'«)' Pusey Mil #2 1B50 P9E THE CHURCH OF ENGLAND LEAVES HER CHILDREN FREE TO WHOM TO OPEN THEIR GRIEFS. LETTER THE REV. W. U. RICHARDS, MINISTER OF ALL SAINTS, ST. MARl'-LE-EONE. BY THE REY. E. B. PUSEY, D.D. REGIUS PROFESSOR OF HEBREW ; CANON OP CHRIST CHURCH ; LATE FELLOW OF ORIEL COLLEGE. " Ut inveniat gratiam qui vult confiteri peccata, quserat sacerdotem scien- tem ligare et solvere." — De Vera et Falsa Pcen. § 25. ©iforir: JOHN HENET PAEKEE, AND 3?7, STRAND, LONDON; AND SOLD Br F. & J. RIVINGTON, ST. PAUL'S CHDECH YARD, & WATERLOO PLACE, LONDON. 1850. LONDON . GILBERT AND RIVI.NGTON, PRINTERS, ST. JOHS'S SQUARE. CONTENTS. PAGE Introduction 1 Questions raised as to Absolution 8 Jurisdiction, the Gift of a Power within certain limits, in order to prevent interference, illustrated by Canons 9 Does the Church of England leave the power of the Keys unre strained in the hands of her Presbyters ? 16 Meaning of the Church's Direction " Let him come to me or to some other" 17 Statement of Contemporary Rules, with a view to illustrate these words 18 Restrictions placed by the Council of Lateran, that all must confess to their own Priest, and not to another, except by his Permission 19 Statements of Councils of Florence and Trent 21 Explanation of the word " Jurisdiction" as relates to the power of the Keys ib. Jurisdiction may be conferred directly or indirectly by leave given to the Priest to absolve, or to the Penitent to confess to whom he will 28 Delegated jurisdiction 29 Various ways in which such jurisdiction is given in different cases ; and persons are not restricted to any given Priest 30 I. The Pope. Various Theories. 'The truest Theory implies that Jurisdiction resides in all Priests, if it be used lawfully 32 II. All Bishops and Prelates exempt (Authority from the law) 37 III. All Priests (by custom) 40 IV. All laity to whom their Parish Priest gives leave not to confess to himself 48 Choice in this case entirely unrestrained 49 Provision of the English Church 50 Jurisdiction in this case from the law permitting .... 51 V. Classes who had leave given them by Bulls from the Pope (by law) 54 VI. Orders to whom power to receive confessions was given without restraint 55 VII. In probable though uncertain peril of death (by custom) . 59 Extent of this case, and largeness of the permission . . . ib. VIII. Emperor and Empress, kings (by custom) 62 IX. Vagabundi, those who had uo settled residence .... 63 Extent of this class ib. X. Ex ratihabitione, or moral certainty of the consent of the Parish Priest 66 Cases of absolutions voidable but not void 67 XI. Venial sins 70 equally require jurisdiction 75 XII. Ignorance of the Priests 76 IV CONTENTS. PAGE Summary by Reginald 79 Results 81 Priest without cure of souls 84 Distinction between jurisdiction and approbation of Bishop . . 87 Special licence of Bishop not required before the Council of Trent for those either with or without cure of souls 89 Application to the English Church 103 Jurisdiction in English Church altered when confession ceased to be compulsory 104 Change as to the " Simplex Sacerdos" after the destruction of Monasteries by Henry VIII 107 Permissions may not be limited arbitrarily 108 No limitations intended by Cranmer 109 The words " or some other" often re-enacted when they could not be meant to be restrained Ill Evidence from Canons of 1604, and Bishops' Visitation Articles . 114 Statement of eminent Bishops implying that freedom .... 122 Summary 127 Implied objections as to the practice 131 Objections to the practice from the supposed practice of the Primitive Church 138 They are drawn, not from private confession, but from the public discipline ib. Choice of Confessor free in the Ancient Church 143 Even in later times 146 Partial change through Pope Urban II. (a.d. 1087-99) . . .150 Freedom still remaining at that date ... 155 Case of ignorance of the Priest . . .^ 156 Some held this to include moral unfitness 158 Provincial and local regulations, relate to public discipline or to abuse 161 No trace of restriction among ourselves before the Council of Lateran, A.D. 1215 J65 Difference between P. Lombard before the Lateran Council and the Schoolmen after it 166 Alexander Alensis and Aquinas treat the restriction as one of positive law ; Aquinas as one then introduced 167 Other writers fjo Questions which are only in words 173 Summary 174 Meaning of the words " cannot absolve," in the Lateran Council . 176 Navarrus — return to ancient practice easy and admissible . . .177 Abstract principles adduced against the freedom allowed by the English Church do not apply . . 179 The Visitation for the Sick leaves the choice open : (1) As preparatory to Holy Communion ; (2) As not placing restriction on the previous practice . . ];>-2 Negligence no argument against the Church's rule . . . 194 Revival, the teaching of God through the Church . . ig^ Practice, why silent I95 Prayer Book, the teaching of the Church . . . jgg A LETTER, 8fc. My Dearest Friend, We have, these many years, felt alike on all things which concern the Church, the progress of Christ's kingdom, the cure of souls; so that it is natural to write to you on any new trouble which comes upon us. But in this case we have another common bond, the souls and consciences of those to whom we have ministered, and who now are liable to be disquieted, and are (as you tell me) in part disquieted by the theory of "jurisdiction," recently put out by Mr. Allies. This, as he has too nar rowly stated it, would, in many cases, affect the "benefits of Absolution," which, by virtue of the exhortation of the Church of England, they have sought and received, and in it have found grace and peace. One, at least, has on that ground left the Church of England. B I have also been called upon in a written letter to answer the same question, with the intimation that the writers "purposed to make public both their question and my answer." The substance of that letter too has been made known, and souls, in whom we have both a deep interest, have been dis quieted. It became the more necessary to answer it as fully as I could. Brief questions on what re lates to doctrine or to the soul, often require long- answers. An objection may be put in few words. In order to meet it satisfactorily, it is often neces sary to enter into the whole subject. I have, in consequence, at such fragments of time as other duties and the present troubles of the Church have permitted, read through, I believe, what has been written on the subject by those of most name and weight. And now, having collected the materials, I prefer, for reasons which I need not enter into, writing the result to you. To you, as well as to myself, many whose con sciences were oppressed have come, at the invitation of our common Mother, who, consulting for the infirmity of her children, did not place them, in this respect, simply under their Parish Priest, but directed him to invite them to "come to him or to some other," to whom they could, with full confidence, unburden their souls. They came to us in simple trust in the loving invitation of the Church ; and mb, in the same entire confidence that the Church, by bidding them come, did not empower only, but laid a necessity upon us, to receive them, did so receive and minister to them, as the Church directed. You too can bear witness with me, that if there is one part of our Ministry which God has blessed; if there be one part of our office, as to the fruits of which we look with hopefulness and joy to the day of judgment, it is to the visible cleansing of souls, the deepened penitence, " the repentance unto sal vation not to be repented of," the hope in Christ, the freshness of grace, the joy of forgiven souls, the evident growth in holiness, the Angel-joy " over each sinner that repenteth," which this ministry has dis closed to us. We have often in the subsequent growth in grace and " transformation" of the soul, by the " renewing of the mind," not been able to recall to ourselves the former self which we knew of, when first a person sought to hear, through our ministry, his Saviour's Voice, " Thy sins be forgiven thee : go in peace." " In these a Pastor dare delight A lamb-like, Christ-like throng ;" for His likeness has anew by Himself been traced upon them. For these souls we should especially be anxious, that no breath of unreal doubt or misgiving should cloud the brightness of their hopes ; no untrue questioning pierce their souls. We have seen the reality of the work of the Divine Grace in their souls. We have seen it too uniformly, too vividly, B 2 too variedly, too abounding in manifold fruits, as " God divideth to