops of North Africa and

through the tract De Lapsis which deals with the readmission of apostates in great detail. The

latter is considered to be one of Cyprian's greatest works (the other being his treatise on the unity

of the Church) and provides a wealth of information concerning his theological and pastoral view

of penance, thereby sketching the contours for the requirements of its valid and lawful

administration. In Chapter XV of that work, we find Cyprian exhorting his flock not to be

deceived by the recalcitrant clerics who, in open defiance to his previous instruction, continue to

offer a reconciliation which he terms to be 'null and void'. Cyprian's episcopal votum establishes

in no uncertain terms the invalidity of reconciliation granted without his authorization:

For, dear brethren, there has now appeared a new source of disaster and, as if the fierce storm of persecution had not been enough, there has come to crown it a subtle evil, an innocent-seeming pestilence, which masquerades as compassion. Contrary to the full strength of the Gospel, contrary to the law of Our Lord and God, through certain people's presumption a deceptive readmission to communion is being granted, a reconciliation that is null and void, one that imperils the givers and is worthless to those who receive it.11

The learned French Jesuit scholar Maurice Bévenot has identified the 'certain people' referred to

in the passage as Felicissimus, one of Cyprian's most insubordinate priests, and his wayward

followers.12 These clerics have cut themselves off from their bishop and are creating division in 10 cf. G. BEASLEY-MURRAY, John (World Biblical Commentary, 36) Waco, Word Books, 1987, 383 « . . . this mode of

speech plainly shows that originally the formula 'loose and bind' describes the activity of the judge (Der Evangelist Matthaus, 511). The language refers to the judge's declaration of the guilt or innocence of persons brought before him, who are “bound” to or “loosed” from the charges made against them. . . It is the judge's authority to acquit and to pronounce guilty that is described by this pair of opposites and the synonymous phrases 'bind and loose' and 'forgive and retain sins' ».

11 M. BÉVENOT, St. Cyprian, The Lapsed (Ancient Christian Writers, 25) Westminster, Newman Press, 1957, 24-25.12 M. BÉVENOT, The Sacrament of Penance and St. Cyprian's De Lapsis in Theological Studies 16 (1955) 184-185.

« Who are the “certain people” here? One might think of Paulus. . . but a closer inspection makes it clear that

4

Page 15: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the church at Carthage by garnering the support of would-be penitents, granting to them a

reconciliation which Cyprian judges to be 'null and void'. Far from condemning the

reconciliation of apostates carte blanche, Cyprian is here rather implying the very possibility of

their reconciliation, so long as due respect is shown to the established discipline of which it is his

duty to safeguard.13

Towards the end of the persecution, Cyprian writes an encyclical letter addressed to the

Carthaginian church in which he encourages his flock to maintain unity with their bishop and

avoid being enticed by the « habitual craftiness and sacrilegious schemings » of the schismatic

sect of Felicissimus.14 Among the points of the letter which bear upon our topic, we note with

particular interest the ecclesiastical sanction which Cyprian declares at the beginning of the

encyclical:

In point of fact they have now received the punishment which they had so deserved – but through the providence of God, not by any wish or desire on our part; rather, we were forgiving and held our peace. Consequently, without being cast out by us they have voluntarily cast themselves out from the Church; from their own consciences they have actually passed sentence on themselves.15

The passage is clear enough on its own accord. Cyprian is declaring, not imposing, an

ecclesiastical sanction which the clerics incurred by reconciling apostate Christians without

episcopal authorization. The penalty is envisioned in such a way so as to come to them by the

very fact of their having committed the offense.16 In the case at hand, Cyprian is found to be

well within his authority as a bishop to publicly declare the penalty. He had on several previous

occasions written to his clergy advising them not to proceed with reconciliation until the

persecution had ended in order that individual decisions could be rendered with prudence and

due pastoral solicitude.17 Thus, the moral imputability of the offense would seem to be

they are the priests of the faction of Felicissimus ».13 Ibid., 187. « If we realize the object which Cyprian had in mind, viz., to put a stop to absolutions (as we should

say) being given without any satisfaction – and possibly without any contrition either – we shall recognize that his words were not meant to deprive bishops and priests of the power to forgive sins under proper conditions ».

14 op. cit. CLARKE, Vol. 2, 62. 15 Ibid.16 This is particularly interesting in light of the later establishment of latae sententiae penalties for delicts against

the sacrament of penance. 17 The previous correspondence reveals that Cyprian had denied what we would understand to be confessional

faculties to his clergy, and this in the interest of preserving the common good and unity of the local church entrusted to his care.

5

Page 16: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

established by the obstinate manner of disobedience shown by the clerics to Cyprian's orders. Be

as it may, the very fact of the penalty is clear evidence that the institute of penitential

jurisdiction, while perhaps not described in those terms, was nevertheless something real and

functioning in the life of the Carthaginian church during the third century.

The snapshot of ecclesiastical discipline which we have outlined above reveals, if nothing

else, a clear image of the bishop's authority in the administration of penance. Any role the priest

has in sanctifying the flock of Christ necessarily turns upon having a correct relationship to the

bishop. Moreover, as D'Alès has argued and as we believe the evidence suggests, Cyprian's

theology of penance helps us to see the judicial character of reconciliation implied in the praxis

of the Carthaginian church. Despite the absence of a developed technical vocabulary to describe

it as such, we nevertheless believe the essence of penitential jurisdiction to be clearly operative

in Cyprian's writing. By affirming the strong link between the ecclesiastical sentence and divine

pardon, Cyprian establishes the theological and canonical foundation for the institute to develop

in the Tradition. As we look ahead to the medieval period, we will see the increasing importance

of jurisdiction in the transition from the public to private system of penance under the influence

of the Irish penitentials. Despite the changes which occur in these centuries, it will remain the

responsibility of the bishops to regulate the administration of penance in their territories and to

deal with the increased autonomy and authority of priests as they exercise the power to bind and

loose sinners in the Church.

1.3 The Rise and Influence of the Irish Penitentials

Following the age of martyrdom and theological development in the third and fourth

centuries, the fifth century Church witnessed a general decline in Christian piety, resulting in the

widespread relaxation of morality. « How changed is the Christian people now from its former

character, » writes Salvian of Marseilles about the middle of the century.18 The heretical

movement of Pelagianism, which denied that human nature was corrupted by original sin,

coupled with the external pressure from the empire-wide barbarian invasions, found the Church

18 cf. J. MCNEILL & H. GAMER, Medieval Handbooks of Penance: A Translation of the Principal "Libri

Poenitentiales" and Selections from Related Documents, New York, Columbia University Press, 1990, 20.

6

Page 17: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

at a critical juncture in the history of its penitential discipline.19 The political circumstances of

the empire facilitated the decline of the rigorous system of public penance helped lay the

foundation for a more moderate approach to the expiation of sins. Commenting on the social

atmosphere in which this new system would emerge, J.T. McNeill writes:

The new barbarized society could not be subjected to the old discipline whichhad already proved too severe for the Roman Christians. After much groundhad been lost and public penance had been almost extinguished, a new systemwas to develop, more workable in this turbulent state of society and moreapplicable to its needs.20

The clarion call for penitential reform was beginning to resound, and would eventually be

answered with great fervor by the Celtic missionaries whose custom of private and repeatable

penance appealed to the sensibility and exigencies of Christians on the Continent. In the volatile

climate of the sixth century, many areas were found devoid of penitential practice, save perhaps a

handful of pious Christian widows and other pour souls who were graced with a supernatural

fear of God. Meanwhile the insular church, isolated as it was from the rest of the empire, had

developed its own peculiar customs and political structure. This greatly influenced the Celtic

ecclesiology, which in turn left its mark on the general evolution of their sacramental theology.

As we shall see, the established practice in Ireland was quite distinctive from the now waning

system of public penance on the Continent.21

The Irish libri poenitentiales or penitential books which began to emerge during the sixth

century reveal a system of penance which is marked above all by its private and repeatable

nature. Whereas the practice during Cyprian's time was generally undertaken only once in a

lifetime, the penance we find in the penitentials is available as often as it is sought.22 In

describing the practice as presented in the earliest extant manuals, McNeill writes, « It is

designed as the habitually repeated practice of all the faithful, not as the resort of penitents who

19 cf. A. SCHRECK, The Compact History of the Catholic Church, Cincinnati, St. Anthony Messenger Press, 2009, 35ff.

20 op. cit. MCNEILL, 22.21 Although certain elements which are characteristic of private penance could already be discerned in the

correspondence of Cyprian (i.e. absolutio per sacerdotes), the practice of reconciliation had remained a predominately public affair in which the entire ecclesial community participated.

22 op. cit. MCNEILL, 14. Watkins believes the rigor of the public system of penance to be an efficient cause in establishing the customary practice of postponing penance until the approach of death. This in turn helped to facilitate the gradual abandonment of the old system and usher in the new system of private and repeatable penance which is found in the libri poenitentiales.

7

Page 18: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

had been exceptionally wicked ».23 Addressed in the books were a variety of offenses, each

containing a corresponding “tariff” penance to be performed. Often describing in great detail the

variations of particular offenses, the penances themselves were cataloged with equal precision. In

contrast to the ancient discipline which was limited for the most part to serious sins, the

penitentials espoused great pastoral concern for even the most venial of offenses. Though the

new system was initially met with fierce opposition from the bishops, eventually the force of

custom prevailed and there emerged a novus habitus mentis in the administration of penance on

the Continent. By the twelfth century, the penance of the penitentials had become the standard

discipline of the Universal Church.24

To be sure, the system of public penance still remained in force in many areas of Europe,

although its practical use was now relegated, for the most part, to that of purging the more grave

and notorious offenses. Widespread by the ninth century were the penitentials, which were now

being used by individual priests in private confession on the mainland, reaching all the way to

southern Italy. As individual priests began to exercise a ministry which had historically fell

under the exclusive competence of the bishop, the need arose to establish with greater precision

the jurisdictional competence of each confessor. The increased autonomy afforded to the clergy

by the penitentials needed to be balanced by a reciprocal and organic relationship to the

ecclesiastical authorities. While the idea of jurisdiction had existed from the foundation of the

Church, its formidable application to the administration of penance evolved largely in response

to the changes taking place on the Continent under the influence of the Irish penitentials. The

bishops needed a mechanism in which they could better regulate the administration of penance

within their territories, and this was sought by developing the canonical institute of penitential

jurisdiction.

The use of penitential jurisdiction in the insular church can be seen as early as the sixth

century in a collection of canons attributed to Saint Patrick. In that collection we find the

requirement of clerics to be in possession of canonical letters in order to exercise their public

ministry: « A cleric who comes to us from the Britons without a certificate, even if he dwells in

23 Ibid., 29.24 Ibid. « It should, of course, be understood that the public performance of penance was never suppressed, and that

it was occasionally practiced in the Middle Ages ».

8

Page 19: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the parish, is not permitted to minister ».25 While the extant manuscript evidence does not permit

us to know with certainty the content of such letters, we can if nothing else discern something of

their general character insofar as they are seen to serve as a kind of validation for ministry. The

canonical epistolae alluded to in canon 33 of the collection cited above are perhaps the precursor

to what we know today as letters of diocesan faculties, granted by the bishop to his priests for the

valid and lawful exercise of their public ministry. Even if such a conjecture is difficult if not

impossible to prove historically, it seems quite reasonable to presume that such letters served to

establish the visiting cleric's relationship to his bishop or ecclesiastical superior. Moreover, if by

the use of the word “minister” we understand to be included the administration of penance, the

priest's ability to hear confessions during this time would seem to have been dependent upon his

possession of such a letter.26 Much more could be said in this regard, but it is enough that we

simply take note of the presence of a documentary tradition which appeared to have been in use

for the sake of legitimizing the ministry of a cleric residing in a foreign territory.

1.4 The Penitential Literature – A Paradox for Jurisdiction

Beyond its significance in establishing the canonical relationship between clerics and the

ecclesiastical hierarchy, jurisdiction was increasingly placed in the service of safeguarding the

penitential discipline from abuses. While the system of private penance which had emerged did

much to foster the piety and devotion of countless Christians on the Continent, the penitential

books themselves often left much to be desired in their theological and pastoral view of penance.

A noted authority on the Irish penitential literature from the medieval period believes this to be

due in large part to the provenance in which the texts emerged. « In contrast to our own present

practice, » writes T.P. Oakley, « the secular laws of that time constantly reiterated that crimes

were sins, and that secular penal law had a religious, as well as a punitive purpose. In addition to

being wrongs against individuals or the State, crimes were regarded as defiling the soul of the

25 Ibid., 80.26 As the language of the canon itself specifically refers to a cleric coming from the Britons, we can infer that the

logic here would apply to any external priest not incardinated in the particular diocese where he wished to exercise his public ministry.

9

Page 20: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

committor ».27 That criminal offenses were subject to both civil and ecclesiastical penalties

during this period is evidenced by both the secular law codes which established them as crimen

as well as the libri poenitentiales which prescribed specific penances for them. The cooperation

between church and state in the punishment of offenses played a significant role in the everyday

life of people and greatly influenced the development of the respective penal laws of each

system. While there were many benefits from the contact between the two laws, the

entanglement between the ecclesiastical and secular authorities readily lent itself to abuses in the

Church's penitential practice.

At the time of their development in early medieval Ireland, the penitentials took shape

alongside the codification of secular law, thus adopting many of the legal principles of the time

and transferring them to a Christian context.28 Thus, the popular understanding of justice in

Ireland during this period played an important role in the formation of the penitential literature of

the local church, especially in the philosophy of punishment which governed the penalties

prescribed for particular sins. One of the areas in which the secular law codes greatly influenced

the penitential discipline is to be found in the so-called “commutation” of penance. Legitimate in

and of itself, the institute of commutation originally arose for cases in which it was impossible

for an assigned penance to be performed for reasons of age, sickness, disability, etc.. Provisions

were made for the alleviation of penance through other forms of expiation, not infrequently

involving the substitution of money payments for austerities. It had been the Irish custom to

accept monetary fines in lieu of penalties imposed by the secular authorities, and this was

received in some of the penitentials in the form of relaxation of penance in exchange for

pecuniary restitution. Such irregular practices eventually found their way to the Continent,

opening the door to a variety of abuses in the administration of penance to which the Church

needed to respond.

As the penitential manuals themselves ranged widely in their prescriptions, it is not

surprising that the bishops were reluctant to give official sanction to their use. In speaking to this

point, Thomas Oakley comments, « Reform councils and prelates frequently complained that the

27 T. OAKLEY, The Cooperation of Mediaeval Penance and Secular Law in Speculum 7 (1932) 516-17.28 op. cit. MCNEILL, 37. « While the penitentials reaffirmed those elements in the legal inheritance of the people

which particularly tended to security and justice, the secular codes on their part recognized the obligatory character of the penitential discipline and lent it substantial support ».

10

Page 21: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

arbitrary variations in these manuals were subversive of ecclesiastical discipline ».29 Yet, despite

the many pastoral challenges which surrounded the penitential literature, their ubiquitous

presence on the Continent practically forced the Church to concede in appropriating their use

rather than attempting to abolish them altogether. McNeill sums up the rather paradoxical

influence of the penitentials on the Continent in the following words:

The penitentials were the work of earnest reformers of discipline, and theyhelped to lead our forefathers from a low and primitive to a higher stage ofmoral culture. But they contained certain humanely-designed provisionspermitting the substitution of payment for penitential austerities, whichlent themselves too readily to gross abuses and sowed the seed of an evilharvest.30

As with all things in the history of the Church, the fruits of authentic reform necessarily take

shape amidst the frailties of the human condition. A sober view of the influence of the

penitential literature must therefore take into account both the contributions as well as the

shortcomings which resulted from their use in the administration of penance. Perhaps most

importantly for our discussion is the fact that the penitentials brought the Church to reflect once

again upon her authority to forgive sins, thus providing the occasion for a great era of penitential

reform. This reform of penance would include a more focused attempt to develop the institute of

jurisdiction which sought to uphold the theology of the particular church while at the same time

safeguarding the discipline from abuses.

29 T. OAKLEY, Commutations and Redemptions of Penance in Catholic Historical Review 18 (1932/1933) 343-344. It is the opinion of Oakley that historians of penance have often mistakenly attributed the abuses associated with commutations of penance to the penitentials as a whole. He does well to point out that certain of the manuals were in fact vehemently opposed to the practice.

30 op. cit. MCNEILL, 49.

11

Page 22: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Chapter Two

Penitential Jurisdiction in the High Medieval Period

2.1 Competing Trends in Ecclesiology and the Conflict of Jurisdiction

When the Irish missionaries brought the penitentials to the Continent, the practice of

monastic priests reconciling secular clerics and laity became increasingly common. As distinct

from the parish system which had emerged on the Continent, the insular church of the early

medieval period was centered around the monasteries and abbots who presided over them. In this

configuration it was the abbot who would appoint priests for the administration of penance, and

this irrespective of whether he was invested with the episcopal character. In point of fact, his

community might even include bishops who were subject to him just as were the others.1 With

abbots and monastic priests hearing the confessions of secular clerics and laity on the Continent,

the Church was faced with sorting out the emerging clash over penitential jurisdiction.

As early as the ninth century we find this issue being addressed at the regional level. One

example of efforts made in this regard is found in the decision of the Council of Paris in 813

A.D.. The fathers at Paris decreed that monastic priests should administer penance only to the

monks of their own monastery. This legislation marked a significant turning point in the history

of penitential jurisdiction and helped lay the foundation for its future development as a canonical

institute. Recognizing the historical precedent of the decision made by the Carolingian bishops

and its eventual impact at the level of the Universal Church, Marcellus McCartney writes: « This

in reality amounted to a local decree on the necessity of confessing to one's proper pastor, local

legislation that was to be made universal almost four centuries later by the IV Lateran Council in

1215 ».2 By the time the issue was decided by the Supreme Authority, the institute of penitential

jurisdiction had increasingly become a source of conflict between the secular clergy and newly

established religious orders on fire for souls in their sacramental ministry. These tensions were,

however, far from being new on the ecclesiastical landscape. This is evidenced in the West by

1 cf. M. MCCARTNEY, Faculties of Regular Confessors, Canon Law Studies no. 280, Washington, Catholic University of America Press (1949) 12-13.

