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We accept fully Inquirer's' statement of the question at issue between us, and we still maintain, notwithstanding his criticisms of our position, that the words ad suae conscientiae tranquillitatem, in Canon 522, imply an invalidating condition. We do not hope, however, to convert him to our point of view. Unfortunately, we can do little more than repeat and amplify somewhat the arguments which we have already adduced; and these 'Inquirer' has brushed aside so cavalierly that, were he alone concerned, we should deem a further justification of our position a useless task. As, however, many others are interested in the question, the publication of this letter and our reply to it may not be altogether devoid of utility.
Our correspondent quotes the pertinent words of the canon as given in the Code, so that we need not repeat them. The canon clearly imposes three conditions, in order that the privilege which it confers may be utilized. The religious must make her confession: 1°, for the peace of her conscience; 2°, to a confessor approved by the local Ordinary to hear the confessions of women; 3°, in a church or oratory, even a semipublic oratory. Even 'Inquirer' admits this much, at least if we are to judge him from the following sentence: "The consequence which is sought to be drawn from the first member of the sentence would only be legitimate, when each of the three conditions is laid down as invalidating.' Now, the canon states that, when these conditions are fulfilled, the resulting confession is valid and lawful; and from this statement we concluded that, if any one of the conditions were omitted, the confession would be both invalid and unlawful. In justification of this conclusion we can only appeal to the ordinary use of language. If it is stated that a certain act is invalid, when a number of conditions are fulfilled, it is clearly implied that the defect of any of these conditions involves the invalidity of the act. Thus, in Canon 1095, § 1, to take a well-known example, it is declared that a parish priest or local Ordinary can validly assist at marriage if three conditions are fulfilled, and it is universally admitted that the defect of any of the conditions would render the assistance invalid, even though there is no express statement in the Code to that effect. This point seems so evident to us that we should not think of labouring it, were it not for our correspondent's attitude.
It is not clear what precisely is 'Inquirer's' position in regard to the conditions in the canon under consideration. Does he hold that the confession would be invalid if it were made to a confessor not approved to hear the confessions of women, or if it were made in a private house? If so, why does he make a distinction between the different conditions ? What is his criterion? The canon itself puts the three upon the same footing. Perhaps his explanation is to be found in the following sentences: Indeed, it may well be doubted if they imply a condition at all. The words are not couched in a way to express a condition. Tak en as they stand they only imply an end or purpose to be attained. I venture to think that the ordinary plain man would read nothing more into them than a mere amplifying, or, if you will, redundant phrase, meaning nothing more than to express the purpose which ordinarily would be intended. Nine out of ten men would thus construe them.'
The words ad suae conscientiae tranquillitatem express a condition quite as clearly as the words used in connexion with the other conditions imposed in this canon. They imply not merely an end or purpose to be attained, but also a purpose which the religious must have in view when making her confession, in order that that confession may be valid and lawful. To show that the form of the words is quite suited to express a condition, we may refer to an example which we cited for another purpose in our previous reply the phrase ad consulendum conscientiae in the Ne Temere. All admit that this clause expresses a condition, and an invalidating one too; and yet its form corresponds exactly with the form of the clause under consideration. The words, clearly, are couched in a form to express a condition; and our correspondent would not think of denying it, but for the difficulties which the condition involves. Neither can it be admitted that the phrase is redundant. Not the slightest proof is forthcoming for this contention, and the extreme care with which the Code has been drafted and the conciseness with which it has been worded afford the strongest presumption against it. Besides, if the phrase is redundant, if it does nothing more than express the purpose that would be ordinarily present in making confession, how explain its absence in Canons 521 and 523, where it would express this purpose equally well? Surely we are not to suppose that those who drafted the Code omitted and inserted the phrase arbitrarily! Another point militating against this explanation is that it practically reduces the whole legislation about ordinary and extraordinary confessors to a farce. If the phrase is redundant, then nuns and sisters would be quite free, without any special reason whatever, to make their confession to any priest approved for the confessions of women, even in their own oratory.