every man severally as he will," to have a shadow of doubt about it. To us all ques tioning seems like calling in question the work of God the Holy Ghost, "which our own eyes have seen." When we see the dry and parched ground clad with verdure which gladdens the eye, we doubt not that God hath " sent a gracious rain upon His inheritance, and refreshed it when it was weary." When we see the fever abate, the wasted form recover strength, the sunken eye look full and thankful to Heaven, we doubt not of His Pland who " bringeth down to the ground and bringeth up." When we bear how one bowed down lifted up herself, how the blind saw, the lepers were cleansed, the deaf heard, we know from Whom virtue went forth to heal them. When we see spiritual cures, the spiritual sight restored, the taste in heavenly things given back, the senses deadened to the things of sense, the conscience once dulled, now tender; the proud heart, like a little child; the hardened heart flow in tears of penitence ; the soul more alive to its remaining infirmities, than it once was to whole heaps of deep deadly sin ; or that great triumph of Divine Power, where one becomes eminent for the grace most opposed to his deepest besetting fault, we must adore the miracles of Divine Grace. Satan does not cast out Satan. It was His Name, through faith in His Name, which gave them their spiritual life and power and victory in Him, But to many of these, the very humility which God has given them may hide His own work in them. With quickened sight they see defects to which they once were blind. Longing to be wholly pure and wholly God's, they feel keenly every thing which seems in any degree to separate them from Him. They feel the remaining sinfulness of their corrupt nature, and the penalty even of forgiven sin, and the evil, though unharboured, thoughts which issue from it, more than they once did actual griev ous sin. They cannot have the cumulative evidence which we have of the "benefit of Absolution." They have felt in their own case "the power of God unto salvation." Yet it would seem presump tuous to rest on their own experience, as to the gift of God. But we have seen that ministry effectual, not in the one or the other case, but wherever it has been sought " with a faithful and true heart." These souls then we must guard with care. For the slightest misgiving wdll pierce tender souls, in proportion to their tenderness. The inquiry involves necessarily a good deal of reference to a system, which is distinct from our own, as being compulsory. For the objections raised by Mr. Allies are drawn entirely from writers who lived after the Council of Lateran had enjoined "Con fession to every one's own Priest once in the year," and they must be removed out of the same sources. This I hope to do, by God's help, upon their own principles ; but in doing so, I must be understood to 6 employ these vsriters as witnesses, not as wishing to bring in any theory, or practice, difTerent from that acknowledged by the English Church. We have both felt that the restoration of Confession has been the work of God on the souls of men. Confession has been with us purely voluntary. Both of us have received those who came to us. We dared not, when our Lord's wounded sheep came to us, as invited by His Church, incur that woe : " The diseased have ye not strengthened, neither have ye healed that which was sick, neither have ye bound up that which was broken, neither have ye brought again that which was driven away, neither have ye sought that which was lost." (Ezek. xxxiv. 4.) But we have not enjoined' " auricular confession ;" nor do we wish to bring back any compulsory system. We wish, while there is time, to awaken those " dead in trespasses and sins ;" and with the medicine which He has given, to " heal the broken in heart, and bind up their wounds." Further results belong not to us, but to the ' Mr. Dodsworth (Letter, p. 17) speaks only of what he sup poses might have been my practice, though I do not think it justified by the discipline of the Church of England, "by encou raging every where, if not enjoining, auricular confession." I could not enjoin what the English Church leaves free. I recom mended it in my University Sermons (i. p. 58, and preface,) to those who felt that their case needed it. Else, I have not given the impulse to it. It came from within. To individuals, when consulted by them as to its use, I have advised what their case, and the peace and well- being of their soul, seemed to require, or to pray God to guide them. Church and to God, in whose hands she and we are. I state this, because this letter may fall into the hands of those to whom both the language and the authorities will seem equally strange. Before entering upon the subject itself, it is best, for the sake of those not familiar with the distinction which ]Mr. Allies has applied to the English Church, to restate the point at issue. We both, then, believe in common, that the power to absolve from sin in Christ's Name, is given to all priests through their ordination. We believe that this power is committed to them by Christ Him self, through the imposition of the Bishop's hands with the words, " Receive the Holy Ghost for the office and work of a priest in the Church of God, now committed unto thee by the imposition of our hands. ' Whose sins thou dost forgive, they are forgiven ; and whose sins thou dost retain, they are retained.' " We both of us believe that the power of excommunicating or absolving from excommuni cation is reserved for the highest order only. We both believe that on full confession of all the sins which burthen the conscience, with true repentance, the priest may, by Christ's "authority committed unto him, absolve" the penitent "from all his sins, in the Name of the Father, and of the Son, and of the Holy Ghost;" and that what he "looses on earth" is " loosed in heaven." The question raised relates to a further point. It is whether, without any further commission, the 8 priest may in any case (besides the point of .death) exercise the power thus lodged in him, and, by his Office, inherent in him ; or whether the power lies, as it Avere, dormant in him, and may not be put forth without some further direct commission from the Bishop ; and whether, if exercised without such fur ther authorization, it is valid. It is true, that the exercise of the power given to the priests by ordination may be suspended, or even taken away. The first Schoolman who wrote on this subject after the Council of Lateran, Alex. Alensis, illustrates the case by that of a hand holding a material key^ A priest degraded loses the power altogether, like a hand amputated ; a heretical priest has it suspended, until he be restored to the Church, like a paralytic hand, until its power be restored by fresh influence from the body ; a priest suspended, is like a hand tied ; a monk who is also ordained, being engaged in contemplation and solitary life, is like a hand otherwise employed, and cannot use the keys, except it be allowed through obedience to the superior. The image is one strikingly adapted to illustrate the nature of Jurisdiction. The priest holds the keys, and has authority to use them ; but that use may be limited or restrained. Jurisdiction has two aspects, positive and negative. It may be looked upon as the concession of a power, or as its restriction within certain limits. By Consecration, God confers upon a ' Summa, p. ii. qu. 20. Art. 2. 9 Bishop, authority to ordain, confirm, and exercise all other Episcopal acts. By Ordination, He confers on the priest power to consecrate the Ploly Eucharist, to absolve and bless in His Name. But God is a God of order : and so, for the order and well-being of the whole Church, each office is exercised, with certain limitations, within certain bounds. Patri archs, Metropolitans, Archbishops, Bishops, Pres byters — all alike have their limits, in that their authority is restricted so that it should not interfere with others who have the same office. This principle, that none should interfere with another's office, is laid down in the earliest Canons of the Church. It was one and the same principle in all, that none should "remove^ the ancient land mark which thy fathers have set," nor " thrust* his sickle into another's harvest." Thus the 34th Apostolic Canon forbids Bishops to " ordain beyond their own boundaries, for cities not subject to them ; if any be convicted to have done this against the will of those who rule those cities or countries, let him and those whom he has ordained be deposed." The Council of Antioch enlarged this (Can. 18) : "If a Bishop, uncalled, go in a disorderly way to ordain or to settle ecclesiastical matters which do not belong to him, let what he doth be null, and himself, subject to the punishment which befits his disorderly ' Prov. xxii. 28, quoted in the Decretals, C. ix. q. 2. c. I. * Alex. Alans. 