2 Ibid., 14.

12

Page 23: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

legislation enacted as early as the fifth century in France.3 Clashes over ministerial competencies

continued to resurface throughout the Middle Ages amidst the growing number of religious

orders which sought to legitimize their ministry within the Church.

Apart from the need of resolving the conflicts among the secular and religious clergy,

ecclesiastical legislation also sought to regularize the administration of penance within the

diocesan curia. This process was, however, slow in the making. In the interim leading up to the

IV Lateran Council, the historical reception of the Carolingian legislation was put on hold due to

the period of decline which plagued the Catholic Church during the tenth and eleventh centuries.

In fact, tensions only increased as clerics became more concerned with temporal power and

prestige than with the salvation of souls. The turn of the millennium witnessed malicious attacks

from within the Church, and the administration of penance was no exception. In many places

there was found an increasingly common ad intra struggle for power in the diocesan curia,

especially between the medieval archdeacon and the diocesan bishop in matters related to the

administration of penance.

It had become increasingly common for dioceses to divided into archdeaconries where

the archdeacons enjoyed ordinary jurisdiction.4 The Decretals of Gregory IX defined the office

of archdeacon and distinguished between those who were considered general vicars of the bishop

in contrast to those who were territorial vicars. In the Decretals, it was the latter who was

viewed as having a real care of souls (cura animarum).5 As one whose office was attached the

care of souls, the medieval archdeacon could suspend, excommunicate and absolve presbyters

and priors.6 While these powers were viewed as expedient in assisting the bishop in carrying out

his pastoral office, such authority was often perverted by a less than faithful clergy. As the

Church approached the thirteenth century, competing and divisive attitudes in the administration

of penance needed to be dealt with by the Supreme Authority who alone had the authority to sort

3 Ibid., 10. « In about the year 455 a council was held at Arles with a view to settling a dispute that had arisen between Faustus, abbot of the monastery of Lerins, and Theodore, bishop of Frejus, in whose diocese Lerins was situated. The Council decided that the bishop had jurisdiction over all matters pertaining to the administration of the sacraments and to ecclesiastical governance, while everything else was left subject to the rule of the abbot ».

4 cf. J. LYNCH, The Changing Role of the Bishop: A Historical Survey in The Jurist 39 (1979) 305ff.5 cf. Decretals of Gregory IX, Book X, Title I, Capitulau 6, 54 in A. FRIEDBERG, (ed.), Corpus Iuris Canonici editio

Lipsiensis secunda post Aemilii Ludouci Richteri, Pars Secunda, Decretalium Collectiones, Decretales D. Gregorii P. IX Compilatio, Graz, Akademische Druck- u. Verlagsanstalt, 1955, 94.

6 art. cit. LYNCH, 306.

13

Page 24: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

things out. Despite the many practical reasons for the institute of penitential jurisdiction, the

question still remained to be asked: does the institute itself belong to the nature of the sacrament

as such, or is it merely a tool for avoiding conflict and confusion in the life of the Church?

During the pontificate of Innocent III, the power of jurisdiction in the sacrament of

penance would come under the scrutiny of the Apostolic See and would emerge as a more

precisely defined institute placed at the service of the Universal Church. While much of the

theological and canonical content of jurisdiction would remain in potency until the Council of

Trent, the Lateran legislation would bring forth a new paradigm for reflection upon the Church's

penitential discipline. By taking a serious look at the role of both the minister and the penitent,

the fathers at the Lateran council were able to come to a deeper understanding and appreciation

of jurisdiction in the overall structure of the sacrament. In so doing, they gained valuable insight

which helped chart the course for the development of the institute down to our present day.

2.2 Proprio Sacerdote – the Contribution of Lateran IV

In his letter convoking the IV Lateran Council, Pope Innocent III reveals his marshal

plan, « to uproot vices and plant virtues, to correct excesses and reform morals, to eliminate

heresies and strengthen the faith ».7 Innocent understood authentic reform to depend upon the

renewal of the Church's liturgical worship, and he saw the need to establish laws which would

allow for its dignified celebration.8 As the very purpose of the Church's disciplinary rules are

precisely to order and direct the Church, « to divine worship, peace, and preserving Christian

justice, at last to reach the eternal happiness, » the law on the sacraments lies at the very heart of

the canonical discipline.9 Moreover, as liturgical expressions of the unity found in the Church's

depositum fidei, it is only fitting that they be regulated with a view to strengthening that unity.

Innocent understood this well and continued the work of his predecessors in placing the law at

the service of the Church's reform.

Through the decree Omnis utriusque sexus the Fourth Lateran Council required all

7 INNOCENT III, Epist. « Vineam Domini Sabaoth » in J. MIGNE, Patrologia Latina, Letter 16.30 (216.824B).8 cf. INNOCENT III, De Sacro Altaris Mysterio Libri VI, S.I., Sylvæ-Ducum, 1846. 9 A. SZUROMI, Authority and Sacramentality in the Catholic Church: A Canonical-Theological Schemea in Folia

Canonica 11 (2008) 78.

14

Page 25: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Christians (having reached the age of reason), both male and female, to confess their sins to their

own priest (proprio sacerdote) at least once a year and strive to fulfill the penance enjoined.10

While the practice of frequent confession had been well established under the influence of the

Irish penitentials, the issue had yet to be decided by the Supreme Authority until the Lateran

council.11 Hence, the development which can be identified in the Lateran decree consists not so

much in a change in practice, but rather in the elevation of regional legislation to that of

universal law bearing papal authority. Norman Tanner highlights this when he writes, « By this

action [promulgating the decree] the council established no new rights and imposed no new

obligations, but merely gave ecumenical sanction to or made universal a discipline already in

existence ».12 As it came on the radar of the Supreme Authority, the institute of penitential

jurisdiction would now also be subject to the enforcement of the Apostolic See.

Through the text of the Lateran decree, a more explicit connection was made between the

authority of the local confessor to forgive sins and the “power of the keys” which he exercised in

hierarchical communion. In this configuration the institute of jurisdiction functioned as the

canonical glue which tied the local administration of penance directly to the episcopal authority.

Commentators on the Lateran text have frequently found the institute of penitential jurisdiction

to be contained, at least implicitly, in the use of the adjective proprio in the council's description

of the confessor envisioned in canon 21.13 Used here as a juridical qualifier, the term indicates

that only confession to one's proper priest (i.e. the priest to whom has been given penitential

authority over concrete particular subjects) suffices the requirement of the canon. This meant

that no matter how often the faithful confessed to other priests throughout the year, they were

10 J. GOERING, The Internal Forum and the Literature of Penance and Confession, in: W. HARTMANN AND K. PENNINGTON (eds.), The history of medieval canon law in the Classical Period, 1140-1234. From Gratian to the

Decretals of Pope Gregory IX, Washington, Catholic University of America Press, 2008, 381. « Omnis utriusque sexus fidelis, postquam ad annos discretionis pervenerit, omnia sua solus peccata confiteatur fideliter, saltem semel in anno proprio sacerdoti, et iniunctam sibi poenitentiam studeat pro viribus adimplere ».

11 cf. H. SCHROEDER, Disciplinary Decrees of the General Councils: Text, Translation, and Commentary, St. Louis, Herder, 1937, 260-261. Schroeder reports that various synods from the sixth century onward had issued legislation concerning a minimum frequency for confession; that of Agde (506) required it three times a year (c.19, De consecrat., D.II); Chalon-sur-Saône (813) required it three times a year; Augsburg (952) made twice a year obligatory.

12 Ibid., 26113 It should be noted that the use of the term proprius to qualify the priest is, however, not something entirely new.

It is for example used in canon 10 of the Second Lateran Council (1139) in its provision establishing that every parish should have its own priest (proprius sacerdos), as opposed to hiring temporary clergy.

15

Page 26: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

still bound to confess to their proper priest at least once a year.14 According to Tanner, the

Lateran decree came, at least in part, as a response to avaricious priest who lured the faithful of

other parishes to their own in the interest of collecting their tithes.15 Be as it may, the legislation

itself constituted an important milestone in the history of the penitential discipline, both in terms

of establishing clearer lines for its administration and, as we shall see, in providing the occasion

for the Church to reflect anew upon the judicial nature of the sacrament itself.

Perhaps somewhat paradoxically, the force of penitential jurisdiction which is found in

the Lateran decree might best be understood from the perspective of the sole exception to the

requirement itself. Here we are speaking of the clause, « unless he has obtained permission

[from the proper priest] to confess to another ». Without such permission, we are told by the

canon, the other priest « cannot loose or bind him ». Thus, we find a causal relationship between

the permission of the proper priest and the validity of sacramental absolution given by another:

Si quis autem alieno sacerdoti voluerit justa de causa sua confiteri peccata, licentiam prius

postulet et obtineat a proprio sacerdote, cum aliter ille ipse non possit solvere vel ligare. Far

from this grant of permission being a mere formality to be observed, the Lateran provision

establishes the invalidity of absolution (non possit solvere) given without it. The fact alone that

such permission was understood to touch the validity of the sacrament throws into clear relief the

doctrinal importance accorded to jurisdiction in the conciliar text.

The formal requirement of having permission from one's proper priest to confess validly

to another had already been acknowledged prior to the Lateran decree. Among authors writing in

the period immediately preceding the council, Alanus de Insulis (d. 1202) testifies to the practice

as already established in the Tradition. In his Liber poenitentialis he writes:

If a priest knows that a person belonging to another parish comes to him to go to confession, he may not hear his confession, but must send him back ad proprium

sacerdotum; if, however, he knows that such a person has already made his confession proprio sacerdoti, then he may not send him away.16

14 The exception to this is found in the clause of the canon which reads,« licentiam prius postulet et obtineat a proprio sacerdote ».

15 op. cit. SCHROEDER, 262. « . . . some parish priests, moved by avarice, did not scruple to lure people of other parishes to their own churches to fulfill their obligation of receiving communion at Easter, for the people paid their tithes in those churches where they received their Easter communion ».

16 op. cit. MIGNE, CCX, 299. « Si alterius sacerdotis parochianus ad alium accedat, ille, ad quem accedit, si hoc sciat, ad proprium sacerdotem remittat; si vero cognoscat eum proprio sacerdoti confessum fuisse, ejus confessionem non respuat ».

16

Page 27: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

As tensions continued to run high between the secular and religious clergy, the now universal

requirement of confessing to one's proper priest sought to establish and identify those clerics

who were authorized for ministry within the local church. To this end, the institute of penitential

jurisdiction continued to be developed by ecclesiastical authorities as a remedy for the constant

struggle over sacramental competency. Whether it truly functioned as a remedy in practice is,

perhaps, a different matter. What did become clear in the thirteenth century was the fact that

penitential jurisdiction was viewed by the Church as an absolute requirement for validity in the

sacrament. In their grant of jurisdiction, secular and regular clerics alike were empowered to

exercise their public ministry as coadiutores et cooperatores by assisting the bishops in hearing

confessions and enjoining penances. Thus the link between authority and sacramentality within

the Church continues to be seen in the historical development of the institute. As penitential

jurisdiction served to establish a cleric's relationship both to the episcopal authority and to those

penitents who came to him for reconciliation, the absolution which was granted in the absence of

those conditions was understood to be of no effect.

2.3 The Priest-Confessor as Doctor and Judge

Beyond the many practical changes which occurred during this period, the doctrine of

penitential jurisdiction was also heavily influenced by the Church's theological reflection upon

the role of the priest within the framework of the sacrament. With the Lateran requirement of

confessing all (mortal) sins, there simultaneously arose the obligation for confessors to be

available to hear the confessions of the flock entrusted to their care. The greater frequency with

which sacramental confessions were being heard coupled with the desire of the Supreme

Authority to have a more competent and faithful clergy led to a greater sensitivity as regards the

particular pastoral role of the confessor. As a natural consequence to its view on the sacrament

itself, the Lateran council worked to recover the image of the priest-confessor as both a true

doctor of souls as well as a judge constituted in the fullest sense. The priest was to determine

the substance and circumstances of sins in order to be effective in applying the appropriate

remedy:

17

Page 28: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Let the priest be discreet and cautious that he may pour wine and oil into the wounds of the one injured after the manner of a skillful physician, carefully inquiring into the circumstances of the sinner and the sin, from the nature of which he may understand what kind of advice to give and what remedy to apply. . .17

The text of the canon is clear enough: the priest was to determine the facts of the case being

presented before him so as to be able to pronounce a judgment. Combined with the requirement

of penitential jurisdiction laid down in the first part of this canon, the above passage yields a

clear image of the judicial role of the priest in the tribunal of penance. Just as the doctor must

be made aware of the physical ailment before he is able to treat it, so too the priest must be made

aware of and judge the sins of the penitent so as to be able to cure the spiritual wound. For its

part, the legal requirement of annual confession seems to have served two ends. On the one hand

it helped foster piety and devotion among penitents; on the other hand, it aimed at building a

more competent and faithful clergy capable of guiding souls under their care and jurisdiction.

The image of the priest as both doctor and judge came to dominate much of the post-

conciliar penitential literature, especially those produced by canonists.18 « The task of the

confessor as presented in the new penitential manuals,» writes Goering, « is largely judicial » .19

The new literature departs significantly from its Irish inheritance in this regard. Whereas the

principle task of the confessor under the older manuals had consisted almost exclusively in

assigning the appropriate penance for the sins confessed, « the thirteenth century priest was

taught to supplement the traditional tariffs, and even to replace them, by using the new skills of

the ecclesiastical judge and of the canonical consultant ».20 Although much was still left to be

desired in terms of bridging the gap between the theory and practice of the law, the legislation at

Lateran IV had ushered in a new era in the Church's penitential practice. With the position of the

17 P. HALSALL, Canon 21 – Fourth Lateran Council, Internet Medieval Sourcebook, New York, Fordham University City for Medieval Studies, 1996, <http://www.fordham.edu/halsall/basis/lateran4.asp >.

18 P. PAYER, Sex and the New Medieval Literature of Confession, 1150-1300, Toronto, Pontifical Institute of Mediaeval Studies, 2009, 26. « These works point up an important feature of the literature of confession – its dominance by canon lawyers ». By far the most important of these works is the Summa de paenitentia of Raymond of Penyafort (ca. 1224). Payer has noted that among other significant manuals on penance from this period which follow this line of thought are to be found those of Cardinal Hostiensis, Robert of Flamborough and Thomas of Chobham.

19 J. GOERING, The Summa of Master Serlo and Thirteenth-Century Penitential Literature in Mediaeval Studies 40 (1978) 305.

20 op. cit. GOERING, The Internal Forum, 422.

18

Page 29: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

parish priest strengthened, the local community had emerged as the primary tribunal of the

internal forum.21 Any confusion which may have existed in previous centuries regarding the

necessity of jurisdiction in the sacrament of penance was now brought to an end. It could now

be said without ambiguity that jurisdiction was required for the validity of the sacrament.

2.4 The Jurisdiction of the Mendicant Orders after Lateran IV

The Lateran legislation had left a profound mark on the Church's penitential discipline.

Beyond the developments outlined above concerning the impact of the requirement on the

minister of the sacrament, there were also some questions which needed to be resolved

concerning the source of penitential jurisdiction within the Church. As we will recall, in the

centuries leading up to the Lateran legislation the normative source of jurisdiction was the

diocesan bishop. The Irish monastic practice of the abbot granting jurisdiction, though

established as a custom for some time in the Church, eventually conceded to the sacramental

authority of the local bishop. Thus, notwithstanding the customary practices in use up until the

Lateran council, it fell to the competency of the bishop alone to grant penitential jurisdiction in

his territory.22 Nevertheless, as a legate of the Roman Pontiff, the bishop received his jurisdiction

directly from the Successor of Peter who was the source of all jurisdiction in the Church. As the

pope possessed jurisdiction throughout the world by virtue of divine law, he was also able to

grant it directly (bypassing the local bishop) to those to whom he found it expedient to do so.

Upon his ascension to the papal throne in the year 1227, Gregory IX made the history of

penitential jurisdiction all the more interesting when, in the very first year of his pontificate, he

granted apostolic jurisdiction to the priests of the Dominican Order.23 This sparked a new flavor

of controversy in matters pertaining to the internal forum, so much so that pontifical legislation

21 Ibid., 388. « . . .the emerging consensus, expressed by the Lateran Council, was that the primary tribunal of the internal forum was to be found in the local community, and that the local priest charged with the care of souls ('cura animarum') was its primary minister and judge ».

22 It stands well beyond the scope of our inquiry to discuss in any detail the history of privileges for regular confessors in the Latin Church. The brief comments made here follow the study made by McCartney in his exhaustive and exhausting treatment of jurisdiction for regulars leading up to the Council of Trent. For further reading, cf. op. cit. MCCARTNEY, 9-23.

23 op. cit. MCCARTNEY, 17.

