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
 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
 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

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 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
 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., 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
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

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

Miaskiewicz, F., Supplied Jurisdiction According to Canon 209, Canon Law Studies no. 122,
Washington, Catholic University of America Press, 1940

Migne, J., 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
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

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

_________ 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

_________ 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
 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
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 its
relationship to the validity of the sacrament of penance. 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 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.

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 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. 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.

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 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
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 about 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
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
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
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
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 which
had already proved too severe for the Roman Christians. After much ground
had been lost and public penance had been almost extinguished, a new system
was to develop, more workable in this turbulent state of society and more
applicable 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
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
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
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
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 they
helped to lead our forefathers from a low and primitive to a higher stage of
moral culture. But they contained certain humanely-designed provisions
permitting the substitution of payment for penitential austerities, which
lent themselves too readily to gross abuses and sowed the seed of an evil
harvest.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
 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
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
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
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., 261
13
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
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
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
 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
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
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
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
 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
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
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
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
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
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
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
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
 judged competent and has obtained their approval, which shall be given
gratuitously; 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
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
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: 21-23
26
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
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 18:18
28
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
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
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 Tridentine
Synod, 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
 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
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
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
 § 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
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
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
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
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
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
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
 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
 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
 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
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
 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
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
 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
 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 the 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
 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
 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
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
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
 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
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
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
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
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
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
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
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
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
 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