1. c. from Greg. M. Ep. ad S. Aug. 10 and lawless undertaking, be deposed from this very time by the Ploly Synod." And again in Can. 22 : " A Bishop may not invade another's city not subject to him, nor a country which appertaineth not to him, to ordain any ; nor may he appoint presbyters or deacons for places subject to another Bishop, except with the good will of the Bishop of the country. But if he venture this, let his ordination be null, and himself be rebuked by the Synod." The Council of Nice lays down the same principle as to Patriarchates : " Let the ancient customs prevail, those in Egypt, Libya, and Pentapolis, so that the Bishop of Alexandria should have authority over all, since this is customary also, as to the Bishop of Rome. In like way also, as to Antioch, and in the other provinces, let the churches have their dignities unharmed." The 1st Council of Constantinople (Can. 2) re news this : " Let the Bishops over a diocese not enter upon the Churches beyond its boundaries, nor confuse the Churches ; but according to the Canons, let the Bishop of Alexandria administer the affairs in Egypt only ; and the Bishops of the East govern the East only (the dignities assigned to the Church of Antioch in the Nicene Canons being preserved) ; let the Bishops, too, of the diocese of Asia order the affiiirs in Asia only ; those of Pontus, Pontus only ; those of Thrace, Thrace only. But let not Bishops over a diocese, uncalled, enter another for ordination or any other ecclesiastical office. But the above 11 Canon about the dioceses being observed, it is plain that the Synod of the province should order the things in each province, according to what was or dained at Nicsea. But the Churches of God in the barbarian nations must be ordered according to the prevailing practice of the fathers." In like way the Council of Ephesus, in vindicating the independence of the Bishops of Cyprus from the see of Antioch, lays down the general principle. " The same shall be cai-efully observed in the other dioceses also, and all the provinces, so that no one of the Bishops most beloved of God shall take pos session of another province which has not of old and from the beginning been under those before him. But if any have taken possession of one, and by force brought it under himself, he shall give it back, that the Canons of the fathers be not transgressed, nor under the pretext of the priesthood, the swelling pride of worldly power creep in, and that we lose not, little by little, and imperceptibly, that freedom which our Lord Jesus Christ, the Deliverer of all men, hath bestowed upon us through His own Blood. It seemed good then to the holy and (Ecumenical Synod, that to each province the rights which belong to it of old from the first, according to the practice which prevailed of old, be preserved pure and in violate." Of these, the Canons of Antioch and Constantino ple are quoted in the Decretals ^ together with de- ' C. ix. q. 2, 12 crees as to judgments of Bishops, as involving one and the same principle, that no one is to invade the province of another. The decrees as to Bishops here ascribed to Pope Calixtus, are but modifications of the Apostolic Canon and those of Antioch by the Pseudo-Isidore ; another ascribed to Pope Urban II. is perhaps from an uncertain collection of Canons. But all are put under one common head, which shows what is there meant. " That no Bishop or any superior should ordain the clerks of another without his leave." It is a principle of not meddling with the office committed to another. It will make my meaning clearer to add here those other decrees, attributed to Calixtus, under the same head. " Let no one usurp the bounds of another, nor pre sume to judge, or ordain, or excommunicate one in the diocese of another [alterius parochianum] ; for such judgment, or ordination, or excommunication, or condemnation, shall neither hold, nor have any force ; because no one shall be bound or condemned by the sentence of another judge than his own. Whence the Lord also speaketh, saying, ' Thou shall not transgress the ancient landmarks Mhich thy fathers have placed.' " Let no primate, no metropolitan, none of the other Bishops go to a city of another, or take possession of a district which doth not appertain unto him and belongs to another Bishop, to order any thing ; unless called by him to whose right it is known to belong • 13 nor let him dispose, order, or judge any thing there, if he willeth to retain the dignity of his order. But if he shall presume to do otherwise, he shall be con demned, and not he only, but those who co-operate with him, because as ordination, so also judging and the disposition of other things is forbidden them. For he who cannot ordain, how can he judge ? No wise, doubtless, should he or can he judge." To these are appended three Palese, whose au thority, as being Palese, is perhaps less. These I will insert when I come to the subject itself. All three in common forbid interference with others. The one which relates to confession, of the 11th century, refers to a case of interference of a most mischievous sort, when a penitent who had placed himself under the care of one priest, withdraws himself from him. The other two forbid presbyters or deacons receiving to mass the parishioner of another. Thus from the highest to the lowest, from the Patriarch to the Deacon, for ordaining, judging, ex communicating, absolving, admitting to hear mass, there is one principle throughout, that, in the army of the Church, " each should march on his ways, and no one break his ranks : neither shall one thrust another ^." To this belongs the case of the late Bishop Cole ridge, which Mr. Allies brings forward to illustrate the nature of jurisdiction. He says : " A Bishop '' who had resigned a colonial see was lately resident ° Joel ii. 7, 8. ' Royal Supr. p. 54, 55. 14 in a country parish, yet, though superior in power of order to the parish priest, he could perform no one act in that Parish involving jurisdiction save by the permission of the parish priest." This is strictly on the principle of non-interference. A Bishop who, like St. Gregory of Nazianzum, re signs his cure, has none of his own. But then. Dioceses or Parishes being apportioned, he cannot, uninvited, exercise any part either of his Episcopal or his priestly office in other Dioceses or Parishes, without interfering with the office in the Lord's Vineyard assigned to others. This does not belong to acts involving jurisdiction only, but to all acts which have been assigned to another, because they have been so assigned. He could not, without ir regularity, baptize (except in peril of death), nor confirm, nor ordain, nor preach, in the Diocese or Parish of another, except by his permission, because another has been a23pointed to perform these offices. All these would come under the rule of not " thrust ing his sickle into another's harvest." On the other hand, if an act has not been specially assigned to the Parish Priest, but he is required by the law of the Church to admit others to the performance of that act, then he has not exclusive jurisdiction in this act, and that other has all the jurisdiction necessary for that act from the law of the Church. The Bishop could not regularly, out of his diocese, perform offices which interfered with the office of another: he could absolve, on confession, before Holy Com- 15 munion, because, according to the law of the English Church, it is no interference. This I hope to explain hereafter. The same principle is laid down by Gratian, in another part of the decretals, in which the reconcili ation of the excommunicate is forbidden to Presbyters. It is forbidden as part of the Episcopal office. " That one excommunicated by the Bishop may not be reconciled by another, without consulting him, unless perchance by his Metropolitan, or by the supreme Pontiff, is proved by reason and authority. For presbyters receive power of excommunicating and reconciling from Bishops, not Bishops from presbyters ; and therefore priests can reconcile those excommunicated by priests ; but those excommuni cated by Bishops, priests cannot reconcile. For the reconciliation of penitents is part of the episcopal, not the priestly office." The details which Gratian gives here, will come to be considered hereafter. This will suffice to explain what I conceive to be the