19

Page 30: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

in the following centuries seemingly could not avoid modifying or updating the scope of the

friars jurisdiction. Depending on the preference of the reigning pontiff in the years that followed

Gregory's initiative, the jurisdiction of the Mendicant Orders either remained exempt from the

intervention of authorities below the Holy See or became restricted by the same. This can be

especially seen in the papal legislation issued toward the end of the thirteenth century. Through

the Constitution Ad fructus uberes of December 1281, Martin IV extended papal jurisdiction to

the Minister General and Provincials of the Franciscan Order.24 Out of respect for the law of the

IV Lateran Council, however, he made it clear that penitents who came to the friars for

confession were still bound to confess at least once a year to their proper priest. In the year

1300, Boniface VIII enacted new legislation which sought to balance the privileges granted in

the Martinian constitution with the authority of the bishops to moderate the penitential discipline

within their territories.25 Through the new apostolic constitution a standard procedure was

established by which the friars were to abide in order to hear the confessions of secular clergy

and laity. The superiors were to choose certain priests and present them to the bishop for

permission to absolve penitents in the diocese.26 As succeeding legislation went back and forth

on these privileges right up until the Council of Trent, the efforts of the popes to quail the

tensions among the clergy never quite solved the dillema.27

The fact is that jurisdiction in the sacrament of penance was not something taken lightly.28

The great time and energy which went into discussions surrounding penitential jurisdiction

during the medieval period makes it difficult to deny the importance of its place within the

sacrament. Indeed, when one considers the sheer amount of ink which had been spilled over the

institute of jurisdiction, one can reasonably argue that its presence in the tradition became more

of a source of conflict rather than its remedy. Given this fact, one might reasonably ask the

24 Ibid., 18. The same privilege was extended to the Dominican Order on January 10, 1282. 25 C. 2, de suplturis, III, 6, in Extravag. Com.26 It should be noted that the approbatio of the bishop was not required for the friars to absolve members of their

own religious community. This was made possible through jurisdiction obtained from their superiors alone. 27 op. cit. MCCARTNEY, 21. « . . .complaints against the Mendicants were laid before the Council of Vienne (1311-

1312), which had been convoked by Clement V (1305-1314). At this Council, on May 9, 1312, Clement V promulgated the Constitution Dudum, in which he revoked the legislation of Benedict XI [himself a Dominican]. . .and restored that of the Constitution Super cathedram of Boniface VIII ».

28 Despite the constant struggle to sort things out, the Church continued to uphold the necessity of jurisdiction in the sacrament of penance. We believe this to be a clear testimony of the unique doctrinal position of the institute in its relationship to the validity of the sacrament.

20

Page 31: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

question: would it not have been in the interest of the Church to abrogate the requirement for

jurisdiction in the sacrament of penance? In other words, why didn't the Supreme Authority

simply decree that a priest's ordination is alone sufficient to hear confessions validly? One

would think such a proposal would have undoubtedly been considered by the theologians and

canonists who helped draft the various treatises and legislation which appeared on the topic. Yet,

something kept the institute alive and well. The question then which remains to be asked is the

following: what was it that inspired the Church to retain the requirement for jurisdiction when it

seemed to cause more conflict than harmony?

As we look ahead to the development of penitential jurisdiction at the Council of Trent,

the wonderfully insightful analogy used by Bonaventure will aide us in unlocking the dynamism

of the institute. The saint and seventh Minister General of the Franciscan Order teaches that

jurisdiction in the sacrament of penance is « the motive force or the hand which moves the key in

a door so that if this force is lacking, even if the key is present, the door will never be opened ».29

We believe Bonaventure's position to be representative of the nature of the institute as developed

in the Tradition before, during and after the great councils of the medieval period. Although it is

true that the institute remained in potency with respect to its technical-juridical expression in the

law throughout much of Church history, the evolving penitential discipline can all but be studied

without acknowledging its presence within the essential structure of the sacrament.

As we shall see, the fathers at Trent do much to uncover the organic growth of

jurisdiction within the Tradition and firmly establish it as belonging to the very essence of the

sacrament. In making such a claim, the council fathers in no way wish to deny the functional (or

perhaps controversial) elements of jurisdiction in terms of its utility in ecclesiastical law. Far

from being antithetical to one another, the practical and doctrinal developments should be seen as

two sides of the same coin. In other words, the claim itself that jurisdiction belongs to the nature

of the sacrament serves to legitimate the many practical refinements of the institute which

occurred throughout its history. Let us turn now to consider how these two lines of development

are brought together to strengthen the doctrinal integrity of the institute in the Tridentine era.

29 cf. BONAVENTURE, Opera Omnia, pars. IV, dist. 19, A. 2, Q. 2 cited in J. KELLY, The Jurisdiction of the Simple

Confessor, Canon Law Studies no. 43, Washington, Catholic University of America Press (1927) 17.

21

Page 32: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Chapter Three

Penitential Jurisdiction in the Tridentine Era

3.1 The Council of Trent in Context

In order that we may provide some general context for our discussion of the Tridentine

legislation on jurisdiction, a few words are in order regarding the historical background in which

the relevant canons and decrees emerge. The Council of Trent stands alone in the history of the

Church in the range and depth with which it brought ecclesiastical reform from latent potential to

vibrant actualization. Spanning some eighteen years, the Council addressed questions of both

doctrine and discipline, the answers to which would remain a veritable foundation of Catholic

life for centuries to come. Convoked in the year 1545 by Paul III (1534-1549), the Tridentine

canons and decrees were ratified by Pius IV (1559-1565) in the closing session of the Council in

1563. By the time of the council it was widely accepted that in addition to the power of orders,

one also needed the power of jurisdiction to administer validly the sacrament of penance.

Nevertheless, the doctrinal elements surrounding the sacrament needed to be clarified in order to

respond adequately to the charges laid by the Protestant Reformers as regards the penitential

discipline.

It must be kept in mind that the Tridentine legislation on jurisdiction represents only a

small part of the council's wider exposition of doctrine concerning the sacrament of penance.

The Reformers had in fact challenged several tenets of the Catholic faith concerning the

sacrament, and this was undoubtedly due, at least in part, to the many abuses which had crept in

to its dignified celebration. To be sure, the Reformers were justified in their outrage concerning

many aspects of ecclesiastical life at the beginning of the sixteenth century. Sadly, some of the

most grievous offenses which occurred involved the selling of spiritual goods which were often

peddled like merchandise. The Dominican indulgence-seller Tetzel, who sparked Luther's

protest against the Church, was reported to have chanted, « As soon as a coin in the coffer rings,

the soul from purgatory springs ».1 We have already seen similar abuses in the penitential 1 cf. W. ESTEP, Renaissance and Reformation, Grand Rapids, W.B. Eerdmans, 1986, 119 cited in op. cit. SCHRECK,

22

Page 33: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

discipline of the early medieval period whereby confessors would accept monetary payments in

lieu of assigning traditional penances. In much the same way, the selling of indulgences

attempted to usurp the authority of the Church to remit the punishment due to sin by disregarding

the obligation to observe the canonical norms governing their legitimate use. If we recall that the

Church's doctrine on indulgences has a close affinity to her penitential discipline, it becomes

easier to understand the hostility in the air surrounding the sacrament. In this regard, it is

interesting to note that the same session of the council which dealt with indulgences also dealt

with the penitential jurisdiction of confessors.2 As both topics were made the subject of mockery

by the Protestant reformers, the Fathers at Trent needed to respond with ever greater precision in

order to define the theological and juridical contours of each institute.

The Tridentine legislation on penitential jurisdiction both presupposes its legitimate place

in the Tradition and helps provide clarity as regards its proper scope and application in the life of

the Church. Thus, the task of the Fathers at Trent was twofold. There was both a need to clarify

authentic Catholic doctrine concerning the institute as well as to define in a more precise manner

its principle source and modes of transmission. With respect to the latter, the Council found it

expedient to make use of ancillary institutes such as approbation which would help to facilitate a

greater effectiveness for episcopal oversight in the penitential discipline. This in turn helped to

clarify the distinction between the power of jurisdiction and the power of orders, thereby

bringing greater precision to the relative function of each within the overall structure of the

sacrament.

In the context of the Protestant objections to Catholic doctrine concerning the sacrament

of penance, one issue stands out above the rest in its ability to illustrate the issue at hand. We are

here referring to the nature of the absolution pronounced by the priest in the sacrament. Luther

and the other reformers argued that the words pronounced by the priest were merely deprecatory

in nature and did not bring forgiveness to the penitent. Rather, the role of the priest was simply

to assure the sinner that because of his faith, his sins were no longer imputed to him. In the last

chapter we saw how the penitential literature which emerged during the thirteenth century placed

70.2 cf. sess. XXV, de regularibus, c. 11 cited in H. SCHROEDER, Canons and Decrees of the Council of Trent: Original

Text with English Translation, St. Louis, Herder, 1941, 224; 492. Unless otherwise indicated, all English translations of the Tridentine canons will be taken from this work.

23

Page 34: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

an increasing emphasis on the judicial character of the priest's absolution in the administration of

the sacrament. In the words of Joseph Goering, « The task of the confessor as presented in the

new penitential manuals [was] largely judicial ».3 The Protestant reformers despised this,

believing it to be attributing to the priest a power that belonged to God alone, namely, the

authority to forgive sins. The entire Tridentine doctrine of penitential jurisdiction crystallizes

around the response of the Fathers of Trent to this assertion.

That there had been a change in the administration of penance during the course of many

centuries was widely acknowledged on both sides. The difference lay not in the historical facts,

but rather in the interpretation given to the developments which had occurred. Whereas the

Reformers had seen a rupture in the penitential discipline between the patristic and medieval

periods, the Catholic understanding of the same was one of continuity and development. As we

saw in our previous discussion regarding the administration of penance under Cyprian's

authority, the connection between the ecclesiastical sentence and the divine pardon was already

well established at the time of the third century.4 While the bishop's decision to bind or loose

penitents who sought reconciliation in the early church may not have been explicitly described as

a judicial action, it was just as assuredly implied in the nature of the judgment which he

pronounced in the name of God and of the Church. Nevertheless, the Reformers felt justified in

maintaining the deprecatory theory of the sacrament of penance, and argued that the change

which had occurred in the form of absolution was an invention of diabolic origin. This, we

submit, is an error which resulted from a failure to see the correct relationship between God, the

Church, and the sinner seeking God's forgiveness in the Church.

The position of the Reformers was as unwarranted as it was historically inaccurate. It is

true that the form of absolution did change from the depractory: 'May God forgive you' ('Deus

absolvat te'), to the declarative: 'I absolve you' (Ego te absolvo a peccatis tuis') sometime in the

thirteenth century.5 Yet, the fact alone that the form changes late in the course of Church history

is hardly convincing evidence of its having been spawned out of the pit of hell. The Fathers at

3 cf. supra, 18.4 cf. supra, 2ff.5 op. cit. GOERING, The Internal Forum, 419, fn. 66. Goering makes reference here to the French scholar P.M. Gy

who has argued that the new formula arose in the office of the papal penitentiary, or among the masters of Bologna, and that it connotes a development of the canonical aspect of the sacrament. He goes on to point out that the declarative form is already presupposed in Innocent IV's commentary on the Decretals of Gregory IX.

24

Page 35: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Trent understood well that despite the notable variations which had occurred in the sacrament

down through the centuries, its essence had always remained in tact. It was their task to

distinguish, under the guidance of the Holy Spirit, those elements which pertained to the

substance of the sacrament and those which were accidental or historically conditioned. After

all, if no authority on earth existed to say what did or did not pertain to the sacraments, the

conflict of human opinion would render it impossible to know with any certainty the validity of

their effects.

In considering the history of the sacrament of penance, it is particularly important to point

out the fact that the Church never doubted that God alone can forgive sins. Commenting on the

perennial awareness of this fundamental datum of theological reflection, the current holy father

(in his previous capacity as Cardinal Prefect of the Congregation for the Doctrine of the Faith)

has remarked:

The Church had and has the consciousness that only God can forgive sins (cf. Mk 2,7). For that reason she had to learn to discern carefully and almost with reverent awe what powers the Lord transmitted to her and which he did not.6

The Protestant Reformers had lamented the medieval development in penitential jurisdiction,

arguing that it lacked biblical foundation. Yet, as Ratzinger points out, it was precisely the texts

of Sacred Scripture which the Fathers at Trent used as their principle point of departure in

discerning the powers entrusted to the apostles:

The Fathers of the Council of Trent understood the words of the Risen One to his disciples in Jn 20,22f as the specific words of the institution of the sacrament:“Receive the Holy Spirit, whose sins you shall forgive they are forgiven them, whose sins you shall retain, they are retained.” Starting with Jn 20 they interpreted Mt 16,19 and 18,18 and understood the power of the keys of the Church as the power for the remission of sins. They were fully conscious of the problems of the interpretation of these texts and established their interpretation in terms of the Sacrament of Penance with the help of "the understanding of the Church" that is expressed in the universal consensus of the Fathers.7

Far from lacking a biblical foundation, the judicial nature of the sacrament finds strong support

from the combined testimony given by the evangelists in their respective Gospel narratives.

6 Intervention by H. Em. Card. Joseph Ratzinger, Presentation of the Apostolic Letter in the form of motu proprio

« Misericordia Dei », Cong. for Doct. of Faith, 02 May 2002.7 Ibid.

25

Page 36: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Commenting further on the interpretation of these texts given by the Fathers at Trent, Ratzinger

continues:

The decisive point in these words of institution lies in the fact that the Lord entrusts to the disciples the choice between loosing and binding, retaining or forgiving: the disciples are not simply a neutral instrument of divine forgiveness, but rather a power of discernment is entrusted to them and with it a duty of discernment for individual cases. The Fathers saw in this the judicial nature of the sacrament.8

As we turn now to consider the Tridentine legislation on penitential jurisdiction, we shall see that

the doctrine of penitential jurisdiction itself is the fruit of the Church's theological reflection on

the words spoken to the disciples by Our Lord in the institution of the sacrament. In this

culminating moment in the history of ecclesiastical legislation on the sacrament, the long period

of maturation which marks the evolution of penitential jurisdiction finally achieves its proper

doctrinal and legal status in the Church.

3.2 The Tridentine Legislation on Penitential Jurisdiction

Up until now we have largely focused on the development of penitential jurisdiction as a

response to the practical needs of the Church. In this regard we saw how the transition from the

solemn public ritual led by the bishop to the more frequent and private confession to a priest

(who acts in the name of the Church under the bishop's authority), led to the need to develop the

canonical institute. In the midst of these practical developments were the changes which came

about under the influence of scholastic sacramental theology. The judicial character of the

sacrament of penance had more and more been recognized by the theologians and canonists who

continued to reflect upon its presence within the Tradition they sought to appropriate. This is

evidenced, inter alia, by in the penitential literature which emerged following the IV Lateran

Council. In these new libri poenitentiales, the priest-confessor is presented in a manner

analogous to that of a civil magistrate. His task consisted of investigating the dispositions of the

penitent and inquiring into the matter to be remitted or retained (the sins). Testimony was given

through the confession and evidence was gathered. After carefully weighing the facts of the case 8 Ibid.

26

Page 37: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

before him, the priest was to pass a judicial sentence remitting or retaining the sins of the

penitent and assign a penance to be fulfilled.9 As the priest acted in the name of God and of the

Church when pronouncing this judgment, it was required of necessity that apart from the power

received at sacred ordination to forgive sins, he must also have jurisdiction over concrete

penitents for whom he exercised his capacity to forgive sins. For its part, the Council of Trent

receives this essential teaching of the Church and seeks to develop the penitential doctrine even

further.

In response to the Protestant assertion that the words spoken by the priest simply

announce what is already present by the faith of the sinner, the Tridentine legislation affirms that

sacramental absolution is a judgment through and by which sins are forgiven:

If anyone says that the sacramental absolution of the priest is not a judicial act, but an empty service of pronouncing and declaring to the one confessing that his sins are forgiven. . . let him be anathema.10

It is important to notice that the language being used here is not that of proffering a doctrinal

definition of the sacrament. To the contrary, the tone is one which indicates the teaching as

having been well established in the Tradition. While the use of the term 'judicial act' is here used

for the first time to describe the sacramental action, there had been no doubt in the mind of the

council that the power of remitting and retaining sins had always been judicial. Having

established the Tridentine understanding concerning the nature of sacramental absolution, let us

now turn to the legislation on penitential jurisdiction which flows logically out of this

understanding.

Beginning from the conviction that the sacrament of penance was itself judicial, the

Fathers at Trent were naturally forced to deal with the question of penitential jurisdiction in a

more explicit manner. In particular, the question of the relationship of jurisdiction to the validity

9 cf. W. RICHARDSON, The Validity of the Sacrament of Penance as Administered by the Priests of the Society of St.

Pius X (unpublished thesis Faculty of Canon Law, Saint Paul University) S.d. 4. « A judicial process demands of necessity that there be a judicial power, a knowledge of the facts and laws of the case, and a sentence. Christ gave the power to forgive sins to the Apostles and their legitimate successors which they exercise in His name and authority. The power to forgive sins is double because the minister may retain or remit them. It must be exercised according to the objective norms of divine law, the objective facts of the case and the subjective state of the penitent. In light of this, the minister passes sentence which remits or retains the sins. Retaining sins is a positive judicial sentence and must not be thought of as a non-use of the power of absolution ».

10 Council of Trent, sess. XIV, canon 9 in H. DENZINGER (ed.), Enchiridion Symbolorum. The Sources of Catholic

Dogma, St. Louis, Herder, 1957, n. 902.

27

Page 38: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

of the sacrament had to be settled. The complex history of jurisdiction, especially with regard to

the different positions taken by the popes in the previous centuries regarding the privileges of

regular confessors and their relationship to the diocesan bishop, demanded that doctrinal clarity

be brought to bear upon the institute. The essential Tridentine doctrine on penitential jurisdiction

is presented in the seventh canon of the fourteenth session of the council:

. . .because the nature and character of a judgment requires that sentence be pronounced only on those who are subjects (of the judge) the Church of God has always held, and this Council affirms it to be most true, that the absolution which a priest pronounces upon one over whom he has not either ordinary or delegated jurisdiction, is of no effect.11

If there had been any doubt concerning the necessity of jurisdiction for the validity of the

sacrament after the Lateran council, this piece of legislation forcefully put it to rest. The

Supreme Authority had affirmed that which « the Church of God has always held, » namely, that

without jurisdiction there was no sacrament. Of course, not all difficulties surrounding

jurisdiction were resolved with the above legislation. The question still remained as to where

this power of jurisdiction came from and how it would be legitimately exercised within the

Church.