In confirmation of our position we appealed to Canon 876, § 1, in which it is stated that 'priests. need special jurisdiction to validly and licitly hear the confessions of any religious women whatever and their novices, without prejudice to the prescriptions of Canon 239, § 1, n. 1, 522, and 523.' Canon 522, therefore, makes an exception to the general rule; it lays down certain conditions under which a valid and lawful confession can be made to a confessor who has not this special jurisdiction. Hence, it follows that, if any of the prescribed concitions is unfulfilled, the exception does not obtain, and the general rule must be applied. Consequently, if any of the prescribed conditions is unfulfilled, confession made to a priest without this special jurisdiction is both unlawful and invalid.
In his previous letter 'Inquirer' laid great stress upon the unlikelihood of the Church attaching an invalidating condition to a matter that is subjective; and in our reply we pointed out that it was not unusual to make the validity of acts depend upon subjective considerations, and in support of this statement we adduced a couple of examples. Let us examine his criticisms of these examples. The first was that of confession, which we asserted was invalid by the divine law itself, without certain subjective conditions on the part of the penitent. To this, 'Inquirer' retorts thus: 'One brought up in the school of Scotus would
hardly be satisfied with this statement of doctrine, nor would he consider the example as a case in point. He would prefer to say that the confession was valid, but informal.' Our correspondent can scarcely have been brought up in the school of Scotus. If he were, he would be aware that, according to the Scotists, the acts of the penitent are, not indeed the matter of the sacrament of Penance, but a condition sine qua non for its validity. But waiving this,' he continues, 'it surely is no answer to my statement " that the Church would not be likely to attach a condition of invalidity to a matter necessarily subjective and vague," to say that the divine law does so in one particular case.' This is a misstatement of our position. Our answer was that it was not unusual to have the validity of acts made dependent upon subjective considerations. The examples given were selected merely on account of their appropriateness to the question under discussion. As a matter of fact the number of examples which might be cited is almost indefinite. Nearly all the Sacraments are dependent for their validity upon subjective conditions on the part both of the minister and the subject. How vague and difficult to determine these may be in individual cases, it is scarcely necessary to point out. For example, anyone who reads the Acta Apostolicae Sedis is aware that the most difficult matrimonial cases tried before the Roman Tribunals are those in which the intention of the contracting parties is the question at issue. Again, for the acquisition of one kind of domicile and quasi-domicile intention is necessary; and we personally know quite well how difficult it is to decide, in particular cases, whether this condition is fulfilled or not. Further citation is unnecessary.
In regard to our second example, 'Inquirer' considers that the phrase ad consulendum conscientiae implies an objective not a subjective condition, because canonists attempt to define the cases in which it would be verified. The reason is a most ineffectual one. Canonists will certainly attempt to determine the circumstances in which the condition ad suae conscientiae tranquillitatem would be verified, and yet that will not make it objective. No, the words ad consulendum conscientiae clearly refer to something subjective: they have practically the same meaning as the phrase under discussion. On this point it is scarcely necessary to quote authority; Vermeersch's testimony, however, is so clear that we cannot refrain from giving his words: 'Conscientiae consulit, non is tantum qui ejus praeceptis paret, sed etiam qui ejus suasionibus obtemperat. Quare, praeter strictam obligationem, aliud etiam serium conscientiae motivum sufficere nobis videtur ut facultate praesentis dispositionis frui possis.'1
'Inquirer' himself next proceeds to adduce some examples, and from analogy with them seeks to obtain some support for his position. The first example is taken from Canon 520, in which there is a phrase of similar import to ad suae conscientiae tranquillitatem, and which yet involves no invalidating condition. Now, in the first place, the clause in Canon 520 qualifies merely the asking for the special confessor, and in this connexion there can be no question of validity or invalidity.
1 Comm. in Decr. Ne Temere, n. 72.
Again, in Canon 520 it is not stated that the confession is valid and lawful, if the religious asks for the confessor ad animi sui quietem; whereas there is a statement of this nature in Canon 522. It is absurd to speak of the phrases ad conscientiae suae tranquillitatem or ad animi sui quietem, when taken by themselves apart from their context, as expressing an invalidating condition or, in fact, any condition whatever it is the context determines whether they impose a condition, and if so, what is its nature; and in these two canons the context is quite different.