principle involved. The Church has power to regulate and limit the functions of her ministers, or again to remove those limita tions. Thus, strictly as the rule that one Bishop should not enter upon the diocese of another was enforced in the African Church, the case was ex cepted if a Bishop should not be diligent in convert ing the heathen within it. The Church, in this case, interfered, that the power given for the saving of souls, should not be retained to their loss. 16 But if the Church makes any regulations, then she may either make void, ipso facto, what is done con trary to them ; or she may annul it afterwards, so that it should remain valid, until, or unless she annuls it. Again, she may, if she see good, change those regulations, so as to make thera more or less stringent. It is acknowledged, on all hands, that considerable changes have been made in the peniten tial discipline. While public penitence was enforced, one who had publicly offended could not be admitted to communion, without undergoing that course of penitence. What was condemned as irregular then, is the received practice in the Roman Communion now. The Church may adapt herself to the necessi ties of the times, within certain limits, and bend to what her children will endure, lest by a severity healthful in itself, yet unsuited to their weakness, she risk their salvation, leaving them to plunge into a heathen life or into schism. The letter sent to me puts apparently but one question; "Has the Church of England left the power of the keys, unrestrained, in the hands of her presbyters, so that they may use it freely for all who come to unburthen their griefs to them?" A second perhaps lies involved in it, any how in ]\Ir. Allies' pamphlet, "Has the Church of England the rio-ht to leave the power of absolving, freely in the hands of her presbyters, without restricting them ? " To both these questions I can, without hesitation answer " Yes." And so I might dispense with a third 17 statement, that even if such exercise of her office had been irregular, it would not follow that the acts would be invalid, unless subsequently invali dated by authority. They would stand, unless re scinded. To take them in order. After mentioning the Constitution of Archbishop Reynolds « (Abp. a.d. 1313—1327), he says, " We have not overlooked the sentence in the ex hortation appointed in the Common Prayer Book before Communion. ' Let him come to me, or to some other discreet and learned minister of God's word, and open his grief, &c. &c.' But, after the best consideration in our power, we have come to the conclusion that so far from weakening the diffi culties which we have suggested, it strengthens their force. The words ' some other' &c., would, of course, be intended to be understood only in the sense of the common practice and discipline of that time, 1548, in this matter : and we believe there is not any doubt whatever what that practice and discipline were ; so that the ' some other' &c. would of necessity be a priest, who had been appointed by the Bishop, for that diocese or district." In their plain and natural sense, the words " Let him come unto me, or unto some other discreet and learned minister of God's word," do (as all must have felt, and as we have all shown by our actions, whether in confessing or in receiving con- ' See below, p. 20. C 18 fessions,) leave it quite open to any of us to choose whom we think best fitted for our own case : they almost oblige us to receive any who come to us. This we have acted upon, and the interpretation which thousands have, unbiassed, put upon the words, is a strong testimony that such is their real meaning. It is assumed, however, in Mr. Allies' letters, that their meaning must be, not what they would obvi ously mean, in the present day, but whatever was meant by them, when they were first used. And this he fixes at 1548, the date of the first Com munion Office under Edward VI. This date is essential to his argument. For at any later time it is quite plain that there was no priest appointed for "each diocese and district," and so that the Church could not mean to restrict the liberty of choice, left to the laity, in the way that he Avould limit those larger words. And therefore he takes exclusively this date, in order to obtain a contemporaneous exposition corre sponding with the view which he has taken of the necessity of jurisdiction to the right exercise of the power of the keys. But, 1st, he has mistaken the practice antecedent to the Reformation to which he appeals, as explain ing the words in the Prayer Book of 1548. 2. Even at this date, the Mords would not restrain the freedom of choice now allowed. 3. There is no ground for fixing this date exclu sively, but the contrary. 19 I. In order to ascertain this contemporary prac tice, it is necessary to begin with the period immedi ately antecedent to the Reformation. In so doing, I must waive, for the time, the consideration of that period, upon which the Church of England rests her practice, the centuries antecedent to the Council of Lateran, and will take the practice established by that Council. Reserving, then, the consideration of the primitive practice, and its bearings upon the present question, I would now take the case subse quent to the Council of Lateran, a.d. 1215, simply as illustrative of the point referred to, i. e. who (ac cording to that rule) the " some other discreet and learned Priest" would be. The Council of Lateran established in this respect two points. (1.) " Let all the faithful of both sexes, as soon as they come to years of discretion, faith fully confess all their sins in private, at least once a year, to their own priest." (2.) " If any one for a just reason desire to confess his sins to a priest not his own, let him first ask and obtain leave from his own priest, inasmuch as otherwise the other cannot absolve or bind him." I waive now, as I said, the question as to the previous state of things, and take only that, which existed between 1215 and 1548, subsequent to the Council of Lateran, and anterior to the Council of Trent. The rule then was established, that all must con fess to their own priest once in the year, and none must leave that priest for another without his leave ; c2 20 otherwise the Church pronounced that the absolu tion which he obtained would not be valid. This states the duty of parishioners, and this is the point which was enacted in this country in the Constitu tion of Archbishop Reynolds, quoted by Mr. Allies. (Abp. A.D. 1313 — 1327.) "Let° no priest admit to penitence the parishioner of another, except with the permission of his own presbyter or Bishop." This so far describes, then, the duty of parish ioners. They might not go to another priest, with out the leave of their own, or (if there were any occasion for the higher authority to supersede the lower) of the Bishop. But what if they had the leave of their Parish Priest ? This is the question at issue. For (as I shall show) that leave might be given either individually, or generally, to a whole parish, or by law or by custom. The 2nd Constitution of Archbishop Reynolds'", which Mr. Allies quotes, appointing confessors, relates solely to the Clergy, and the " two fitting Presbyters of competent knowledge and approved character" were to hear their confessions only. The Constitution is directed against the practice of the secular Clergy, either not confessing at all, or going to the monks at their own option. It is an application, as to these, of the Council of Lateran, that none should admit to penitence any one, sub ject to anotlier. " In Lyndwode de poen. et rem. c. Sacerdos, i. 179. v.ed. 1501. '° Ibid. c. Cum saspe, f. 181. v. 21 In none of these is there any provision as to the case of those who in any way had leave, not to confess to their own priest. This Mr. Allies sup plies from the "instructions of Pope Eugenius IV. to the Armenians," which, Le Plat says \ " is not to be confounded with the Council of Florence," a.d. 1439. In these it is laid down, " The minister of this Sacrament is a priest, having authority to absolve, either ordinary, or by the commission of his supe rior ;" and subsequently to these times, the Council of Trent laid down, "that the absolution must be held to be of no force, which a priest pronounces on one, over whom he has not ordinary or delegated jurisdiction." But the very question is, what is " delegated jurisdiction ? " And by whom is it dele gated ? by the Priest, or by the Bishop, or by the Church ? or by each in different cases ? directly only, or indirectly ? To this question I would now proceed. But it may save much confusion, first of all to consider the meaning of the word "Jurisdiction" which occurs very often in Mr. Allies' letter, but which is not so plain to ordinary readers as he has imagined. There are, in the later Roman Church, three chief different views of Jurisdiction as relates to the power of the keys. It has been held, (1.) that the power of the keys and Jurisdiction are both given, by Divine rights to Priests in their Ordination, liable ' Monura. ad Hist. Concil. Trid. &c. t. iv. p. 304, not. ' Hence De Palude remarks (in 4. d. 22. q. 3. concl. 