While the principle achievement of the council was to be found in its doctrinal

presentation of the institute, the Fathers at Trent also helped to clarify its modes of transmission

within the Church. We read in the seventh canon from the fourteenth session of the Council that

either 'ordinary' or 'delegated' jurisdiction was required for the valid absolution of sins.12 As all

jurisdiction in the Church was understood to be derived from Christ through the person of the

Roman Pontiff, particular grants of jurisdiction were limited either to certain people or to a

particular place, etc.. By ordinary jurisdiction the Fathers at Trent understood « that power of

rule which is attached to an office by law, so that one acquiring that office eo ipso acquires the

jurisdiction connected with it ».13 All other jurisdiction was by its nature considered to be

delegated since it was dependent upon the commission of one's competent superior.14 If we 11 Counc. of Trent, Sess. XIV, c. 7.12 cf. supra, 29.13 op. cit. KELLY, 14.14 It should be noted that the terminology used to speak about jurisdiction in the Church was not a creation of the

Council of Trent. In fact, the distinction between ordinary and delegated jurisdiction has its roots in the ancient Roman law. As applied to the power exercised in the internal sacramental forum, the Council of Florence in the fifteenth century uses the words ordinariam vel ex commissione superioris when referring to penitential

28

Page 39: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

consider our discussion in the last chapter regarding jurisdiction at the IV Lateran Council, the

use of the phrase proprio sacerdote essentially pointed to the same reality. As the office of the

parish priest necessarily included the care of souls, to it was attached by the law itself

jurisdiction in the internal sacramental forum to hear validly the confessions of those who

belonged to that particular parish. In like manner, when the Lateran legislation spoke of alieno

sacerdoti when making reference to the possibility of confessing to a priest other than one's

proper pastor, we have in effect a reference to delegated jurisdiction.15 Mendicant friars or other

priests ministering in a particular territory were granted jurisdiction by their religious superior or

diocesan bishop in order to hear the confessions of secular penitents. This jurisdiction was not

attached to an office but rather derived from its lawful commission or delegation. These

distinctions prove to be useful in the sacrament of penance if and only if understood as two

expressions of the one power to forgive sins given by Christ to the apostles and their successors.

With this in mind, let us turn now to the council's development of another ancillary institute

which helped clarify the role of penitential jurisdiction by facilitating a clear distinction between

the two powers necessary for the validity of the sacrament.

3.3 The Institute of Episcopal Approbation

The canonical institute of approbation has been defined as « an act by which a bishop or

other legitimate superior grants to an ecclesiastic the actual exercise of his ministry ».16 In the

legislation which comes out at Trent regarding the sacrament of penance, we find that episcopal

approbation was required in order for any priest, whether secular or regular, to validly hear the

confessions of secular penitents (whether clerical or lay):

Although priests receive by ordination the power of absolving from sins, nevertheless the holy council decrees that no one, even though a regular, can hear the confessions of seculars, even priests, and that he is not to be regarded as qualified thereto, unless he either holds a parochial benefice or is by the bishops, after an examination, if they should deem it necessary, or in some other manner,

jurisdiction.15 cf. supra, 16.16 R. BURTSELL (ed.), « Approbation ». The Catholic Encyclopedia. Vol. 1, New York, Robert Appleton Company,

1907. 12 Aug. 2011<http://www.newadvent.org/cathen/01656b.htm>.

29

Page 40: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

judged competent and has obtained their approval, which shall be givengratuitously; any privileges and custom whatsoever, even immemorial, notwithstanding.17

We wish to highlight the fact that the Council of Trent makes a clear distinction between

approbation and the power of jurisdiction. Commenting on the relative importance of each in the

penitential discipline, McCartney writes: « Both of them were necessary, but they were not

synonymous terms. By approbation the priest was judged competent for the duty of hearing

confessions; by the grant of jurisdiction he was actually given the power to hear the confessions

of definite subjects ».18 While the institute of approbation seems to have been of more practical

use with regard to enabling regular confessors to exercise their jurisdiction in hearing the

confessions of secular penitents, the doctrinal content itself is of great importance for our

discussion. By making a clear distinction between the power of jurisdiction and the

authorization to exercise it via approbation, the Fathers at Trent mount an even more impressive

case for the autonomous character of jurisdiction in relation to the power of orders required to

hear confessions.

It will be instructive for us to consider the logical relationship between the powers of

order and jurisdiction with that of episcopal approbation according to the Tridentine legislation.

With regard to the former, the following conclusions can be drawn. While the radical power to

forgive sins is conferred in sacred ordination, it nevertheless exists « in habitu, inasmuch as in

ordination the priest receives from Christ the power of absolving sin but does not receive

subjects over whom he can exercise this power ».19 It is precisely for this reason that

Bonaventure is able to describe jurisdiction in the analogous terms of the force which moves the

key in a door.20 The key is required to open the door, but without the motion or force of the

hand, the power of the key remains only in potency. As it happens, Bonaventure's Dominican

contemporary also made use of analogy in describing the relationship between the two powers.

Aquinas speaks of the civil magistrate who « upon his appointment or election receives the

power in habitu of interpreting the law and applying it to individual cases but he cannot exercise

17 Counc. of Trent, sess. XXIII, c.15.18 op. cit. MCCARTNEY, 24. « In the case of Regulars the bishop gave them approbation, but their jurisdiction came

from the Holy See; the approval of the bishop enabled them to exercise their jurisdiction ».19 op. cit. KELLY, 16.20 cf. supra, 21.

30

Page 41: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

this power in actu until a definite district has been assigned to him and he takes his oath of office

».21 The magistrate not only needs to be elected (wherein he receives the radical power of

judging), but he must also be assigned a particular portion of people who are lawfully subject to

him in his capacity as judge. As applied to the confessor, « the power of forgiving sins received

in ordination is brought ex habitu in actu and the priest is given the ability to exercise that power

conferred upon him in ordination, on the subject now assigned to him ».22

In continuing this line of thought, we might think of episcopal approbation as somewhat

analogous to the decision of a higher civil authority, say a national bar association, which

determines whether or not a judge who has been elected is in fact fit for exercising his judicial

authority. Just as the civil judge depends upon the approval of the higher authority for the valid

exercise of his office, so too does the priest depend upon the approbation of the bishop to hear

confessions validly. This holds true at the Council of Trent for all priests who do not hold a

parochial benefice. That is to say, any priest who did not have an official pastoral office with the

care of souls needed the approbatio of the bishop to hear confessions validly. The reason that

priests who did have a parochial benefice were not required to obtain episcopal approbation was

the simple fact that it was tacitly contained in the granting of the benefice to the priest in the first

place. Approbation served as a tool in the hands of the bishops to ensure those who ministered

within their diocese were staying within the bounds of their jurisdiction in the sacrament of

penance.23 More generally, the institute served as a constant reminder to priests that their

authority in the sacramental forum was entirely dependent upon the bishop.

3.4 Melchior Cano's Argument Ex Divini Institutione

In the years which followed the Council of Trent, theologians and canonists continued to

reflect upon the doctrinal and canonical aspects of the sacrament of penance. As a result of the

Tridentine legislation which had affirmed the necessity of penitential jurisdiction for the valid

confection of the sacrament, some thinkers began to ask the question as to its relationship to 21 op. cit. KELLY, 17, fn. 7.22 Ibid., 16-17.23 op. cit. BURTSELL, « This approbation for the Sacrament of Penance is the judicial declaration of the legitimate

superior that a certain priest is fit to hear, and has the faculties to hear, the confession of his subjects ».

31

Page 42: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

divine law. It seems that the more explicit the link was established between penitential

jurisdiction and the validity of the sacrament, the more people began to ask whether the

invalidity which resulted from the absence of jurisdiction was established in virtue of

ecclesiastical law or rather followed directly from the nature of the sacrament itself (and thus

from divine law). Among those thinkers who took up this question was Melchior Cano,

sixteenth century theologian and Master of the Dominican Order. In his great treatise De

Poenitentiae, Cano argues convincingly that penitential jurisdiction flows from the divine

institution of the sacrament itself. As such, it derives its binding force not from the will of the

Legislator, but rather from the express intention of Christ. It is worth mentioning here that in

presenting this argument, Cano understood himself as faithfully interpreting the teaching of the

Council of Trent. Indeed, the fact that he wrote his treatise on penance after having participated

at the Council would suggest, if nothing else, he was well aware of the status of the doctrine as

understood by the Tridentine Fathers.

As we saw previously, Trent derived its basic doctrine of the sacrament of penance from

the interpretation which it gave to the Gospel accounts given by Matthew and John.24 In

developing his treatise, Cano too takes the testimony of the sacred authors as his principle point

of departure. In keeping with the mind of the council, he understood the judicial nature of the

sacrament to be based upon the words spoken by Christ to the apostles: « 'As the Father sent me,

so I am sending you'. After saying this he breathed on them and said: 'Receive the Holy Spirit.

For whose sins you forgive, they are forgiven; those whose sins you retain, they are retained' ».25

Cano's exegesis of this passage relies upon his understanding of the dual sacramental-judicial

character of the sacred power which is given by Christ to the apostles.26 The sanctifying power

thus transmitted includes a judicial aspect inasmuch as the power itself entails discernment and

the pronouncing of a sentence. Taken in conjunction with the passage from Matthew's Gospel,

the ecclesiastical sentence pronounced on earth is understood to be upheld in the tribunal of the

24 cf. supra, 26.25 Jn 20: 21-2326 It is worth mentioning here that in the Tridentine period discussions concerning the transmission of sacred power

made a clear distinction between the power of orders on the one hand and the power of jurisdiction on the other. With the doctrinal discussions of the Second Vatican Council, more emphasis is given to the unity of the sacra

potestas. The effort – which is not infrequently a rather labored one – to maintain this unity has contributed to the confusion which has ensued with respect to the autonomy of each power. We will discuss this issue as it relates to penitential jurisdiction in some detail in the following chapters.

32

Page 43: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

heavenly court.27 In the mind of Cano, this was clear evidence of the divine institution of the

sacrament including the necessity of penitential jurisdiction for its valid administration in the

Church.

While it is true that the Council of Trent did not teach that penitential jurisdiction was of

divine institution (whereas for example, it did teach that integral confession of sins was a precept

of divine law), Cano nevertheless understood this to be implied in view of the clear teaching on

the judicial nature of the sacrament itself. As a scholar well-versed in the principle sources and

authorities of the ecclesiastical doctrine, his analysis of penitential jurisdiction took seriously the

evidence from scripture as well as in the writings of the popes and the canons of previous

councils. For example, when he looks at the phrase proprio sacerdote used at the IV Lateran

Council, Cano sees the expression as reflecting the clear intention of Innocent III to teach a

limitation to the role of the priest-judge. The limitation in exercising the power of forgiving sins

thus implies the necessity of a power the source of which is found outside the sacrament of holy

orders. The dual sacramental-judicial framework in which Cano operates leads him to interpret

the Lateran legislation as teaching that the priest is « divinely constituted judge in the

sacramental forum only in regard to those of the faithful for whom he is the proper priest ».28

The teaching of the Council of Florence (which incorporates the text of a papal bull

issued by Eugene IV) on jurisdiction, though not as high-profile as the Lateran or Tridentine

legislation, serves as another example in which Cano views the development of the Church's

penitential doctrine to be the fruit of its reflection on Sacred Scripture. In defining the

requirements for the minister of penance, the council expressly provided: «. . .minister huius

sacramenti est sacerdos habens auctoritatem absolvendi vel ordinariam vel ex commissione

superioris. . . ».29 Cano believed this text to have in mind the words of institution spoken by

Christ, « 'whose sins you forgive. . .those you retain,' » when it outlined the teaching concerning

the requirement of jurisdiction for priests to hear confessions. As it would later be cited as an

authoritative source for the Tridentine legislation, the Florentine canon helps to support the claim

made at Trent that 'the Church of God has always held' jurisdiction to be required for the valid

27 cf. Mt 18:1828 W. NEWMAN, Jus Divinum and the Sacrament of Penance in Two Tridentine Theologians: Melchior Cano and

Ruard Tapper, Studies in Sacred Theology no. 206, Washington, Catholic University of America Press, 1969, 149.

29 op. cit. DENZINGER, n.1323.

33

Page 44: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

absolution of sins. To be sure, it was a matter of historical fact that the Church had not always

explicitly taught the requirement of jurisdiction. Just as assuredly, however, both Trent and Cano

believed the teaching to have been 'always held' in the living memory of the Church beginning

from the moment the sacrament was instituted by Christ.30 In summarizing the position taken by

Cano, William Newman writes:

From Cano's arguments it is quite clear that he considers the judicial nature of the sacrament and the judicial function of the priest to be from the explicit institution of Christ. The fact of divine institution also makes it quite clear that these two truths are de jure divino.31

In Cano's mind, the nature of penitential jurisdiction must be understood in light of the doctrine

of the sacrament of penance itself. He believed that since the nature of the sacrament was

judicial, then the requirement of jurisdiction followed logically from this essential theological-

juridical framework. When viewed from this perspective, it becomes difficult to speak of the

sacrament as being divinely instituted without at the same time affirming requirement of

jurisdiction to be itself a precept de iuro divino.

We believe the argument set forth by Cano to be representative of his general

commitment to a methodology of theological reflection whereby inquiry is made in a spirit of

intellectual and academic freedom which is ultimately guided by the teaching authority of the

Church's Magisterium. In this way, Cano's theological reflection on the nature of penitential

jurisdiction is not born out of a vacuum but rather takes on a proper historical and ecclesial

reference. Far from being a renegade theologian with controversial ideas, Cano very much

understood himself as thinking in and with the living Tradition of the Church. While many

canonists and theologians today would undoubtedly disagree with his position, the fact is that it

was accepted as a legitimate position to be held within the bounds of orthodox Catholicism.

Moreover, if we consider Cano's prominence in the Church during the sixteenth century, both in

his capacity as Master of the Dominican Order and in his participation at the deliberations at

Trent, there can be no doubt concerning the acceptance by the Church, at least tacitly, of his

30 Here we do well to recall the rather explicit connection made between the ecclesiastical sentence and the divine pardon as found in the writings of Cyprian in the third century. Far from being a product of scholastic theology, the requirement of jurisdiction when reconciling penitents in the name of God and of the Church traces itself back to the divine institution of the sacrament itself.

31 op. cit. NEWMAN,149.

34

Page 45: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

published work on penance. If the Church had found his writing to be heretical, especially

during a time when the very identity of Catholic doctrine was at stake, we can be sure he would

have been reprimanded by the Supreme Authority. That he was not testifies to his argument ex

divini institutione as being a legitimate option for Catholics to hold.

While the Church has never issued any official pronouncement concerning the

relationship of penitential jurisdiction to the establishment of the sacrament in divine law, we

believe certain statements which have been made by the Supreme Authority to be consonant with

the position taken by Cano. Among them is found an apostolic constitution issued by Pope Pius

VI in 1794 in which he condemned the errors of the Synod of Pistoia. In writing against the

Jansenist inspired view of the sacrament which attributed to the institute of penitential

jurisdiction a mere function of good governance, the Pontiff declares:

The teaching of the synod, which declares concerning the authority for absolving received through ordination that "after the institution of dioceses and parishes, it is fitting that each one exercise this judgment over those persons subject to him either by reason of territory or some personal right," because "otherwise confusion and disturbance would be introduced"; since it declares that, in order to prevent confusion, after dioceses and parishes have been instituted, it is merely fitting that the power of absolving be exercised upon subjects; so understood, as if for the valid use of this power there is no need of ordinary or delegated jurisdiction, without which the Tridentine Synod declares that absolution conferred by a priest is of no value,—false, rash, dangerous, contrary and injurious to the TridentineSynod, erroneous.32

We believe the pope's condemnation of this view on jurisdiction to be evidence for his doctrinal

understanding of the institute. It is clear that in the mind of Pius VI, the necessity of penitential

jurisdiction arose not simply as an extrinsic means to facilitate clear lines for the administration

of the sacrament. Much like the position of Bonaventure and later developed by Cano, the

Pontiff seems to suggest a more profound theological vision of jurisdiction which acknowledges

the operative force of the institute within the sacrament. As we look ahead to the 1917 Code of

Canon Law, we will continue to see a markedly theological justification for the institute being

brought forth.

32 PP. PIUS VI, Const. « Auctorem Fidei, » S.d., S.l., 28 August 1794, condemn. prop. 37.

35

Page 46: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Chapter Four

Penitential Jurisdiction in the 1917 Code of Canon Law

4.1 The Requirements of the Minister

In its preliminary canon which opens Title IV of Book III, De poenitentia, the 1917 Code

lays down the essential doctrine of the Church's penitential discipline:1 « In the sacrament of

penance, through judicial absolution imparted by a legitimate minister, those sins committed

after baptism are remitted from the rightly disposed faithful ».2 From this definition can be

deduced the theological and canonical purview which will serve as the principle point of

departure for the rest of the canons which follow in Title IV. This preliminary canon thus

provides an important reference for considering the doctrine of penitential jurisdiction, especially

with regard to understanding the relationship between the judicial nature of the sacrament as

instituted by Christ and the dual requirement of orders and jurisdiction prescribed in the law for

its valid administration. Before looking at this interplay from the perspective of the minister of

the sacrament, a few words are in order with respect to the formation of the preliminary canon.