There is even less parity between his second example and the case under consideration. We always held that unapproved priests could absolve in danger of death, even though approved priests were present. We do not know, indeed, that we ever had occasion to publish this opinion, but we certainly gave expression to it in class. In fact, we could see very little probability in the other opinion. The clause ne in hac ipsa occasione aliquis pereat clearly does not express a condition at all: it is simply the reason for the concession contained in the subsequent portion of the sentence, and it is a recognized axiom of Canon Law that ratio legis non est lex.
We feel quite grateful to our correspondent for his parting advice to us to be on our guard against being deceived by the form and phrasing of words, and to rely more upon the dictates of common sense. We can only promise him that we shall do our best. At the same time, we may be permitted to remind him that, when the words of a law, taken in their ordinary signification, give a plain definite meaning, to depart from this meaning on account of some slight inconveniences, real or fancied, is not common sense, but common nonsense.
SUSPENSION EX INFORMATA CONSCIENTIA '-THE CRIMES FOR WHICH IT CAN BE INFLICTED
Dear Rev. Sir, I have recently had a discussion with priests of my acquaintance as to the crimes on account of which suspension ex informata conscientia can now be imposed. Would you kindly state in the I. E. RECORD in how far, if at all, the Bishop's power in this respect has been increased by the Code.
Under the old legislation the cause on account of which suspension ex informata conscientia could be inflicted was a most fruitful source of controversy. In accordance with its original institution by the Council of Trent 1 it seemed much more likely that Bishops could impose it, not only for occult, but also for public crimes: certainly this was the natural implication of the words ex quacumque causa etiam ob occultum crimen. Whatever may have been the original intention of the Fathers of Trent, it was certain, however, in modern times that this punishment could be utilized only for the suppression of occult crimes. Even as far back as the time of Benedict XIV this seems to have been the discipline: it is
1 Sess. XIV. c. 1, de Ref.
certainly implied in the Constitution Ad Militantis1 of this Pontiff. It was not, however, until more recent times that all doubts were removed: certain decisions and decrees published by the Roman Curia during the last century made this point absolutely certain. But even still there was considerable controversy as to the precise meaning to be attached to the term occult. Whilst many held that it should be given its ordinary signification, not a few writers maintained that it should be so extended as to embrace also crimes which were publicly known, but which it was impossible or inexpedient to prove in a judicial process. This latter was the opinion of such distinguished canonists as Wernz, Pierantonelli, Péries, Cavagnis,' and Santi.
The Code, we think, precludes all further controversy. According to Canon 2191, suspension ex informata conscientia can now be inflicted, not only for an occult crime, but also for a public one in the following circumstances:
1o. If trustworthy witnesses reveal, indeed, the crime to the Ordinary, but cannot be induced to give testimony in a judicial process, and no other judicial proofs are available.
2o. If the accused cleric, by threats or any other means, prevents a judicial process from being begun or continued;
3°. If the opposition of the civil laws or the danger of scandal renders it impossible or inadvisable to hold a judicial process.
Canon 2191 further declares that in no circumstances can this punishment be inflicted for a crime which is notorious.
We see, therefore, that the Code has practically adopted the view of Wernz and his fellow-canonists; but this is not at all a proof that, under the old discipline, the other was not the correct opinion. The Code, however, is much more correct in its terminology; it rightly designates as public, crimes which are known to a considerable number, but which it is impossible or inadvisable to prove in a judicial process.
1' Item a denegatione sacrorum ordinum vel ascensus ad alios majores ; prout etiam adversus suspensionem ab ordinibus jam susceptis, ob crimen occultum, sive ex informata conscientia.'
2 Cf. S. C. Concilium, in causa S. Agathae Gothorum, 1853; Decr. Sacra Haec, S C. EE. et RR. 1880; Instr. S. C. de Prop. Fide, 1884.
3 Cf. I. T. Quarterly, Oct., 1915, p. 447.
▲ Jus Decret., tom. v. lib. ii. p. 111: 'Occultum crimen hoc loco non intelligitur sensu strictissimo, sed illud crimen, quod in foro externo aut per legitimas probationes judiciales omnino probari non potest, licet ex probationibus extrajudicialibus certo de illo constet, aut quamvis legitimis probationibus judicialibus per se demonstrari potest, id tamen ob magnum fidelium scandalum, vel majus clerici delinquentis vel episcopi punientis, vel Ecclesiae detrimentum moraliter fieri nequit.'
& Praxis Fori Eccl., p. 246.