2.) that 22 to subsequent limitation by the Church, but free and complete until or unless so limited ; or (2.) that the power of the keys is given by Christ Him self in Ordination, but Jurisdiction, by a subsequent act by the Church'' ; or (3.) that both are given by Ordination, yet so that they should be exercised upon those whom the Church should assign. And to this last I may add, that either the positive law of the Church [jus], or (when not contradicted by that law) received custom [consuetude], are con sidered sufficient to constitute Jurisdiction. Of these the first and the third virtually coincide in principle. They differ as to fact. In the first, it is asserted that, for a long time, nearly thirteen cen turies, no such limitation was imposed. In the third it is asserted, on the authority chiefly of the false Decretals, that at no time did the Church leave per sons absolutely free. But they agree in this, that when the Church has limited it. Absolution can only be validly given, in conformity with those limi tations. The meaning of the word jurisdiction, then, may " no confessor, be he who he may, when he absolves, ought to say, ' by the authority of the Bishop or Curate,' " 5;c. (Ap. Nav. in c. placuit, n. 46.) " " In that way in which authority is in man, it is equally in every priest ; but the superior gives him the matter, but no power, except when he first ordains him." De Palude ap. Nav. I.e. " For as a prince," De Palude adds, "gives any artificer licence to use his art, which is not to give him the power of his art, but to allow him the matter ; so orders are given and confessions heard in the parishes of others by their licence." 23 be resolved into these two : (L) an authority vested in each Priest, which he may exercise whenever any one (according to the law of the Church) sub mits himself to it. (2.) " An authority over certain individuals given to a certain priest." 1. In the first of these senses, De Palude and Navarrus, and ultimately Vazquez (correcting all his predecessors, on both sides), illustrate the juris diction given to Priests in Ordination, by the Office of the Chartulary Judges. "These" (I will use the words of Vazquez*) "had power from the Sovereign to judge in the causes of those who were willing to submit them selves to them. These then had from the King power to give judgment [jus dicere], and so jurisdic tion; for jurisdiction is nothing else than the office or faculty of giving judgment, or pronouncing sen tence, as all skilled in Latin, and in civil and canon law, teach. So, then, this only was lacking to them, that the Emperor did not designate to them any one in particular, i. e. no prisoners to be judged, no matter on whom to exercise their power. But the Emperor only assigned to them in common whoso ever wished to subject themselves to their judgment. When, then, any subjected themselves, they did not give to the Chartulary Judges power of giving judg ment. For this they had from the Emperor. But they furnished a definite matter for judging, which the Emperor did not define, but left to be defined ' In p. 3, qu. 93. Art. I. Dist. 2. n. 23—25. 24 by the will of those who wished to be judged ; which matter failing, their power could not be exercised, because, besides that power, there was required a definite matter, in order that the exercise of that power might ensue. " Much of this sort is the case with Priests. For in their Ordination they receive orders, not only as regards the power of consecrating, but as regards the power of giving judgment as to sins, when it is said to each, ' Receive the Holy Ghost ; whose sins ye remit they are remitted, &c.' By which words he is made a Chartulary judge, and receives authority to give judgment as to sins ; and this power, which is required on the part of the judge, and which is truly called jurisdiction, the Priest cannot receive from the Church ; for then he would have from the Church the power of judging, which is false." Vazquez goes on to say, that priests had not from Christ, in ordination, jurisdiction by Divine right over all who willed to submit themselves to them, as to Chartulary judges. For if they had, then the Church could not limit this right ; as no Prince in ferior to the Emperor could take away or narrow the jurisdiction given by the Emperor. Jurisdiction, then, he holds, to be given to Priests in ordination ; so that it is not given afterwards, but only persons are assigned towards whom it may be exercised. But these (as I shall show hereafter) may be assigned either definitely or vaguely, by law or by custom. 25 And with this even Suarez agrees, in fact, so as to regard it as a question of words, whether it be said that priests have jurisdiction given to them in Ordination itself by Christ, and that the Church directs who should be subject to it, or that the Church confers jurisdiction. He states the opinion thus: " As ^ those Chartulary judges had power from the Emperors, so now Priests have it from Christ ; and as they, from the grant of the Emperors alone, had not any subject to that power, so neither have Priests from the force of ordination alone." De Palude and Navarrus carried that analogy of the Chartulary judges further, and said that Priests have this power towards any one who places himself under them. Suarez says, it differs in this, that, in the Church, persons have not the option, which they had by that secular law in the things of secular law, to submit to whom they will, but that the Church decides to whom they are to submit themselves. Yet in that Navarrus says, "those who lawfully [legitime] submit themselves, he must mean the same thing ; since ' lawfully ' is according to the law of the Church, in whatever way this be ascertained, whether by positive law or custom I" ^ Disp. 16. de pot. rem. pecc. s. 3. n. 25. * " Every priest, when he receives order, receives, in habit, jurisdiction to absolve and bind all those who lawfully submit themselves ; and all priests are as Chartulary Judges, i. e. judges to whom is given the power of judging the causes of those will ing to submit themselves to them, of whom Bartholus and others treat in 1. I. fF. de jud." — Nav. in c. Placuit. n. 19. "From the 26 2. The second sense of jurisdiction occurs in the following passage of Dom. Soto: "A person's' own Priest [proprius sacerdos] is one who can by his jurisdiction compel one under him [subditum ejus, ' his subject,' as Mr. Allies says] to the Sacrament," i. e. Confession. In this sense. Jurisdiction, of course, must be given by a subsequent act. It is not a right only to receive penitents who willingly submit them selves ; but a power to compel persons to submit to the discipline of the Church by making confession as the Church appoints, and, in the actual discipHne established by the Council of Lateran, yearly. This power, can of course, be fully vested in one person only- Gregory de Valentia reduces this authority " over " the person to be simply " lawful authority " in this matter. " The ^ power of jurisdiction we call some above, it appears that every Priest has jurisdiction in the Peni tential Court ; nay, that is conferred upon him, annexed to orders, although he hath not the exercise of it, save over those who are lawfully placed under him. Yea, he seems to have it together with the exercise towards a certain class of men, so far at least, that without leave from any one he can hear, and loose, and bind them. As those in extremities, or who, since their last confession, have committed venial sins only ; Bishops, or their superiors, and other prelates immediately subject to the Pope. And so they are a sort of chartulary judges, whose jurisdiction can be enlarged (according to 1. I, and the notes there by Bar tholus and all, which holds in spirituals with leave of the superior). So then this too can be extended, although he exercises no other cure of souls." Ib. n. 52. ' In iv. Dist. 18. q. 4. Art. 2. ' In 3 p. Disp. 9. qu. 10. punct. 2. 