Upon examining the text of canon 870, one is immediately struck by the similarity

between the language employed with that of the Lateran and Tridentine legislation which

precedes it. On the one hand, the legislation at Lateran IV is called to mind by the words

'legitimate minister' used in the canon to describe the priest who has authority to absolve

penitents. This usage seems to appeal directly to the principle laid down by Innocent III in his

decree Omnis utriusque sexus concerning the necessity of confessing to one's proper priest.3 On

the other hand, the Tridentine legislation on the sacrament can be seen in the canon's use of the

words 'judicial absolution' to describe the manner in which the forgiveness of sins is ordinarily

obtained in the Church.4 When taken together in the dependent clause, « through judicial 1 All English translations of the CIC/17 are taken from E. PETERS (ed.), The 1917 or Pio-Benedictine Code of

Canon Law in English Translation with Extensive Scholarly Apparatus, San Francisco, Ignatius Press, 2001.2 Canon 870, CIC 1917, « In poenitentiae sacramento, per iudicialem absolutionem a legitimo ministro

impertitam, fideli rite disposito remittuntur peccata post baptismum commissa ».3 cf. supra,16ff.4 It is important here to recall that the Church has always believed in the possibility of obtaining forgiveness from

36

Page 47: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

absolution imparted by a legitimate minister, » it becomes clear that the essential requirements of

the minister (i.e. those elements expressly provided by the law which bear directly upon the

validity of the sacrament) are here understood to flow out of, rather than give rise to, the judicial

nature of the sacrament.

In echoing the Council of Trent's declaration, the first canon in the chapter on the minister

of the sacrament states: « The minister of this sacrament is only a priest ».5 This canon serves to

identify the minister of penance as one invested with the sacerdotal character, thereby excluding,

inter alia, the possibility of confessing validly to a deacon or layman.6 We can therefore say that

the fundamental requirement for administering the sacrament of penance is the reception of holy

orders. The sacred indelible character imprinted on the soul of the priest at ordination provides

the radical capacity to forgive sins in the name of Christ. Nevertheless, as it has by now become

clear, this power exists only in potency without the autonomous and complementary power of

jurisdiction which is determined by the Church for its valid exercise. Thus we find the

traditional doctrine of the two powers upheld in canon 872 of the CIC/17: « Besides the power of

orders, for the valid absolution of sins there is required in the minister the power of jurisdiction,

whether ordinary or delegated, over the penitent ».7

Following the logic of the Tridentine legislation, Cano's argument ex divini institione

envisioned both the requirement for the power of orders as well as the power of jurisdiction as

deriving from the essence of the sacrament as established by Christ. Both powers come from

Christ through the Church, the former at the hands of the bishop through the sacrament of holy

orders, the latter from the canonical mission (which is understood as establishing a moral

relationship between the minister to the flock entrusted to his care) which is given by the

competent ecclesiastical authority. As forgiveness is granted both in the name of Christ and in

the name of the Church, both the power of sanctifying the faithful received in ordination as well

as the power of jurisdiction granted by the Church are necessary for validity. With these first

God through an act of perfect contrition apart from receiving sacramental absolution (though the Church's understanding of the former was such that it contained implicitly the desire to confess to a legitimate priest).

5 Canon 871, CIC 1917, « Minister huius sacramenti est solus sacerdos ».6 It should be noted that the use of the term sacerdos here, in contrast to its usage in the first centuries of the

Church, refers to men in presbyteral orders as well as those consecrated as bishops. This is the authentic interpretation of the term as it is used by the Legislator in the current law in force.

7 Canon 872, CIC 1917, « Praeter potestatem ordinis, ad validam peccatorum absolutionem requiritur in ministro potestas iurisdictionis, sive ordinaria sive delegata, in poenitentem ».

37

Page 48: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

principles in mind, we can now proceed in our analysis of the particular norms which govern the

acquisition, extent and cessation of jurisdiction as outlined in the canons which follow in Title IV

of Book III.

4.2 Ordinary Jurisdiction: Acquisition, Extent and Cessation

The 1917 Code retains the traditional distinction between ordinary and delegated

jurisdiction found in the Tridentine legislation and seeks to further define the scope of each with

greater precision.8 While the provisions established concerning ordinary jurisdiction are found

within Title IV of Book III, De poenitentiae, the norms which govern delegated jurisdiction are

found within the framework of Book I on General Norms.9 This is due to the fact that in the

1917 Code, penitential jurisdiction is understood to be a species of the munus regendi (ruling

function) of the Church. Thus it is the case that in the absence of any detailed canons concerning

delegated jurisdiction in Book III, the relevant general norms of Book I apply. Nevertheless,

from the point of view of doctrine, it is necessary that we first grasp the principle canons on

ordinary jurisdiction in order that we can properly understand how they effect and apply to the

delegated mode of its transmission.

Immediately following the doctrinal canon concerning the necessity of both powers for

the valid absolution of sins, canon 873 of the CIC/17 provides the norms which govern the

acquisition, extent and cessation of ordinary penitential jurisdiction:

§ 1. Ordinary jurisdiction for taking confessions throughout the universal Church belongs to, besides the Roman Pontiff, Cardinals of the H.R.C.; for their own territory, [likewise] local Ordinaries and pastors and those who have the place of pastors.

8 As mentioned previously, the distinction between ordinaria and delegata was already being used to describe the modalities of the power of governance in the Church well before the Council of Trent. For a very interesting commentary on the Roman Law influence on the canons concerning ordinary and delegated jurisdiction, cf. B. DEUTSCH, Ancient Roman Law and Modern Canon Law in The Jurist 30 (1970) 182-190.

9 As we shall see in the next chapter, the influence of the Second Vatican Council will bring about a doctrinal development concerning the nature of the institute. As it is received in the 1983 Code, jurisdiction in the sacrament of penance is expressed by the term facultas which corresponds to the desire of the Legislator to distinguish the sacramental power from that of the munus regendi strictly speaking.

38

Page 49: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

§ 2. This same jurisdiction is enjoyed by canons penitentiary even in collegiate churches, according to the norm of Canon 401, § 1, and exempt religious Superiors for their subjects, according to the norm of the constitution.

§ 3. This jurisdiction ceases upon loss of office according to the norm of Canon 183, and after a condemnatory or declaratory sentence, excommunication, suspension from office, and interdict.10

The specificity which marks this canon is the fruit of more than three centuries of papal

legislation which followed the Council of Trent.11 Its principle achievement lies in the fact that it

clarifies the subjects of ordinary jurisdiction and provides for the various ways in which the

power can be lost. It could now be said without ambiguity that from the moment that an

ordained priest took possession of certain designated offices, he acquired ordinary jurisdiction to

administer validly the sacrament of penance. Moreover, with the determination by the law of

how the power could be lost, the canonical delict of hearing confessions without the necessary

jurisdiction could now be established in the universal law of the Church.

Under the 1917 Code, only the pope or members of the College of Cardinals possessed

ordinary jurisdiction in the internal sacramental forum for the universal Church. To them alone

belonged the power to grant absolution to any member of the Church throughout the world.

Moreover, as pastor of the universal Church the pope enjoyed a unique place within the

framework of this power. As noted by Donald Webber, « The constant teaching of the Church

affirmed that the universal ordinary jurisdiction of the Roman Pontiff was of divine origin ».12

The doctrinal roots of this teaching are grounded in the same verses of Sacred Scripture which

the Council of Trent appealed to in support of the necessity of jurisdiction in the sacrament of

penance.13 The Tridentine conception of penitential jurisdiction which is retained in this canon

10 Canon 873, CIC 1917, « § 1. Ordinaria iurisdictione ad confessiones excipiendas pro universa Ecclesia, praeter Romanum Pontificem, potiuntur S.R.E. Cardinales; pro suo quisque territorio Ordinarius loci, et parochus aliique qui loco parochi sunt. § 2. Hac eadem iurisdictione gaudent etiam canonicus poenitentiarius ecclesiae quoque collegiatae, ad normam can. 401, § 1, et Superiores religiosi exempti pro suis subditis, ad normam constitutionum. § 3. Haec iurisdictio cessat amissione officii, ad normam can. 183, et, post sententiam condemnatoriam vel declaratoriam, excommunicatione, suspensione ab officio, interdicto ».

11 The fontes of the canon includes the following Post-Tridentine papal legislation: Gregory XV's Const. Inscrutabili of 5 Febr. 1622; Clement X's Const. Superna of 21 June 1670; Clement XII's Const. Admonet Nos of 11 Aug 1735; Benedict XIV's Const. Etsi pastoralis of 26 May 1742 and Apostolicum ministerium of 30 May 1753.

12 D. WEBBER, Confessional Faculties: A Comparison Study of the 1917 and 1983 Code of Canon Law (unpublished thesis Faculty of the School of Religious Studies, Catholic University of America), Washington, 1984, 13.

13 cf. supra, 26. « Starting with Jn 20 they interpreted Mt 16,19 and 18,18 and understood the power of the keys of

39

Page 50: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

can thus be re-interpreted along the lines of Ratzinger's assessment discussed above. Flowing

from the judicial nature of the sacrament, the power transmitted by Christ to the apostles in John

20:23 can rightly be seen as a real participation in two-fold power of the keys, the fullness of

which is entrusted to Peter alone in Matthew 16:18. In this way, the divine law status of the

Roman Pontiff's jurisdiction could be seen as a genus to the species of all penitential jurisdiction

exercised within the Church.

It remains for us here to consider the norms governing the cessation of the power of

jurisdiction in its ordinary mode of transmission. Inasmuch as ordinary penitential jurisdiction

was attached to an ecclesiastical office, the loss of that office necessarily entailed the loss of the

power. The general norms laid down in canon 183 of the CIC/17 concerning the loss of

ecclesiastical office would therefore apply in determining when the power had in fact been lost.

That canon provides that an ecclesiastical office may be lost (i) by resignation once accepted by

the superior, (ii) by transfer, (iii) by the lapse of time defined in the appointment, (iv) by removal

or (v) by deprivation.14 All of these are conditions in which the power could no longer be

exercised validly. It should not be forgotten, however, that in addition to these provisions, there

existed the possibility of restricting the lawful exercise of the power. Thus, for a grave reason

bishops could forbid pastors and even canon penitentiaries the licit use of exercising the ordinary

jurisdiction which was attached to their office.

As regards restricting the use of jurisdiction ad validatem, it is here worth recalling the

institute of episcopal approbation which has fallen into desuetude in the 1917 Code. The

institute had hitherto been used as an instrument for safeguarding the penitential discipline from

abuses and also served to provide greater doctrinal clarity as regards the distinction between the

power of orders and the power of jurisdiction. Whereas the Tridentine legislation required the

distinct juridical moment of episcopal approbation in order that penitential jurisdiction be

exercised validly, now the approbatio is understood to be included in the grant of jurisdiction

itself.15 To be sure, the 1917 Code did not abandon the practice of ascertaining the fitness of

the Church as the power for the remission of sins ».14 Canon 183, CIC 1917, « § 1. Amittitur officium ecclesasticum renuntiatione, privatione, amotione, translatione,

lapsu temporis praefiniti. § 2. Resoluto quovis modo iure Superioris a quo fuerat concessum, officium ecclesiasticum non amittitur, nisi lex aliud caveat aut nisi in concessione habeatur clausula: ad beneplacitum nostram, vel alia aequipollens ».

15 When this practice is combined with the term facultas to describe the power in the 1983 Code, the result is a loss of doctrinal clarity concerning its operative role within the structure of the sacrament.

40

Page 51: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

prospective ministers of the sacrament. Canon 877 provides the following requirements in this

regard:

§ 1. Neither local Ordinaries or religious Superiors are to grant permission or jurisdiction for the hearing of confessions except to those who are shown to be suitable by examination, unless it concerns a priest whose theological learning is demonstrated in another way.

§ 2. If, after the granting of jurisdiction, they prudently doubt whether the one approved by them continues to be a suitable priest, [the latter] can be put through a new test of doctrine, even if it concerns a pastor or canon penitentiary.16

Rather than retain the institute of approbation as autonomous from the grant of jurisdiction as in

the previous discipline, what we see now is the institute being more or less subsumed under the

juridical requirements envisioned in the canon above. To sum up then, under the 1917 Code the

norms pertaining to the cessation of ordinary penitential jurisdiction were less expansive than

had been contained in the ius vetus. In order to deny a minister who by virtue of their office

possessed ordinary jurisdiction the authority to absolve validly, the only options available to the

bishop were those outlined above concerning the loss of ecclesiastical office or through penal

sanctions imposed upon the cleric for an offense committed.

4.3 Delegated Jurisdiction: Acquisition, Extent and Cessation

According to the provision established by canon 872 of the CIC/17, in the absence of

possessing ordinary jurisdiction, a priest would need to be delegated jurisdiction in order to

administer the sacrament of penance validly. This mode of penitential jurisdiction was necessary

to accommodate priests who served in a variety of ministerial capacities within the diocese,

though not as a pastor, etc.. This delegation was normally included in the diocesan faculties

given to priests in order to exercise their ministry within a particular ecclesiastical

circumscription. That the power of jurisdiction was included among the diocesan faculties

16 Canon 877, CIC 1917, « § 1. Tum locorum Ordinarii iurisdictionem, tum Superiores religiosi iurisdictionem aut licentiam audiendarum confessionum ne concedant, nisi iis qui idonei per examen reperti fuerint, nisi agatur de sacerdote cuius theologicam doctrinam aliunde compertam habeant. § 2. Si post concessam iurisdictionem aut licentiam prudenter dubitent num probatus a se antea sacerdos pergat adhuc idoneus esse, eum ad novum doctrinae periculum adigant, etsi agatur de parocho aut canonico poenitentiario ».

41

Page 52: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

granted by the bishop is important not only for understanding the source of its grant – namely

that of the diocesan bishop – but also for the purposes of better understanding the transition

which will take place in the 1983 Code concerning the use of the terms to describe the power

transmitted in that grant. In drawing upon Hubert Motry's study of diocesan faculties, Webber

observes: « The terms “jurisdiction” and “faculties” were sometimes regarded as synonymous,

but “faculties” is the wider term. The power or jurisdiction to hear confession was one of the

concessions or faculties granted by the bishop ».17

With due regard for the general norms governing delegated power in Book I of the

CIC/17, the essential law on delegated penitential jurisdiction is provided by canon 874:

§ 1. Where confessions are heard, the local Ordinary confers delegated jurisdiction on secular or religious priests to receive confessions of anyone whether secular or religious; religious priests are not to use this without the at least presumed permission of their Superior with due regard for the prescription of Canon 519.

§ 2. Local Ordinaries shall not grant jurisdiction for the hearing of confessions habitually to religious who are not presented by their own Superior; but for those who are presented by their own Superior, it shall not be denied except for grave cause, with due regard for the prescription of Canon 877.18

According to the canon above, the local ordinary could delegate jurisdiction to any priest to hear

the confessions of any person in his territory. By using the broader term 'local ordinary' as

opposed to 'diocesan bishop' the canon has envisioned the possible grantor of this jurisdiction as

the diocesan bishop as well as anyone with general ordinary executive power within the diocese.

Thus, in addition to those among the secular diocesan clergy who could grant jurisdiction, the

superiors of exempt clerical religious institutes could, in virtue of canon 875, delegate penitential

jurisdiction to any priest for hearing the confessions of their subjects.19 Upon or any time after

17 op. cit. WEBBER, 17.18 Canon 874, CIC 1917, « § 1. Iurisdictionem delegatam ad recipiendas confessiones quorumlibet sive

saecularium sive religiosorum confert sacerdotibus tum saecularibus tum religiosis etiam exemptis Ordinarius loci in quo confessiones excipiuntur, sacerdotes autem religiosi eadem ne utantur sine licentia saltem praesumpta sui Superioris, firmo tamen praescripto can. 519. § 2. Locorum Ordinarii iurisdictionem ad audiendas confessiones habitualiter ne concedant religiosis qui a proprio Superiore non praesentantur; iis vero qui a proprio Superiore praesentantur, sine gravi causa eam ne denegent, firmo tamen praescripto can. 877 ».

19 Canon 875, CIC 1917, « § 1. In religione clericali exempta ad recipiendas confessiones professorum, novitiorum aliorumve de quibus in can. 514, § 1, iurisdictionem delegatam confert quoque proprineorundem Superior, ad normam constitutionum; cui fas est eam concedere etiam sacerdotibus e clero saeculari aut alius religionis.§ 2. In religione laicali exempta, Superior proponit confessarium, qui tamen iurisdictionem obtinere debet ab

42

Page 53: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

its grant, the extent of delegated jurisdiction could be restricted by the local ordinary as regards

particular reserved sins or the place in which the power could be exercised, etc.. The possibility

of placing certain restrictions as regards the scope of penitential jurisdiction logically followed

from the nature of the institute itself. In other words, the fact that the power was delegated

naturally included the possibility of its being limited for the good and spiritual well-being of the

Church. To be sure, such restrictions could also be placed on those who possessed ordinary

jurisdiction, though in the latter case such restrictions often pertained to liceity only. For

example, not all pastors had the power to absolve from certain more serious sins, such as

desecration of the Holy Eucharist or the procurement of an abortion. It had been the immemorial

custom of the Church that such offenses be left to the discernment of the bishop whose

theological and pastoral training would have rendered him more adept in pronouncing judgment

in these very difficult cases.20 Finally, it is worth pointing out that the power to limit the grant of

jurisdiction was not an arbitrary one. The local ordinary was still bound to observe the precepts

established by universal law and thus could not place restrictions upon those rights which the

Supreme Authority had given to all priests.21

As we had mentioned above, in the absence of norms in Book III concerning delegated

jurisdiction in the sacrament of penance, the general norms in Book I would apply. The relevant

canons in Book III do not contain norms regarding the cessation of this power, and so we must

refer back to the norm found in canon 207 on the termination of delegated jurisdiction. That

canon provides the cessation of delegated power upon (i) the completion of the mandate, (ii) the

lapse of time noted in the concession, (iii) the exhaustion of the number of cases for which

jurisdiction was granted, (iv) the cessation of a purpose for the delegation, (v) at the notification

of the revocation by the grantor to the recipient and (vi) an accepted resignation.22 Of these

Ordinario loci, in quo religiosa domus reperitur ».20 op. cit. WEBER, 28, « The Church imposed restrictions on the forgiveness of certain sins for either a disciplinary

or a medicinal reason. The disciplinary measure had as its purpose the protection of the common good by discouraging persistent public vice and restoring Christian discipline. The secondary aim of the reservation of sins was the correction of the individual whose sins were too serious to be judged by the average confessor ».