27 sort of authority towards the other, as one placed under him, at least as relates to that act of knowingf us conscience, and loosing and binding." And in a ase where the law did not interfere to prohibit it, he admits that the voluntary submission of the in dividual gives sufficient "jurisdiction," as in the case of slighter sins. " Of those [venial sins] which the penitent confesseth voluntarily, he can with a certain jurisdiction and authority inquire into those things which he thinks to appertain to the right execution of his office, and to helping the penitent. And this right [jus] the Confessor acquires, provided that the penitent himself (as relates to such confession) hath of his own accord subjected himself to the Confessor. For by this very act he giveth power to the Con fessor of executing his office after some sort with a certain authority." This distinction is of great importance as regards the Church of England, that we may not apply to her, rules which belong to a different system. The Parish Priest in England is not the " proprius sacer dos" of the Council of Lateran. For the " proprius sacerdos" was one who might require his parish ioners to confess once in the year, previous to Com munion, from which if he abstained, he was, if he died, deprived of Christian burial. Since, then, the Church of England has left it free to us to confess or no, no one is, in her, sub jected to another by this sort of jurisdiction. The other sort of jurisdiction is given to all priests. The 28 power to absolve those whom they lawfully may, is given them in ordination. The real question then is, not whether all priests have the jurisdiction {i.e. the authority jus dicendi) necessary, but whether, or in what way, persons may lawfully (legitime) place themselves under that authority. It will be convenient also to notice here, that as to jurisdiction, it was regarded as one and the same thing, whether leave was given to a Priest to hear the confession of those not ordinarily placed under him, or to the penitent to confess to any such as are not ordinarily placed over him. He who could give leave in the one way, whether the Pope, or the Bishop, or the Parish Priest, could, to the same extent, give it in the other. To give a person leave to choose to whom he will confess, was held, ipso facto, to give authority to the person whom he chose, to receive that confession. Thus Suarez says ^ : — " Jurisdiction may be granted, or delegated, in two ways; (1.) directly, by giving jurisdiction to the Priest, as when a Parish Priest takes any qualified Priest as a coadjutor for a time, or a Bishop or the Priest commits this office to any one: (2.) on the part of the penitent, as when a faculty of choosing a Confessor is granted to any one." And on this 2nd mode, " Man ' can give this faculty. For there is '' Disp. 26, de min. Conf. Del. init. ' Disp. 27. s. 1. n. 1, 2. 29 no more ground against delegating this jurisdiction in this way, than in the other. Whence the same power is required in a Prelate of the Church, or Pastor, to grant this faculty, as is necessary to dele gate jurisdiction. The same power also suffices ; for it has, as I said, the same effect. It is of no moment in which way it takes place, nor doth it require greater jurisdiction. So then, whosoever hath or dinary jurisdiction in this Court in regard of the faithful, can give them the power of choosing a Confessor ; provided that the Curate has the condi tions requisite to enable him to delegate his juris diction to him. For this condition is always to be understood. As, conversely, so often as an ordinary Pastor delegates his jurisdiction to a Priest, it is necessarily understood to be relatively to those faithful, who are subject to his jurisdiction: for those two, as I said, are correlative and connected. So, then, each of those ordinary Pastors [the Pope, the Bishop, the Parish Priest,] can give this faculty. For each is an ordinary superior in this Court. So, then, on the one hand, he can give the faculty ; on the other, because he has the ordinary power, he can delegate it." Mr. Allies' perplexity has arisen, partly, in applying to a system where confession is not compulsory, maxims of a system where it is ; partly, in his taking the words "delegated jurisdiction" in too narrow a sense, even on the principles acknowledged by 30 Roman writers themselves. For he contemplates only two cases ; " ordinary jurisdiction," in which, together with the cure of souls, the Bishop gives " a part of his own ordinary jurisdiction as regards such particular souls ;" or, secondly, in which he gives a " delegated jurisdiction, to one qualified by sacer dotal orders, over the whole or any portion of his flock, as to a vicar-general, or a penitentiary." To this Mr. Allies says, the only exception is, "that'' any priest may absolve any penitent from any sin, in articulo mortis." In which " particular case," he says truly, " the practice has given the jurisdiction." But then he admits another mode of conveying of jurisdiction, which materially affects the meaning in which the term must be taken, viz. practice, i. e. custom or con suetude. The idea of "delegated jurisdiction" (I trust to show on the authority even of Roman writers) ex tends even further than this too. It includes, among others, (1.) all cases in which the law of the Church gives to persons, liberty to choose for themselves. (2.) All cases in which the bishop or the parish priest himself gives leave to choose some other than the parish priest. (3.) All cases in which tacit consent is given by custom, for each person to choose for him self In all these and other cases, this permission, whether expressed or tacit, (as in the case of " cus- ' Royal Sup. p. 57. 31 tom,") was, at the time of the Reformation, consi dered to convey jurisdiction to any simple priest, without cure of souls. " It makes no difference," says Gregory de Va lentia ^ "whether any obtain jurisdiction from the law (jure), or from man (i. e. by the concession of the ordinary minister), or from custom, supposing he ob tain it lawfully by any one or more of these ways, as appears from what is commonly disputed hereon by Doctors, especially John Medina, de Conf. qu. 31, and Soto, Dist. 18. qu. 4. Art. 2." If the word " delegated jurisdiction" be not under stood in this wider sense, the maxim which Mr. Allies quotes from the Council of Trent, would, in a number of cases, contradict the practice of the Latin Church up to that time. These cases spread over a wide field of varied character, and many of them are not directly appli cable to the present case. But they are all of im portance in showing what is meant by "jurisdiction." At least, they all together show what "jurisdiction" is not essential to valid absolution ; i. e. any autho rity over the individual himself, direct or indirect, except that "authority" which Christ has "com mitted to" all priests to " absolve from all their sins, in the Name of the Father, and of the Son, and of the Holy Ghost*," all sinners who, with true con trition, confess their sins. ' I.e. * Form of absolution in the Visitation of the Sick. 32 1. The case, which Roman Divines find most trouble to bring under any sense of jurisdiction is that of the Pope himself. Vazquez says that they " harass ° themselves extremely under it," through setting up a false principle as to jurisdiction. No one, according to them, has any jurisdiction over the Pope, whence one went so far as to say that " he need not confess at all," which Almayn ° declares to be heretical. I mention this extreme opinion, to show that the case is a real difficulty, according to the over-rigid interpretation of the words urged upon us, that " a Priest must have authority, ordinary or delegated, over the person whom he absolves." Others have laid down, that all Priests have " ordi nary jurisdiction" over the Pope ; which Dom. Soto ' again rejects as absurd ; for then all priests would be set over him, and might compel him to use confession. Others ^ have said that the confessor receives special authority to that end from God. If by this, it were meant, that he received it from God Himself, then this would be a concession of the whole ques tion, in that it would admit that jurisdiction was " Jam vidimus quam varie auctores se torqueant. Qu. 93. Art. 1. Dub. 2. n. 39. " Almayn d. 18. q. 1. (de pot. clav.) quotes Panormitanus for this ; but P. says the contrary on the deer, de pcenit. et remis. c. omnis. Vazquez mentions it on the authority of Almayn. ' In iv. Dist. 18. q. 4. Art. 2. p. 462. Add Vazquez, 1. c. " Panorm. and Palud. quoted by Navarrus ad cap. Placuit de Poen. Dist. vi. n. 15. M. Canus rel. de Pcenit. p. v. 33 given by God, " apart from the Pope and the Uni versal Church." If it was said, that it was given by the Pope himself, (and this is said to have been at one time the common opinion,) Melchior Canus answers : " A Bishop Deacon can give to others the authority which he has not himself, to absolve those whose shepherd he is, but those only ; the Supreme Pontiff is not his own shepherd or judge ; therefore he cannot commit to another the power to absolve himself." Again Navarrus ^ answers, on the principles of the law, the Pope cannot give jurisdiction over himself. " He has not jurisdiction over himself, be cause he has it not over a successor, (argum. 1. pen. ffi de recept. arbitr. and c. innotuit de election.) and none can give what he has not." (Cap. quod autem dejure patron. 1. si universse. C. de Leg.) Again Sylvester says, " the ' Pope cannot be ab solved in the outward court, because he cannot be bound by any excommunication, as having no supe rior. But in the Penitential Court, a sinner can be bound, and Christ hath not left him without remedy, but he hath a confessor, whomsoever he chooses ; who, by the authority of Christ, can loose or bind him: for, as from the beginning, any priest coidd absolve any one who was willing to submit himself to him, so it is now as to him who is subject to none." Others, again, used the Galilean principle that a Council was above the Pope, and said that the ' 1. c. ' Summa v. Confessor, i. D 34 jurisdiction was given " not ^ to the Pope, but to the whole Christian Church." And so they said that " the priest chosen by the Roman Pontiff as confes sor, had jurisdiction over him by the tacit or express commission of the whole Church, because he has no superior in the Church but the Church herself" This was, of course, opposed by those who objected to the Galilean doctrine. It admitted the principle that jurisdiction " might be given by a tacit com mission;" ^¦. e. that express delegation of authority was not required. " Most ^ Italians, especially the Romans, approved of the opinion of Caietan," viz., that " the principle of absolution lies in the power of order, not of jurisdiction ; that the power of juris diction only concurred to this, that it placed the sinner under the other, either simply, or as to those sins. Whence towards one who could subject himself to whom he would, no jurisdiction was required in him who ministered this sacrament." This which, Navarrus says, was extensively received, again makes it a matter of positive law ; and justifies in principle, the English practice, that no special jurisdiction, beyond what is given by the law itself, is necessary in order to receive the confession of one who is free to commit himself to whom he will. Almayn said, that "the* Pope was not bound to confess to a Priest, whether ordinary or delegated, but to one freely chosen by himself." This was to ^ InNavarr. 1. c. n. 27. ' Plerisque omnibus, ib. n. 19. " In dist. 18. q. I. Art. 4. 35 cut the knot, being, in words, directly opposed to the statement of Pope Eugenius at the Council of Florence. Navarrus lays down % " that in the court of con science the power of those who absolve is one, i. e. a ministerial [power] given by God, together with the order of the Presbyterate, although a different matter is subjected to different persons," and then infers from this " the reason ** why a simple Priest can absolve from sin, the Pope submitting himself to him ; because the Priest, although a simple Priest, does, in absolving, rest upon the Divine authority ; and to that authority, because it is Divine, the Pope can, without consent of another, submit himself, in that he has no superior, nor requireth any consent, nor is it unbefitting for him to submit himself to a Divine power." And so, in conclusion, Vazquez admits and en forces, so far, the principle of Navarrus and others, which I have stated above, that Priests have juris diction given them by Christ, together with the power of the keys, in ordination, like " the chartu lary judges ;" but the individual over whom it is to be exercised is to be assigned to them by the Church ; and that the Pope assigned himself, not giving to the Priest to whom he confessed, the active power, but submitting himself to it. And Medina argues from ' In dist. vi. de Poenit. c. i. in princ. n. 19, 20. and in c. Placuit, n. II. ^ According to the gloss in c. nemo and c. sane de off. deleg. D 2 36 this very case, that any one who has leave from his own priest may confess to any Priest whatsoever without cure of souls. " This is plain," he says ', " se condly, from the case of the simple Priest to whom the Pope submits himself, who hath power over the Pope himself, on the simple ground and no other, that with the power of order he hath a subject matter, i. e. the Pope, who could, if he willed, subject himself to him." " John ** Andreas says plainly, that since he is a man who can sin, he has to submit himself to a Peni tentiary ; because he has none above him to whom he can go, he has to submit himself by himself to another — whereas he cannot, by himself, absolve himself, nor have himself absolved by another." This solution, again, makes the restriction of con fession entirely a positive law. It places the Pope in the same condition in which all Christians were, before the Church interposed to limit the use of the power of the keys. 'Before that, any Christian might apply to any Priest ; any Priest might receive a penitent who applied to him. But the restriction being through human law, may be removed by human law, as it has been by the English Church for her children. It must be added that, however it might be hoped ' Cod. de Conf. qu. 34. n. 3. " In c. significasti v. jurisdictioni iiiforo comp. quoted by Dom. Jacobatius de Concilio (Bibl. Max. Pontif. T. ix. p. 317), who quotes also Anton, de Butrio and Domin. in c. i. de constit. 37 that one in so sacred an office might be kept by God's grace from deadly sin, yet, with the memory of the Popes of the 10th century, of Alexander VI. or Julius II., it is no abstract question how one in such high office may be at peace with God, having been severed from Him by deadly sin. II. The same principle applies to all Bishops and Clergy, who were allowed by the positive law to choose their own Confessor. Aquinas refers to the positive law distinctly in this case, placing the Pope and Prelates, so far, on the same ground. He is answering the case alleged : "There are some, as the Pope and Prelates, who seem to have no priest of their own, since they have no superior." He answers, " Since ' Prelates are obliged to dispense the sacraments which the clean alone ought to handle, therefore they are allowed by the law to choose those who shall be their own priests, as well as confessors, who, thus far, are supe rior to them ; as also one physician is cured by another, not in that he is a physician, but in that he is sick." The law then required persons to confess to "their own priest ;" the law exempted Bishops from its own rule. It is not in either ca^e a matter of inherent fitness, but of positive regulation. Pope Gregory IX. (a.d. 1232) dispensed, in these cases, with the recent rule of the Lateran Council. " Lest ' through " Suppl. 3 p. qu. 8. ad 4. ' Deer. Greg. 1. v. tit. 38. c. 16. 38 the deferring of penitence, souls be perilled, we permit (Pope Gregory says) Bishops and other superiors, and lesser exempt prelates also, that even without the licence of their superior, they may choose a prudent and discreet confessor for themselves." You will observe that the Bishop, when using confession, is not represented as inferior to him whom he chooses as his confessor, on the ground that the other has his authority from the Pope ; nor indeed was that other appointed by the Pope. The Pope allowed all these not to ask licence of their superiors, but to choose a careful and discreet con fessor for themselves. The Bishop becomes so far inferior, because he goes, not as a Bishop, but as a man and as a sinner, to the Priest. Whoever makes confession, confesses, not as what he is by his office, but as a sinner. As a sinner, seeking God's sentence of pardon through the power left by our Lord to His Church, he is inferior, in that act, to him from whom he receives it. He submits himself to the other. Much more may we. Priests or laymen, sub mit ourselves, for the time, to those to whom, as Minis ters of God, we lay open the wounds of our souls. This is an instance in "which the law permits that " one may subject himself to another " who had be fore no jurisdiction over him. Nor even in the limited case, if the individual to whom a Bishop chose to submit himself were a priest under him, can it be said (according to