21 Ibid., 18-19, « In delegating jurisdiction, the local ordinary could not however restrict rights given by the common law. For example, the ordinary could not forbid a confessor from hearing the confessions of religious men and women who approached him for the tranquility of their consciences, according to canons 519 and 522, respectively ».

22 Canon 207, CIC 1917, « § 1. Potestas delegata exstinguitur, expleto mandato; elapso tempore aut exhausto numero casum pro quo concessa fuit; cessante causa finali delegationis; revocatione delegantis delegato directe intimata aut renuntiatione delegati deleganti directe intimata et ab eodem acceptata; non autem resoluto iure

43

Page 54: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

conditions for cessation, the fourth stands alone in the potential difficulty of interpreting and

applying the norm. Notwithstanding the potential challenge therein, the rules on cessation as

presented in the CIC/17 have permitted a greater level of juridical certainty with regard to the

possession and loss of the power itself. As such, they have allowed the Legislator a

commensurate level of confidence in establishing in the universal law a penalty for hearing

confessions without the necessary jurisdiction to do so.

4.4 The Delict of Hearing Confessions Without Jurisdiction

Up until now we have made passive references to historical circumstances in which the

Church has sought to safeguard the penitential discipline from abuses by threatening and

imposing ecclesiastical sanctions for offenses committed in its administration. To the limited

extent that we have considered the penal protection of the sacrament of penance, we have

attempted to show the necessity of the ecclesiastical authority to establish determinate penalties

in order to ensure its valid and lawful celebration. While certain more notorious offenses against

the dignity of the sacrament such as the violation of the seal had already been well established in

the penal law tradition of the Universal Church, other offenses remained in the gambit of

particular law. Such is the case with the offense in question. With the promulgation of the 1917

Code, we have for the first time a penalty established by the Legislator for the universal Church

which sought to redress the offense of hearing confessions without jurisdiction.23 Canon 2366

provides:

A priest who, without necessary jurisdiction, presumes to hear sacramental confessions is by that fact suspended from divine things; but one who absolves from reserved sins is by that fact suspended from hearing confessions.24

delegantis, nisi in duobus casibus de quibus in can. 61. § 2. Sed potestate pro foro interno concessa, actus per inadvertentiam positus, elapso tempore vel exhausto casuum numero, validus est ».

23 cf. supra, 5. Cyprian's declaration here anticipates what would eventually be enshrined in the universal law of the Church. Although the censure is established for the first time in the common law with the promulgation of the 1917 Code, the fontes for canon 2366 provide a veritable host of previously issued legislation which undoubtedly helped influence its inclusion as a delict in the CIC/17. Despite its technical formulation in the ecclesiastical penal law being a rather late development, it seems that a strong case can be made for the substance of the offense itself to have existed from the institution of the sacrament.

24 Canon 2366, CIC 1917, « Sacerdos qui sine necessaria iurisdictione praesumpserit sacramentales confessiones audire, est ipso facto suspensus a divinis; qui vero a peccatis reservatis absolvere, ipso facto suspensus est ab

44

Page 55: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

There are two new censures in this canon, the first of which is the direct object of our inquiry

here. The censure of suspension a divinis is incurred ipso facto by a priest who presumes to hear

sacramental confessions without the necessary jurisdiction. It is of supreme importance for us to

understand this offense to have been established in the penal law as it arises in connection with

the doctrinal development of the institute of jurisdiction. Indeed, the offense only takes on its

full significance when understood against the backdrop of the theological rationale for the

necessity of jurisdiction which has been received in the Tradition.

In addition to acknowledging the presence of the delict itself, it is necessary that we

understand the basic contours of its commission in the eyes of the law. In other words, what

exactly constitutes the offense as having been committed? In his probative study on delicts

committed in the administration of the sacraments, George Murphy writes: « In order to incur

this penalty it is not necessary that absolution be imparted. Sacramental confession on the part

of the penitent suffices, that is, that the penitent should tell his sins to the priest lacking

jurisdiction with the hope or expectation of obtaining absolution ».25 He goes on to point out that

commentators on this canon have different opinions with respect to its relationship to supplied

jurisdiction. While space does not permit a detailed discussion of the principle of ecclesia

supplet, it is sufficient for our purposes here simply to acknowledge the Church's benevolence

towards penitents through this canonical institute.26 In this regard we make as our own the

observation made by Chelodi: « The Church supplies jurisdiction for the sake of the faithful, and

does not grant it in favor of the priest ».27 It remains true, however – and the canon's use of the

term praesumpserit affirms this – that the priest would only incur the censure if he acted with

full knowledge and deliberation. We therefore agree with Murphy in his observation that

. . .the priest would incur the suspension if he acted with full knowledge and deliberation, because the Church supplies jurisdiction in this case for the good of

audiendis confessionibus ».25 G. MURPHY, Delinquencies and Penalties in the Administration of the Sacraments, Canon Law Studies no. 17,

Washington, Catholic University of America Press, 1923, 27.26 In summary fashion, the canonical institute of ecclesia supplet provides that in the case of common error on the

part of the faithful the Church would supply the jurisdiction which is lacking in the confessor, thereby making valid the priest's absolution which would otherwise be invalid. For a detailed discussion concerning supplied jurisdiction in the 1917 Code, cf. F. MIASKIEWICZ, Supplied Jurisdiction According to Canon 209, Canon Law Studies no. 122, Washington, Catholic University of America Press, 1940.

27 op. cit. MURPHY, 28.

45

Page 56: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the faithful, and not to aid a delinquent priest to escape the penalties due to his malice.28

It will be important to keep this in mind as we consider the penalty as it is retained in the 1983

Code of Canon Law. As we look ahead we will continue to see a direct correlation between the

Church's reflection upon the nature of the sacrament of penance and the increased vigilance on

behalf of the Supreme Authority to safeguard the institute of jurisdiction in relation to its valid

and lawful celebration.

28 Ibid., 27-28.

46

Page 57: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Chapter Five

Penitential Jurisdiction in the 1983 Code of Canon Law

5.1 The Influence of Vatican II on the Doctrine of Penitential Jurisdiction

As we enter the legislation of the 1983 Code, our discussion of penitential jurisdiction

demands that we establish from the outset certain principles which will help to facilitate the

transition from the previous law. In particular, it will be important for us to identify certain key

doctrinal developments that occurred at the Second Vatican Council which greatly influenced the

formulation of the canons in the current law of the Church. It is our hope that by explicating

these principles we will be in a better position to weigh in on the continuity and development

which can be seen in view of the history of the institute which has been discussed up until now.

The first preliminary matter which needs to be dealt with concerns an important element

of the Code's reception of the teaching of Vatican II. We are here referring to the doctrinal

debate concerning the unity of the sacra potestas and the existence of two powers, one of orders,

the other of jurisdiction. As we have seen in the previous chapters, the tradition of the Church

has long recognized these two powers as functionally distinct and juridically autonomous. In

observing the unique interplay between the two powers inside the penitential forum, Klaus

Mörsdorf has regarded the sacrament of penance as

the most telling instance of collaboration between the power of orders and the power of jurisdiction as two causes together producing a single sacramental effect, namely, reconciliation with God and with the Church.1

Despite the ubiquitous presence of the two powers and their reciprocal cooperation in bringing

about the effects of the sacrament, the terminology with which the Second Vatican Council has

chosen to express itself on this issue has lead some to question the traditional doctrine.

Commenting on the linguistic approach taken by the council, Eugenio Corecco writes:

. . .it is undeniable that Vatican II chose to express itself, when dealing with the Church's power, by means of the unitary idea of sacra potestas, which is outside

1 E. CORECCO, G. BORGONOVO, & A. CATTANEO, Canon Law and Communio: Writings on the Constitutional Law of

the Church, Città del Vaticano, Libreria editrice vaticana, 1999, 275.

47

Page 58: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the tradition of the 1917 Code and avoids the ideas of “power of orders” and “power of jurisdiction.”

As applied to the sacrament of penance, the new Code has replaced the word potestas with the

word facultas to describe that which is required in addition to the power of orders to validly

absolve penitents. As a result of this shift in terminology Corecco is led to believe there has been

a rupture in the Church's doctrinal understanding concerning the necessity of that power which

has its origin outside the sacrament of holy orders:

The conclusion must be that the Code no longer maintains (as the old Code could be said to maintain) that the administration of the sacraments is a joint act of the power of orders and the power of jurisdiction (understood as having two material contents), but thinks of it as being rather the effect exclusively of the power of orders.2

We disagree with Corecco on this point and, in agreement with John Huels, find the distinction

between the power of orders and the power of jurisdiction to be very much alive and well both in

the Council and in the new Code's legislation on the sacrament of penance. Huels writes:

While Vatican II did not use the term, “power of jurisdiction,” jurisdiction is still very much a reality in Church law. It is a true “power” which is required by law for a person to perform certain acts.3

In his further commenting on the function of jurisdiction in the sacrament of penance, Huels

aptly summarizes the issues at stake concerning the pre-conciliar and post-conciliar discourse on

the requirement of penitential jurisdiction:

The minister of the sacrament of penance. . .exercises a sanctifying function, one which nevertheless requires both the power of orders and the power of jurisdiction. Past canonical theory held that the power of orders pertains to the sanctifying aspect of penance, but the power of jurisdiction pertains to the governance, the judicial aspect. The Church taught at Trent that jurisdiction was required for penance because it is a judicial act. The priest acts as judge in giving absolution and in pronouncing sentence imposing a penance. Today the theology of penance has considerably evolved, and the judicial aspects of this sacrament are deemphasized. Nevertheless, one can still theoretically justify the law requiring confessional faculties because quite simply jurisdiction is applicable to sanctifying functions also.4

2 Ibid., 276.3 J. HUELS, Another Look at Lay Jurisdiction in The Jurist 41 (1981) 62.4 Ibid., 66.

48

Page 59: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Having established the legitimacy of maintaining the traditional distinction between orders and

jurisdiction within the framework of the 1983 Code, let us turn now to consider some important

aspects of the formulation of the law on the sacrament itself.

Following the promulgation of the Second Vatican Council's Constitution on the Sacred

Liturgy in 1963, work began in earnest to revise the sacrament of penance in order that the rite

and formula would « more clearly express both the nature and effect of the sacrament ».5 The

liturgical revision of the rite would be completed ten years later in 1973 and was meant to be

instructive to the committee entrusted with drafting the first schema of legislation on the

sacrament.6 In comparing the text of the Ordo Penitentiae and the first Schema de Sacramentis,

one can rightly ask the question as to what extent the new liturgical rites actually shaped the

legislation process. Various commentators have observed that the coetus seems not to have

shared precisely the same vision of the sacrament as had the liturgical commission which

produced the revised Ordo.7 The tension which has been identified here is often framed in terms

of a fundamental disconnect between the Tridentine view of the sacrament as opposed to the

view taken at the Second Vatican Council.8 This view is problematic for a number of reasons

which space and time do not allow us to go into. What is important is that we recognize this

view as one which naturally lends itself to arriving at the conclusion that the new Code has

abandoned the necessity of penitential jurisdiction for the valid celebration of the sacrament. As

we shall see, there was indeed a doctrinal development in the new Code with respect to

understanding the nature of the institute. That a development has occurred, however, is hardly

proof that, as Corecco argues, the Legislator has determined penitential jurisdiction to be a mere

formality to be observed for the sake of good governance.9

5 Sacrosanctum concilium,72 in AAS 56 (1964): 97-157. trans. taken from A. FLANNERY (ed.), Vatican Council II:

The Conciliar and Post-Conciliar Documents, Wilmington, Scholarly Resources, 1975, 22.6 cf. Ordo Penitentiae rituale Romanum ex decreto sacrosancti Oecumenici Concilii Vaticani II instauratum

auctoritate Pauli PP. VI promulgatum, Città del Vaticano, Typis Polyglottis Vaticanis, 1974.7 Among commentators who have pointed this out are Thomas Green and James Dallen, both of whom seem to

favor the approach taken by the liturgical commission over and against the coetus which oversaw the legislative revision of the sacramental law.

8 The disconnect referred to here concerns the Tridentine and Pio-Benedictine emphasis on individual confession and absolution as being juxtaposed to the more communally oriented model of reconciliation proposed by the Second Vatican Council.

9 op. cit. CORECCO, 276. « The potestas iurisdictionis would thus no longer operate as an intrinsic factor, but only extrinsically, alongside the properly sacramental power, as a social power that is purely formal in character and sees to the correct administration of the sacraments ».

49

Page 60: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

While there can be no doubt regarding the distinctive approaches taken by the committees

in the respective revision processes, we believe this to be two sides of the same coin. In other

words, there is enough room in the sacramental theology of the Church to include both

perspectives on penance. The one does not preclude the other, and neither should their apparent

opposition be viewed as symptomatic of a rupture in the Church's penitential discipline. The

complex history of penance rather suggests the compatibility of a variety of rites (three different

rites are prescribed in the revised Ordo Penitentiae) alongside a juridically stable expression of

penitential doctrine as contained in the Church's law on the sacrament. Even if the rites

contained in the revised Ordo could prima facie be interpreted as evidence in support of

Corecco's theory on jurisdiction in the sacrament – and the case would need to be made – it

remains true that where the Code does legislate on matters pertaining to the celebration of the

sacraments, it enjoys precedence over the prescriptions found in the liturgical books.10

A few final words concerning the legislative history of the 1983 Code are in order before

proceeding to analyze the text of the canons themselves.11 In March of 1975 a schema of 361

canons on sacramental law was sent to the bishops throughout the world and others who were

involved in the consultative process. The schema itself represented the sum total of the work

done by two study groups, one dealing with the canons on marriage, and the other with the

remaining sacraments. Although there are some discussions recorded on select canons, there are

unfortunately no detailed reports concerning those on the sacrament of penance. The first draft

of the entire Code was finally distributed to members of the Commission for the Revision of the

Code in 1980. The following year in August of 1981 a Relatio was published which contained

the response of the Commission to the animadversions and introduced certain changes. A final

plenary session of the Commission was held on October 20 – 29, 1981, and after making further

emendations, the Commission voted to present the schema to the Holy Father. Pope John Paul II

promulgated the Revised Code on January 25, 1983. Having briefly outlined the legislative

history of the norms on penance, we are now ready to proceed in our analysis of the current law

10 This is evidenced by the modifications made to the Ordo to bring it in line with the 1983 Code. cf. Sacred Congregation for the Sacraments and Divine Worship, Variationes in novas editiones librorum liturgicorum ad

normam Codicis Iuris Canonici nuper promulgati introducendae in Notitiae 20 (1983) 549-551; International Commission on English in the Liturgy, Emendations in the Liturgical Books Following upon the New Code of

Canon Law, Washington, ICEL, 1984, 17-20.11 The following historical summary of the legislative process is substantially taken from op. cit. WEBBER, 34.

50

Page 61: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

in force.

5.2 Penitential Jurisdiction as Distinct from the Power of Governance

Just as the preliminary canon of the 1917 Code laid down the first principles from which

a correct understanding of the law on the sacrament could be established, so too the preliminary

canon of the 1983 Code provides a similar platform for our analysis here. In opening Title IV of

Book IV, canon 959 expounds the essential conciliar doctrine concerning the sacrament:12

In the sacrament of penance the faithful who confess their sins to a lawful minister, are sorry for those sins and have a purpose of amendment, receive from God, through the absolution given by that minister, forgiveness of sins they have committed after baptism, and at the same time they are reconciled with the Church, which by sinning they wounded.13

This canon accomplishes a great deal in reflecting the Church's theological and pastoral vision of

the sacrament as presented by the Second Vatican Council. This can be seen clearly in the effort

of the canon to mention forgiveness coming from God through the action of the minister and the

wider ecclesial dimension of the effects of sin.14 Most significantly for our inquiry here,

however, is the absence of the term iudicialem to describe the absolution given by the priest.

Many have viewed this absence as proof of the Church rejecting the Tridentine doctrine

concerning the judicial nature of the sacrament. This finding has far reaching implications in

how one approaches the theology of the sacrament and by extension the doctrinal position of the

institute of penitential jurisdiction.15 In order to dispel any doubts concerning the rejection of the

Tridentine doctrine, a close look at the record of the discussions which took place when this

canon was being formulated will prove to be instructive to our analysis.16

12 Unless otherwise indicated, all English translations of the canons of the CIC/83 are taken from E. CAPARROS (ed.) et. al., Code of Canon Law Annotated: Second edition revised and updated of the 6th Spanish language edition, Montréal, Wilson & Lafleur, 2004.

13 Canon 959, CIC 1983, « In sacramento paenitentiae fideles peccata legitimo ministro confitentes, de iisdem contriti atque propositum sese emendandi habentes, per absolutionem ab eodem ministro impertitam, veniam peccatorum quae post baptismum commiserint a Deo obtinent simulque reconciliantur cum Ecclesia, quam peccando vulneraverunt ».

14 op. cit. RICHARDSON, 10.15 As we have endeavored to show the institute of penitential jurisdiction to hinge upon the judicial nature of the

sacrament, its retention in the 1983 Code can only properly be understood by first acknowledging the reception by the Code of the traditional doctrine.