the rules of the law upon which Mr. Allies is arguing), that the Bishop gave 39 him jurisdiction over himself as a man, and then submitted himself to that jurisdiction. Even the Pope, as we saw, is not held to give that jurisdiction over himself. But Bishops are not limited to their own priests, nor is this even suggested by the De cretal. If the Bishop were to confess to another Bishop (and surely it would be nothing strange that a Bishop should use confession to another), he would be submitting himself to one to whom he could in no way give jurisdiction ; and who, of himself, had none over him. It is contended also ^ that Bishops were not subject in this respect to Archbishops, nor Archbishops to Primates, nor Primates to Patriarchs, but only in the outward Court. If this be so, it would follow, that, until the theory came in, that all Bishops were under the Pope, i. e. through so many centuries, all Bishops, when they did use confession, used it with one who had no jurisdiction over them. And this is probably true, since there is no proof whatever that they ever were so subject. It is true, that an inferior or an equal cannot give jurisdiction ; but he may submit himself to it. And the very fact that he may submit himself to an equal or an inferior, shows the more that the jurisdiction necessary is possessed already. Mr. Allies says, "a person' cannot make himself subject to another ^ Vazquez, qu. 93. Art. 1. dub. 2. n. 41. & Dom. Soto Dist. 18. q. 4. Art. 2. against Sylvester and Palud. d. 17. q. 3. Art. 2. concl. 2. n. 2. and (as Soto says) " most canonists." ' Royal Sup. p. 56. 40 at his own will, for this power descends from above, and does not ascend from below." But the more that principle is true, that " power descends from above," the more clear it is, that since persons are allowed by that law to subject themselves to others, whether Bishops or Priests, those Bishops and Priests had all the jurisdiction needful lodged in them already, provided that the other could lawfully sub mit himself. The jurisdiction in this case is said to come not from the Bishop, but from the law. Yet this is only that the law permits the Bishop to choose his confessor. " Any * Priest whatever hath fro7n the law jurisdiction to hear the confession of any Bishop whatever, when he is selected by him to that end, as also of any inferior Prelate Avhatever, such as are all Superiors whatever in any order, according to Sotus (d. 18. q. 4. Art. 2)." " The Con fessor of a Bishop," says de Palude ', " has authority, not from him who selecteth, but from the law which permitteth." Sylvester calls this, "jurisdic tion, conceded or permitted by the lawV' as a third class, distinct from " ordinary jurisdiction," or dele gated in its narrower sense. But there is no difference in principle whatever, whether the law allow Bishops and heads of religious houses to choose their own Confessor, or whether it alloM^ all the people. In both cases it is lawful authority, because the law gives it. ' Greg. Val. 1. c. ' in iv. dist. 17. 3. Conf. i. 2. Hence he says, that the " proprius sacerdos" [of the Council of Lateran], taken largely, is " a lawful hearer of confessions." See also Stephanus Auffrerius below, p. 95. 41 III. The power of choosing to whom they would confess, which was given by the law to Bishops and the superior Clergy, was, by custom, extended to all Clergy. These had also the power, not of choosing one confessor only, but one at one time, one at another. In some countries, the rule founded on the Council of Lateran, a.d. 1215, as far as it included the Clergy, was removed by positive law. " The Synod of Nismes, a. d. 1284, gave free liberty to Parish Priests and all Presbyters, to choose as Confessors whom they would, out .of the Parish Priests and Presbyters of the same tract, especially Archdeacons, Archpresbyters, Franciscans, and Do minicans." " In order that Mass and other Divine Offices might be celebrated with purity of conscience," the Council of Narbonne, a.d. 1374, (can. 18,) permitted "any Priest, as often as he needed or had opportunity, to confess his sins to any qualified Priest ', though not having cure of souls, and to receive the benefit of absolution from him, except in ordinary reserved cases." Two further concessions are cited from Spanish Councils*: "The Council of Tarragona, a. d. 1329, ' Cone. T. xi. App. Col. 2506. * Thomassin (i. 2. 10.) quotes them from " Const. Concil. Tarrag. L. v. T. 17." I cannot find the Councils at those dates, either according to the Christian or the Julian era, in Mansi or Aguirre, but they are plainly genuine Constitutions. Mansi, T. 25. p. 848. a.d. 1329, has a Council of Tarragona incorporating one of a.d. 1253, in can. 28, "We, the sacred 42 allows that any Presbyter who wishes to celebrate mass, if he have not access to his own Priest, may confess his sins to any qualified (idoneo) Presbyter, and receive the benefit of absolution." The Council of Tarragona, a.d. 1391, extends this : " Even if his own Priest be present, as often as a Presbyter purposes to celebrate mass, we give them full liberty to confess and absolve one another of the things confessed." But, eventually, Navarrus writes, (and all others agree with him,) that " all " Presbyters, among Chris tians every where, were wont to choose what other Presbyters they pleased, as Confessors." "Up to this day, we Presbyters, all and each, choose every where to which Presbyter we would confess, of whom many have no jurisdiction towards those who choose them. Nor can you say that they do this on the ground of custom, since custom avails not that any one can choose a confessor." This arose out of custom, against the positive law. But custom was held to be only then not of avail when it was against the will of the superior. It is thus expressly limited in the decree of Boniface VIII. a.d. 1294, " It ' can be introduced by no custom that any one, against [praeter] the allowance of his superior, may choose to himself a confessor, who can bind or Council approving, give to all the presbyters of our province power, that one may impart to the other the benefit of abso lution, as to the sentence of excommunication." " 1. c. n. 28, and 12, 13. ' Sext. Deer. lib. v. t. 10. de posn. et remis. c. 2. 43 loose him." " I answer," says Navarrus ^ "that Pres byters do this by the licence, tacit or expressed, of their superiors. For the Pope, the Bishops also. Archbishops, and their vicars, the other Prelates also, and Parish Priests, seeing all priests choosing to themselves confessors every where, to bind or loose them, and in no way withstanding, seem tacitly to will that it be done." " Custom," he continues, " can give jurisdiction, even to one who otherwise has none, as is said in the cap. ' cum contingat ',' where this con clusion is received by all. Moreover, the Pope can grant, yea, does every day grant, by his bulls which issue continually from him, to any peasant or moun taineer whatsoever, that he may choose what con- '^ 1. c. n. 33. Others for "praeter" substituted "sine," with out. The sense must still be the same, since, in fact, the prac tice, which the decree, so taken, says could not be brought in by custom, was brought in by custom, not by positive law, nor by express permission of Bishops. Navarrus says that the excep tion is virtually contained in the words themselves, or the reason of the thing. The text says it cannot be " brought in by custom that he should choose to himself a confessor without licence," " unless," Navarrus says, " the same custom, expressly or tacitly, gives to the person so chosen the actualfaculty of absolving, over and above that habitual faculty which he hath from the orders he has received." He gives as a parallel instance the gloss on the words " it is against the substance of an appeal, that it should be made to an equal or inferior, (de consuetud. vi. 2.) unless," the gloss adds, "that same custom makes the judge appealed to as an equal or inferior, superior at least as to that article," according to Panormitanus (in c. fi. 2. not. de dilat.), Perusinus and Decius (in rubr. de appellat.), 1. c. n. 43. ' Decret. Greg. lib. ii. tit. 2. de foro competent, c. 13. 44 fessor he wills. This then can be brought in by custom. For there seems no principle of difference between them. For if that were against the Divine law, it would not be granted by a privilege *. And if it is against human law only, custom can derogate from it =." " All these," says Sylvester ", [those included in the word "prselati," in which, first by custom, all Priests with cure of souls, although not properly "prajlati V' and then again by cms