16 These discussion are found in Communicationes 10 (1978) 50.

51

Page 62: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Five consultors are seen to be present at the official discussions on this canon, each of

whom give their opinion as to the relative merits of using the term iudicialem to describe the

absolution granted by the priest. William Richardson has provided an excellent summary of their

individual opinions which help to set things in perspective:

One consultor was of the opinion that the term iudicialem ought not to be left out lest the judicial action in the sacrament of penance be restricted to absolution alone, because the total action of the sacrament is judicial and the Council of Trent used the term. A second consultor held that the term iudicialem must not be added, holding that absolution is more an absolutory sentence in which the action of grace prevails. A third consultor pointed out that since the adjective iudicialem was used in the Pio-Benedictine Code, if it were to be omitted, theologians might argue that a certain change in doctrine had taken place. He continued that the idea of a judgment being passed in confession ought to remain, although not necessarily in this canon. The word could be inserted where the question of confession is treated because the judicial character of the sacrament of penance must be safeguarded. The fourth consultor preferred that the adjective remain in the text, with which proposition the fifth consultor did not agree. All the consultors finally agreed that the word iudicialem should not be inserted in this canon and that it would suffice to make mention of it in another canon.17

It is clear from the discussions of the coetus that far from rejecting the Tridentine doctrine, they

rather sought to appropriate it more broadly than had the previous Code by choosing to apply the

term iudicialem to the sacrament as a whole.18

Perhaps the greatest cause of confusion concerning the doctrinal position of the institute

lies in the shift in terminology adopted by the 1983 Code to describe the power which is required

for validity in the sacrament. The text of canon 966 reads as follows:

§ 1. For the valid absolution of sins, it is required that, in addition to the power of order, the minister has the faculty to exercise that power in respect of the faithful to whom he gives absolution.

§ 2. A priest can be given this faculty either by the law itself, or by a concession

17 op. cit. RICHARDSON, 10-11.18 We believe this development to be in keeping with the general theological emphasis given to the sacrament of

penance by the Council. In particular, the acts of the penitent could now be incorporated more explicitly within the judicial framework of the sacrament. In point of fact, the term iudicialem has been employed in three separate canons in the CIC/83 to describe the nature of the sacrament. For the standard post-conciliar doctrinal and pastoral teaching on the sacrament, cf. IOANNES PAULUS PP , Apost. Ex. Reconciliatio et paenitentia, in AAS, 77 (1985) 185-275. Of particular importance for recognizing the reception of the Tridentine doctrine, see especially no. 31 of the text. There the Pontiff explicitly refers to the sacrament as a 'judicial action'.

52

Page 63: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

issued by the competent authority in accordance with can. 969.19

What the 1917 Code had called 'jurisdiction' the new Code has named 'faculty'. Commenting on

the doctrinal significance of the use of the new term, Fernando Loza writes:

The change is not purely verbal: it underlies and responds to a different theological-canonical concept – in the former and in the current discipline – concerning this sacramental power, as something quite different from the jurisdictional power of government.20

The doctrinal development expressed in the term 'faculty' lies precisely in the distinction between

the sacramental power (and notice Loza still refers to this as a true power) from the jurisdictional

power of governance. The power which is expressed by the word 'faculty' is indeed sui generis

(of its own kind). As such, the use of the new term should rightly be regarded as providing the

law with a greater technical acumen insofar as it serves to distinguish the powers which are

exercised in the Church. As a consequence to the technical improvement which is accomplished

by the new Code, the language used to describe the grant of the power has also been modified by

the Legislator. Whereas the 1917 Code spoke of ordinary and delegated jurisdiction, the current

law speaks of the faculty being given by the law itself (ipso iure) or by special commission of the

competent ecclesiastical authority (concessione ab auctoritate competenti). Despite these

changes, however, the discipline in practice remains unchanged. That the nature of the institute

is now understood to be juridically autonomous from the jurisdictional power of governance is

clear. This is by no means, however, any sort of evidence that the Code no longer maintains the

requirement of two distinct powers for the valid confection of the sacrament.21 As will be shown

in what follows, the current law simply does not permit such an interpretation.

Beyond merely acknowledging shift in terminology used by the Code to describe the

institute, it is necessary for us to understand the logic which stands behind the Legislator's

intention here. In drawing resourcefully upon the doctrinal discussions regarding the

formulation of canon 966, Loza offers the following observation:22

19 Canon 966, CIC 1983, « § 1. Ad validam peccatorum absolutionem requiritur ut minister, praeterquam potestate ordinis, facultate gaudeat eandem in fideles, quibus absolutionem impertitur, exercendi. § 2. Hac facultate donari potest sacerdos, sive ipso iure sive concessione ab auctoritate competenti facta ad normam can. 969 ».

20 F. LOZA, Commentary on Canon 966, in A. MARZOA, J. MIRAS & R. RODRIÍ GUEZ-OCANA, Exegetical Commentary

on the Code of Canon Law, Montréal, Wilson & Lafleur, 2004, 773.21 cf. supra, 49. As we will recall, this is the explicit position taken by Corecco. 22 The doctrinal discussions on this canon can be found in Communicationes 10 (1978), 56.

53

Page 64: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

In the interest of juridical precision and internal legal coherence, the Code designates it as “faculty,” inasmuch as the term “jurisdiction” is reserved to identify the “power of governance” in its strictest sense, in accordance with c. 129ff; now, “absolution is not an act of the power of governance, which at present is well differentiated from the power which refers to the sphere of conscience.”23

From this can be deduced two central points which can be said to follow from the Legislator's

intention in framing text of the canon. On the one hand, it is clear that the sacramental power

exercised in the penitential forum is distinct from the power of governance. This is undoubtedly

the main purpose of the new language. On the other hand, the express intention to retain the

requirement of the power received outside of ordination is manifestly clear. While the radical

capacity to absolve penitents comes from the munus sanctificandi received in the sacrament of

holy orders, the penitential faculty has been retained as a true power which « allows the valid and

licit exercise of the ability which comes from ordination ».24

Many commentators on the new Code have pointed out the notable effort made on behalf

of the Legislator to simplify the norms on confessional faculties. Although this is widely

attested, we need to take care to recognize the importance of the penitential faculty in the canons

of the revised Code. Far from being pushed into the background, the institute has survived in the

current law as a requirement ad validatem in the administration of the sacrament. Moreover,

while the norms have been simplified compared to the legislation of the CIC/17, there is no

denying the presence of a rather detailed treatment of confessional faculties. Thomas Green

laments this and places it within the framework of his general critique of the law on the

sacrament. According to Green, the decision by the Legislator to retain a 'quantitatively

disproportionate' number of canons treating the minister of the sacrament (and the requirements

of that minister) is not in keeping with the 'communal thrust' of the Ordo Penitentiae. He writes:

In examining the canons on penance as a whole, a quantitatively disproportionate number treat the priest who acts as a minister of the Church, particularly because of the detailed norms on the faculty to hear confessions (ad confessiones

excipiendas), phraseology strongly reminiscent of the confession / absolution-oriented focus of the 1917 code yet inadequately sensitive to the communal thrust of the Ordo. While Vatican II had sought to highlight the ecclesial dimensions of the sacrament of penance (SC 72), there is perhaps less influence of this

23 op. cit. LOZA, 773.24 P. ARTNER, The Canonical Protection of the Dignity of the Sacrament of Penance in the Penal Law in Folia

Canonica 10 (2007) 87.

54

Page 65: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

communal thrust here than in any other sacrament in the revised code. Despite the preference of canon 837 for the communal celebration of liturgical actions, the canons on the sacrament of penance almost exclusively envision the traditional individual priest-penitent interaction in confession.25

We do not share Green's opinion that the detailed norms on the penitential faculty are somehow

less than faithful to the teaching of Vatican II. As we have said before, there is enough room in

sacramental theology (and by extension in the interpretation of the canons) to include both the

individual and communal dimensions which are present in the celebration of the sacrament.26

They need not be mutually exclusive of one another; in reality both aspects can be seen as

equally present in the current legislation.

The sharp dichotomy which Green perceives between the individual and communal

aspects of the sacrament is predicated upon the implied incompatibility between the teaching of

Trent and the teaching of Vatican II, between a hermeneutic of rupture and one of continuity.

And yet this is not consonant with the principles of liturgical reform established by the same

Roman Pontiff who mandated the reform of the sacrament of penance. Pope Paul VI writes:

The proper implementation of the Constitution on the Liturgy [Sacrosanctum Concilium] requires of you that the “new” and the “old” be brought together in a bond that is both suitable and beautiful. What must be avoided at all costs in this matter is that eagerness for the “new” exceed due measure, resulting in insufficient regard for, or entirely disregarding, the patrimony of the liturgy handed on. Such a defective course of action should not be called renewal of the Sacred Liturgy, but an overturning of it. The liturgy, in fact, displays a similarity to a hardy tree, the beauty of which shows a continual renewal of leaves, but whose fruitfulness of life bears witness to the long existence of the trunk, which acts through its deep and stable roots. In liturgical matters, therefore, no real opposition should occur between the present age and previous ages; but all should be done so that, whatever be the innovation, it be made to cohere and to concord with the sound tradition that precedes it, and so that from existing forms new forms grow, as through spontaneously blossoming from it.27

Perhaps it is this eagerness for the 'new' which Paul VI spoke of that can be seen in Green's own

25 T. GREEN, The Church's Sanctifying Office: Reflections on Selected Canons in the Revised Code in The Jurist 44 (1984) 361-362.

26 Ibid., 361. Green himself seems to admit as much at the beginning of his article: « It [canon 959] highlights the difficulty of expressing complex theological realities in statutory form. While one may articulate certain key values in a given canon, other equally significant points will be omitted ».

27 cf. Allocuzione di Paolo VI Ai Componenti Del “Consilium Ad Exsequendam Constitutionem De Sacra Liturgia” of October 29, 1964, cited in D. BUSHMAN, Pope Paul VI on the Renewal of Vatican II as an Act of the Church

Drawing from Her Treasure Things both Old and New in Nova et Vetera 9.2 (2011) 376.

55

Page 66: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

question concerning the requirement of the penitential faculty. He asks, « Why could not the

ministerial office of reconciliation be acknowledged as belonging to the priest by virtue of

ordination without the need for an additional faculty? »28 Beyond the fact that his question

presupposes that the institute itself is a requirement of merely ecclesiastical law which could be

abrogated by the Legislator, it also questions a fundamental doctrine of the Church concerning

the nature of the sacrament itself. Be as it may, one thing is clear: in formulating the canons on

the penitential faculty the Legislator has clearly chosen to retain the Tridentine doctrine

concerning its absolute requirement for validity. It will be our task in what remains to examine

the reception and development of the traditional doctrine as found in Title IV of Book IV of the

1983 Code of Canon Law.

5.3 Selected Norms on the Penitential Faculty

In the interest of space and time it will not be possible to discuss in detail all the

particular norms governing confessional faculties in the 1983 Code. We have rather chosen to

limit ourselves to an analysis of those canons which bear most directly upon the penitential

faculty as a requirement for validity in the administration of the sacrament. To this end, we wish

to begin by highlighting a canon presented in Title IV which we believe has important

hermeneutical value for interpreting the provisions which follow. We are here speaking of

paragraph 1 of canon 978 which recalls the familiar paradigm of the priest as iudicis et medicus

(judge and physician) in the administration of the sacrament. The text of the canon reads as

follows:

§ 1. In hearing confessions the priest is to remember that he is at once both judge and healer, and that he is constituted by God as a minister of both divine justice and divine mercy, so that he may contribute to the honour of God and the salvation of souls.29

It is significant that the Legislator has chosen to repeat literally the text of the ius vetus

28 T. GREEN, The Revision of Sacramental Law: Perspectives in Studia Canonica 11.2 (1977) 307.29 Canon 978, CIC 1983, « § 1. Meminerit sacerdos in audiendis confessionibus se iudicus pariter et medici

personam sustinere ac divinae iustitiae simul et misericordiae ministrum a Deo constitutum esse, ut honori divino et animarum saluti consulat ».

56

Page 67: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

concerning the role of the minister in the sacrament.30 The explicit retention of this paradigm

indicates at once that the new Code has not discarded the canonical value of the minister's

judicial role.31 Rather, the same logic which shaped the relationship between the sacrament and

the requirement of jurisdiction is found to be present in the current legislation. As we have

argued, the Church's understanding of the essential role of the priest in the penitential discipline

follows from her view of the nature of the sacrament itself, and this holds true even in the new

Code. By keeping this perspective on the norms which follow, it is our hope that the legal

prescriptions themselves will emerge as true juridical conduits aimed at achieving the two-fold

end mentioned in the canon above, namely, the honor of God and the salvation of souls.

The first matter which requires our attention and which introduces the most notable

development with respect to the previous law concerns the simplification and extent of the

penitential faculty. Somewhat analogous to the transition we saw in the medieval period from

the public to a private and more frequent system of penance, the Church gradually came to

recognize the need to improve accessibility to the sacrament by reforming the norms governing

the penitential faculty. Commenting on the difficulties inherit in the previous discipline, Weber

writes:

Legislation concerning the faculties of priests to hear confessions were in sore need of reform. The 1917 legislation was complex and restrictive for both priests and penitents. The Church had much to gain by making the rite of forgiveness more accessible instead of maintaining cumbersome administrative procedures.32

The essential reform is accomplished by the provisions set forth in canons 967 - 969 of the new

Code which provide for a radical expansion of the faculty to hear confessions. The general

principle set forth in the current law is that a priest who possesses the faculty in his own territory

enjoys the same faculty everywhere. This is qualified by the detailed provisions expressed by

the canons which have been summarized as follows:33

1) Cardinals have the faculty everywhere, with no juridical limits

2) Bishops have the same faculty, with no limits ad validatem; however, it may be refused to them ad liceitatem, in a particular case, by the bishop of

30 Paragraph 1 of Canon 978, CIC 1983 is literally identical to that of Canon 888 of the CIC 1917.31 op. cit. WEBBER, 37.32 Ibid., 41.33 The following summary of canons 967-969 has been taken from op. cit. Code of Canon Law Annotated, 749.

57

Page 68: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the diocese where they are attempting to exercise the ministry of reconciliation

3) Those who obtain the faculty vi officii, as indicated in c. 968, § 1, also enjoy it everywhere, with no limits, whether territorial or personal, unless it is refused to them by some local Ordinary, or it is revoked in their own territory. In contrast to the bishops (c. 967), the clause of c. 967, § 2, “nisi [. . .] renuerit,” is ad validatem (cf. Comm 10 [1978] 59)

4) Superiors who have the faculty vi officii (c. 968, § 2), also possess it everywhere, but only for the people, whether religious or not, who live day and night in a house of the institute or of the society.

5) Those who obtain the faculty in their own circumscription obtain it by special concession for everywhere only when it has been granted by the Ordinary of the place of incardination or of residence.

6) Finally, those who obtain the faculty by special concession from the competent superior, with executive power of governance, of a religious institute or society of apostolic life, may also exercise it everywhere, but only over the religious or persons who live day and night in a house of the institute or society.

As is evidenced by the norms outlined above, the Legislator has sought to achieve a balance

between the granting of a now practically universal faculty to hear confessions alongside certain

determinate qualifications which help to safeguard the sacrament from potential abuses. It is

opportune here to mention briefly some of the most noteworthy changes which developed in this

regard during the revision process.

Firstly, canon 967 §1 regarding the possible author of a restriction to the faculty should be

viewed in the light of the strengthened position of the diocesan bishop at Vatican II. Whereas the

former law allowed any local Ordinary to prevent a bishop from licitly hearing confessions

outside of his diocese, the current law permits only another diocesan bishop from establishing

this restriction. This is a clear instance of the ecclesiology of the council shaping the legislation

on the penitential faculty. Secondly, the text of canon 967 § 2 now includes a reference to

incardination and restricts the grantor of the faculty as being exclusively that of the local

Ordinary of the priest's domicile.34 In addition, the same canon also makes provision for the

34 The original norm contemplated in the 1980 Schema Codicis 921 made reference to the local Ordinary of the priest's quasi-domicile as also being able to grant the faculty. This reflects the concern of the Legislator to entrust

58

Page 69: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

local Ordinary denying a priest such faculties.

Beyond those changes to the law concerning the author of the grant and possible

restrictions to the faculty, there are also some select canons which introduce developments in the

criteria to be observed in its grant as well those concerning its cessation. Along with the radical

expansion of the faculty, the need to ascertain the fitness of the minister became all the more

important. Likewise, it was also necessary to determine with greater juridical precision the

conditions for its lawful revocation and cessation. Canons 970 – 973 provide the basic criteria of

the former, while canons 974 and 975 deal with the latter. We will conclude our section on the

particular norms governing the penitential faculty by considering these developments with a

view to exploring their respective role in strengthening the institute.

The suitability of the minister in connection with the grant of the faculty to hear

confessions is highlighted in canon 970 which provides: « The faculty to hear confessions is not

to be given except to priests whose suitability has been established, either by examination or by

some other means ».35 Keeping in mind the unique role of the priest in this sacrament, the

presence of certain qualities is found to be a decisive factor in determining his ability to exercise

the power to forgive sins which he has received in holy orders. The obligation to ascertain the

suitability of the minister lies precisely with those who have the power to grant the faculty. In

the words of Loza, « The verification of this required aptitude burdens the conscience and

responsibility – before God and the Church – of the grantors ».36 Thus it is clear that in the mind

of the Legislator the faculty should not be granted to a priest simply because he is a priest. The

faculty to hear confessions is therefore appropriately to be denied to a priest who, upon being

examined, has affected in the grantor « any serious and well founded doubt concerning his

aptitude ».37 While one can rightly ask whether this is seen to be the case in practice, it is

nevertheless impossible to deny the aspiration of the law in this regard.38 Finally, with respect to

the task of determining the minister's suitability to those who are more likely to make an informed decision when deciding whether or not to grant the faculty.

35 Canon 970, CIC 1983, « Facultas ad confessiones excipiendas ne concedatur nisi presbyteris qui idonei per examen reperti fuerint, aut de eorum idoneitate aliunde constet ».

36 op. cit. LOZA, 784.37 op. cit. LOZA, 786.38 cf. IOANNES PAULUS PP, Apost. Ex. Reconciliatio et Paenitentia, 29 in AAS 77 (1985) 185-275 (English trans.

provided by Office of Pub. and Promotion Services, United States Catholic Conference, 1984). The words of John Paul II help throw into relief the aspiration which is enshrined in canon 970: « For the effective performance of this ministry, the confessor must necessarily have human qualities of prudence, discretion,

59

Page 70: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

the means of verifying the suitability of the minister, it must be noted that while 'other means' are

allowed, the traditional examination should be regarded as the common and ordinary way of

determining the fitness of the priest. To sum up, this canon serves to remind us of the

importance which the legislator has placed upon the dignified and competent celebration of the

sacrament.

Another important point for our consideration is to be found in the text of canon 973

concerning the means of granting the habitual faculty to hear confessions. The canon expressly

provides: « The faculty to hear confessions is to be given in writing ».39 The content of the canon

is clear enough, although it is only upon examining the history of its formulation that the force of

its requirement takes on its full significance. The original text as seen in the 1980 Schema had

qualified the obligation to grant the faculty in writing by the words quantum fieri possit (so far as

it is possible). This qualification did not survive in the text of the canon. Although it is true that

the validity of the grant does not depend upon its being in writing, a clear effort is seen by the

Legislator to ensure its juridical stability.40 Beyond the grant itself being brought into conformity

with administrative acts in the external forum (which is its proper species under the law), the

canon also provides the one who receives the faculty with the advantage of being able to prove

its grant in that forum when it is legitimately requested. Finally, in view of possible

administrative recourse, the requirement to give the faculty in writing would be significant in the

case where the faculty was unjustly denied to a priest.41

Having analyzed some selected norms concerning the grant of the faculty, it remains for

us to say a few words regarding the current law governing its lawful revocation and cessation.

Regarding the revocation of the faculty to hear confessions, a general principle to keep in mind is

discernment and a firmness tempered by gentleness and kindness. He must likewise have a serious and careful preparation, not fragmentary but complete and harmonious, in the different branches of theology, pedagogy and psychology, in the methodology of dialogue and above all in a living and communicable knowledge of the word of God. But it is even more necessary that he should live an intense and genuine spiritual life. In order to lead others along the path of Christian perfection the minister of penance himself must first travel this path. More by actions than by long speeches he must give proof of real experience of lived prayer, the practice of the theological and moral virtues of the Gospel, faithful obedience to the will of God, love of the church and docility to her magisterium ».

39 Canon 973, CIC 1983, « Facultas ad confessiones habitualiter excipiendas scripto concedatur ».40 It should also be noted that this requirement only applies to the granting of habitual faculties to hear confessions

and not to the faculties given for a short period of time.41 op. cit. LOZA,789, « . . .the priest to whom it is denied only verbally may request that such denial and its motives

be given to him in writing, in order to have documentation when proposing a possible administrative recourse ».

60

Page 71: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

that those who may grant the faculty may also revoke it for a grave reason. Moreover, when the

faculty is revoked by the local Ordinary who granted it, the priest loses the faculty everywhere.42

Conversely, when the faculty is revoked by another local Ordinary, the faculty is lost only in the

particular territory of that Ordinary. In both cases, canon 974 expressly provides that the

Ordinary may only revoke the faculty for a grave reason: « Neither the local Ordinary nor the

competent Superior may, except for a grave reason, revoke the faculty habitually to hear

confessions ».43 Much like the possible arbitrary denial as regards the grant of the penitential

faculty, it is important to mention the possibility of administrative recourse in the case that the

faculty be revoked without a grave reason. Likewise, just as the grant is to be given in writing,

so too its revocation is to be given in writing. These norms aim at achieving a balance between

the ecclesiastical authority as moderator of the penitential discipline and the individual priest

who acts in the name of Christ and of the Church in exercising his sacramental ministry of

reconciliation. To this end, we must keep in mind the rights and obligations which arise at this

nexus. While it remains true that all priests have, in principle, the right to exercise their ministry

with respect to the faithful entrusted to their pastoral care, it falls to the responsibility of the

Church to safeguard the dignity of the sacraments and exercise vigilance accordingly.

Under the 1983 Code, cessation of the penitential faculty occurs, apart from its being

revoked, by loss of office, by excardination, or by loss of domicile.44 The modification to the

previous discipline of the 1917 Code reflects the doctrinal significance of the change in

terminology used in canon 967 § 2 to describe the required power as 'faculty' rather than

'jurisdiction'. As we will recall in our discussion on this point, the purpose of the change was to

distinguish the power exercised in the sacrament from that of the power of governance strictly

42 cf. W. WOESTMAN, Sacraments: Initiation, Penance, Anointing of the Sick: Commentary on Canons 840 – 1007, Ottawa: Faculty of Canon Law, St. Paul University, 1992, 262. Woestman has pointed out that it is quite possible for a priest to possess the faculty from more than one title, and thus not lose the faculty everywhere upon loss of one of those titles. He gives the following example: « Thus, if a pastor has the faculty because he is a pastor, he loses it everywhere when he is no longer a pastor. However, if he also has the faculty by a grant from a local ordinary in the diocese where he is incardinated or has a domicile, he still has the faculty for confessions by this title, and consequently anywhere in the world. Prior to his losing his parish, he had the faculty by two titles: both vi officii as pastor and by a concession in his diocese of incardination or domicile; by virtue of both titles he had the faculty ipso iure everywhere ».

43 Canon 974, CIC 1983, « §1. Loci Ordinarius, itemque Superior competens, facultatem ad confessiones excipiendas habitualiter concessam ne revocet nisi gravem ob causam ».

44 Canon 975, CIC 1983, « Praeterquam revocatione, facultas de qua in can. 967, § 2 cessat amissione officii vel excardinatione aut amissione domicilii ».

61

Page 72: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

speaking. This development in the understanding of the power which is exercised in the internal

sacramental forum has consequently brought about some significant changes with respect to the

discipline on the cessation of the faculty. As it was contemplated in the CIC/17 – apart from the

case of revocation – penitential jurisdiction ceased upon loss of office and penal deprivation

incurred by excommunication, suspension of office and interdict.45 From the fact that

sacramental absolution was understood to be an act of the power of governance, it followed that

the actions of jurisdiction performed by a person who had been excommunicated were without

effect.46 As the current legislation understands the power to be juridically autonomous from the

power of governance, the faculty does not cease automatically, as in the former discipline, as a

result of having incurred an excommunication. Under the 1983 Code, censures and other

possible penalties do not touch upon the validity but rather only upon the liceity of exercising the

penitential faculty.47 This concludes our consideration of the particular norms governing the

penitential faculty in the 1983 Code.

From the foregoing analysis we have seen that the penitential faculty is alive and well in

the current law of the Church. The detail with which the institute has been treated lends itself but

to one interpretation: in the framework of the sacramental law, the Legislator has went to great

lengths to maintain both the presence and the importance of the requirement for an additional

power beyond that of orders to hear confessions validly. In outlining some of the major contours

of the law in force, we have shown certain canons on the penitential faculty to constitute a

significant improvement compared to the previous discipline. The traditional understanding of

the institute as a requirement for validity has been retained with full force of law. We can

therefore say that while the material content of the power as it is contemplated in the current law

45 cf. T. RINCÓN, Commentary on Canon 975, in op. cit. Annotated Code, 752. « According to c. 875, § 3, of the CIC/17, jurisdiction ceases – apart from the case of revocation – with the loss of office and penal deprivation incurred by excommunication, suspension of office, and interdict provided that there exists a condemnatory or declaratory judgement ».

46 cf. Canon 2264, CIC 1917, « Actus iurisdictionis tam fori externi quam fori interni positus ab excommunicato est illicitus; et, si lata fuerit sententia condemnatoria vel declaratoria, etiam invalidus, salvo praescripto can. 2261, par. 3; secus est validus, imo etiamlicitus, si a fidelibus petitus sit ad normam mem. can. 2261, par. 2 ».

47 cf. Pontificia Commissio Codici Iuris Canonici Recognoscendo, Schema Documenti Pontificii Quo Disciplina

Canonica De Sacramentis Recognoscitur, Città del Vaticano, Typis Polyglottis Vaticanis, 1975. Interestingly enough, the text of the original Schema (norm 144, §5) had included what would have amounted to an internal contradiction to the 1983 Code whereby the sacramental power appeared as the previous discipline had contemplated it, as a species of the power of governance. Speaking to the possible loss of the faculty due to censure, the text of the original norm provided: « Ipso iure facultate ad confessiones excipiendas privatur sacerdos, sententia aut decreto irrogante vel declarante excommunicatus, suspensus ab officio aut interdictus ».

62

Page 73: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

is distinct from its conception at Trent and in the 1917 Code, it still very much remains an

autonomous power, the absence of which renders the remission of sins before God and the

Church null and void.

5.4 The New Grave Delict

Since its foundation and expansion within the Roman empire, the Church has found it

necessary to establish certain determinate penalties for offenses committed in the celebration of

the sacraments. Some of these offenses gradually came to be recognized by the Supreme

Authority as constituting a particularly grave offense to the faith or morals of the ecclesiastical

community. This led to the development of the institute of reservation whereby certain more

grave crimes were left to the judgment of only the must trained theologians and jurists who

presided in the Church's highest ecclesiastical tribunals. Such reservation served to highlight

both the seriousness of the offense in the eyes of the Church as well as sought to ensure the

proper administration of justice when deciding these difficult cases.

As we conclude our study by looking at a particular offense against the sacrament of

penance which falls under this category of crimes within the Church, it is necessary to establish a

clear understanding of the Church's view as regards these offenses. In his 2007 article which

concerns the praxis of the Congregation for the Doctrine of the Faith when dealing with graviora

delicta, Msgr. Charles J. Scicluna has provided an excellent summary definition of the nature of

these offenses. He writes:

A “delictum gravius” is a canonical delict, that is a grave and deliberate violation of a divine or ecclesiastical law, which is considered by the Supreme Legislator to be such a serious wound to the good of the Church, the bonum Ecclesiae, that it calls for a particularly strong response at the highest levels.48

From the definition given above by Msgr. Scicluna, it is clear that any particular offense the

status of which the Legislator considers to be a grave crime should by that same measure be

sufficient cause for the faithful to endeavor to understand the offenses typified and work to

48 C. SCICLUNA, Clerical Rights and Duties in the Jurisprudence and Praxis of the Congregation of the Doctrine of

the Faith on Graviora Delicta in Folia Canonica 10 (2007) 272.

63

Page 74: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

eliminate their proliferation within the Church. With this in mind, let us now turn to consider the

particular offenses which directly concern our inquiry.

With the promulgation of the Normae de gravioribus delictis of July 15, 2010, the holy

father Benedict XVI updated the legislation contained in Sacramentorum sanctitatis tutela which

gave the Congregation for the Doctrine of the Faith exclusive competence over a number of

particular heinous crimes. Before the promulgation of the latter document given motu proprio by

John Paul II in 2001, other dicasteries of the Roman Curia had also been attributed responsibility

in these matters. This left much to be desired in establishing clear lines of competence over

offenses which shared a common status before the law. The current norms in force have sought

to rectify this confusion as well as to recognize certain other offenses which were yet to be

acknowledged as belonging to the species of graviora delicta. With respect to the latter

development, the interim period between the norms promulgated in 2001 and those issued in

2010 has seen the introduction of three new offenses against the sacrament of penance. While all

three are worthy of serious attention, our present inquiry concerns only the offense prescribed in

the text of canon 1378 § 2, 2° which has been received in article 4 of the Normae gravioribus

delictis. Having said a few words regarding the provenance of the new norms, we are now ready

to say a few final words with respect to the nature of the offense itself.

In the second paragraph of the opening canon of Title III of Book VI on Sanctions in the

Church, we read:

§ 2. The following incur a latae sententiae interdict or, if a cleric, a latae

sententiae suspension: [. . .]

2° a person who, apart from the case mentioned in § 1, though unable to give valid sacramental absolution, attempts to do so, or hears a sacramental confession.49

The first and most important thing that we must keep in mind in considering the offense and its

corresponding penalty is the requirement laid down in canon 966 which we have treated

previously.50 That canon appropriated the theological and canonical Tradition by maintaining the

requirement of the penitential faculty for validity while technically improving its juridical

49 Canon 1378, CIC 1983, « § 2. In poenam latae sententiae interdicti vel, si sit clericus, suspensionis incurrit: [. . .] 2° qui, praeter casum de quo in § 1, cum sacramentalem absolutionem dare valide nequeat, eam impertire attentat, vel sacramentalem confessionem audit ».

50 cf. supra, 54-56.

64

Page 75: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

position within the framework of the new Code. The express mention in canon 1378 of that

requirement affirms in a particular way the continued affirmation on behalf of the Church

concerning its doctrinal importance. It is our opinion that the Legislator's decision to go beyond

the attributing of invalidating effects to the absence of the penitential faculty (which strictly

speaking is itself a kind of sanction) – and maintain it in the canonical penal law – is evidence of

his acknowledging the profound historical and doctrinal importance of the institute within the

structure of the sacrament.51 If we understand the penalty in light of this tradition, the question

which emerges is not whether or not the offense should be included among the graviora delicta,

but rather why it took the Church so long to do so.

In surveying the relevant text of canon 1378, we find that there are in fact two separate

offenses which have been established by the Legislator. The first part establishes a punishment

for the attempt of sacramental absolution without the necessary faculty. The second part

envisions a punishment coming as a result of hearing sacramental confession. With respect to

the first part, Péter Artner has noted the observation of De Paolis that the perpetrator is a priest

who, though usually able to give sacramental absolution, in this situation cannot due to an

obstacle.52 Thus it is not possible for a deacon or lay person to incur the censure here. The

commission of the delict is accomplished when the priest recites the words of absolution. The

second part of the canon is distinct from the former in terms both of the identified subject of the

delict as well as the material content of the offense envisioned. The perpetrator of this offense is

in fact anyone who is not a priest.53 Regarding the scope of its commission Artner has pointed

out, « This does not refer to eavesdropping beside the confessional, but to someone, who is not

able to give valid sacramental absolution, hears the sacramental confession, as normally a

confessor would do ».54 The Normae gravioribus delictis of July 2010 has reserved both

51 cf. supra, 46. It is important to keep in mind that this offense is not new in the modern period of codification. In recalling our discussion of the delict of c. 2366 of the CIC/17, it is worth mentioning the fact that among the fontes listed for this canon is that of the Clementinæ issued in the year 1317. (cf. C. I, de privilegiis et excessibus

privilegiatorum, V, 7). Thus, the fact is that the Church has long acknowledged this offense in the canonical penal law.

52 cf. V. DE PAOLIS, Delictis contra sanctitatem sacramentum paenitentiae in Periodica 79 (1990) 183 cited in op.

cit. ARTNER, 88.53 Interestingly, the two parts to this canon correspond fittingly to the two powers which are required for the valid

celebration of sacrament. The first part corresponds to the necessity of the penitential faculty while the second part corresponds to the necessity of the sacerdotal character. Thus, anyone who attempts to celebrate the sacrament without either of these powers is punished.

54 op. cit. ARTNER, 88.

65

Page 76: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

offenses to the Congregation for the Doctrine of the Faith. As such, the latae sententiae penalties

which the Legislator has established for the commission of the respective delicts, namely

suspension for clerics and interdict for lays, are now subject to the enforcement of the Supreme

Authority.

With the elevation of the offenses mentioned in c. 1378 § 2, 2° of the CIC/83 to the status

of graviora delicta, the universal requirement for the penitential faculty laid down at the Council

of Trent has at last found a level of protection in the penal law which corresponds to the doctrinal

position of the institute within the framework of the sacrament. The promulgation of the

Normae of 2010 constitutes an important milestone in the history of the Church's penal law not

only on account of the increased protection afforded to the sacrament, but also insofar as it

represents the culmination of the traditional doctrine concerning the necessity of the penitential

faculty. In this way, the new norms serve to remind us of the fact that the working of grace

within the sacrament depends not only upon the proper disposition and acts of the penitent, but

also upon the faithful observance of the requirements which the Supreme Authority has

established for its valid celebration. Viewed from this perspective, the penitential faculty emerges

in its proper theological context by which it can then be understood in its essential relationship to

sacrament.

66

Page 77: Jurisdiction in the Sacrament of Penance - A Canonical-Theological Schema

Conclusion

In this study we have attempted to trace the doctrinal development of penitential

jurisdiction with a view to exploring its relationship to the validity of the sacrament of penance.

Beginning in the early Church we saw how the institute gradually took shape under two principle

lines of influence. Both the practical response of the Church to various historical circumstances

as well as the systematic reflection afforded to the sacrament led to the maturation of the institute

in the canonical legal tradition. The continued reflection of the Church upon the role of the

penitential faculty within the framework of the sacrament has led the Supreme Authority to take

initiatives also in the realm of the canonical penal law. The recent decision of the Roman Pontiff

to elevate the offenses mentioned in c. 1378 § 2, 2° of the 1983 Code of Canon Law to the status

of graviora delicta should be taken as clear evidence of both the stability and doctrinal

importance of the penitential faculty. That it enjoys such status before the law cannot be

explained by mere practical utility, but rather must be understood in light of a true theological

justification for the institute. In this regard we have maintained that the necessity of the

penitential faculty arises as a requirement ad validatem precisely as a consequence of the judicial

nature of the sacrament of penance. The establishment of this doctrinal truth brings us full circle

to the question which prompted our inquiry: does the Church in fact have the power to abrogate

the penitential faculty as an absolute requirement for validity? In light of what has been said in

the foregoing study, we must conclude in the final analysis that, owing to the unique relationship

of the penitential faculty to the divine institution of the sacrament, the Church has not the power

to abrogate it as an absolute requirement for validity.

67