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Penitentiary, Apostolic

PENITENTIARY, APOSTOLIC

One of the three tribunals of the Holy See (along with the Roman Rota and the Supreme Tribunal of the Apostolic Signatura), which have the task of upholding moral conduct and safeguarding justice in the comportment of both individuals and of the diverse offices of the Apostolic See. The Roman Pontiff is the supreme judge for the entire Catholic world; he tries cases either personally or through the ordinary tribunals of the Apostolic See or through judges delegated by himself (Codex iuris canonici c. 1442).

History. The early history of the Apostolic Penitentiary is marked by a gradual development of the penitential discipline of the Church of Rome particularly as applied to the pilgrims who came to Rome to honor the memory of the early Christian martyrs, to obtain forgiveness of their sins, in many cases to be freed from censures reserved to the Roman Pontiff, or to obtain graces and dispensations reserved to him. According to documents of 1200, a certain Cardinal Giovanni "de S. Paolo" heard confessions for the pope. Quite probably he was assisted by other confessors placed under his authority. In the time of Pope honorius iii (12161227), the cardinal who exercised that office was known as "Penitentiary," "General Penitentiary," then "the Highest Penitentiary," or as he is known today, "Major Penitentiary." He had collaborators among whom were some "friars" later called "Minor Penitentiaries."

Under Pope boniface viii (12941303) there were ten or more minor penitentiaries, almost all of whom were members of the Mendicant Orders. In the colleges of the minor penitentiaries functioning in three of the major basilicas there were also Franciscans, later known as Conventual Franciscans. pius v (15661572) introduced a radical reform of the three colleges of penitentiaries, and because of the widespread suppression of the Conventuals, misinformed (malus informatus ) as Pope sixtus v (15851590) would later write (see Gatti, 176), he dismissed them from the office of confessor (penitentiary) in the Lateran Basilica and appointed the Friars Minor of the Observance in their stead while at the same time appointing the Jesuits as confessors for St. Peter's Basilica. When clement xiv (17691774) reluctantly suppressed the Society of Jesus he appointed the Conventual Franciscans to the college of the penitentiaries in the Basilica of St. Peter. The Friars Minor of the Observance (today known simply as "Friars Minor") continue their service in the Lateran Basilica. The Dominicans are confessors at the Basilica of St. Mary Major, and since 1933 the Benedictines offer their services as confessors in the Basilica of St. Paul outside the walls. The minor penitentiaries, despite their name and the fact that they depend upon the Apostolic Penitentiary for their nomination, authority, and specific government, are not strictly speaking members of the Apostolic Penitentiary.

The Council of Vienna (13111312) decreed that the authority of the cardinal major penitentiary continue even during the interregnum (sede vacante ) of the papacy. benedict xii (13341342) with the bull In agro domini gave precise norms for the working and organization of the penitentiary, creating the office of "canonist" to assist the cardinal penitentiary in all juridical questions. In the course of time the competence of the cardinal major penitentiary extended beyond matters of conscience (the internal forum) to those concerning the external forum (public affairs and the government of the Church). pius iv (15591565) tried to reduce the exorbitant jurisdiction of the cardinal penitentiary, but it was pius v (15661572) who, after revoking all the faculties of the major penitentiary, went on to suppress the Apostolic Penitentiary entirely so as to radically reform it, reducing the cardinal penitentiary's authority in the external forum to a minimum and creating the office of "theologian" (which by privilege is reserved to the Jesuits). benedict xiv and St. pius x enacted further modifications, while benedict xv, in 1917, transferred to the Apostolic Penitentiary all matters concerning the granting and use of indulgences that St. Pius X had reserved to the Holy Office.

The most recent reorganization of the norms of this tribunal was undertaken by pius xi in the constitution Quae divinitus (March 25, 1935), which presents the fundamental structure and norms that govern the penitentiary. These norms were reconfirmed by john paul ii in his apostolic constitution on the roman curia, pastor bonus (1988).

Structure. Since Pius V and Benedict XIV, except for an occasional difference of nomenclature, the Apostolic Penitentiary is structured as follows: the Cardinal Major Penitentiary, the Regent, the Theologian, the Canonist and three Councilors, and three minor officials.

The cardinal major penitentiary assumes in his person all the faculties of the penitentiary. He is assisted by the regent and three minor officials. In the exercise of his authority, he acts collegially both in the Congress (which is the union of his ordinary collaborators for day-to-day solutions and decisions), and in the Signature (the collegial body made up solely of the prelates). He is not subject to the Congress; in other words, he may act contrary to the mind of his collaborators, but not without them; neither is he subject to the Signature. In the latter case, however, should he take a different stand, the fact must be noted in the protocol.

The regent has a position corresponding to that of the prelate secretary in the congregations of the Curia. He presides at the Congressunless the cardinal himself presidesand directs the ordinary work of the office with ordinary or delegated powers according to the prescribed norms.

The theologian, the canonist, and the three councilors are prelates who together with the regent form the Signature. The cardinal must seek their advice in cases of special difficulty or importance. The prelates may offer their assistance either as individuals or as a group in which they express their opinion by majority vote according to the rules prescribed for the Roman Curia. Matters exceeding the competence of the cardinal penitentiary are brought to the attention of the pope in the semi-annual audience which the cardinal has with him.

The minor officials are the aiutante di studio, the archivist, and the adetto di segretaria, who assist in carrying out the ordinary business of the Apostolic Penitentiary.

Competence. The Apostolic Penitentiary has two major areas of competency: matters of the internal forum and indulgences. The apostolic constitution Pastor bonus (nos. 117120) asserts that this tribunal has jurisdiction over all that concerns the internal forum, sacramental and non-sacramental, and whatever refers to the concession and use of indulgences, with due regard for the right of the Congregation of the Faith to examine questions that touch dogmatic doctrine in reference to indulgences. To the internal forum (typically ecclesial as opposed to civil) pertain what takes place in the intimacy of conscience and has immediate relation to God, and also occult (hidden) actions as long as they remain such.

The Apostolic Penitentiary grants absolution from sins and censures reserved to the Holy See. The reservation of sins as such has been done away with in the 1983 Code of the Latin rite but has been retained in the Code of the Canons of the Oriental Churches, which has reserved to the apostolic See (concretely the Apostolic Penitentiary) the absolution of the sin of direct violation of the sacramental seal and that of the absolution of one's accomplice in a sin against chastity (c.728 '1,1° and 2° Codex Canonum Ecclesiarium Orientalium, cc. respectively 1388 and 1378 of the Codex iuris canonici ). The Apostolic Penitentiary also grants dispensations from private vows (public vows belong to the external forum) and oaths; dispensations from irregularities and matrimonial impediments whenever these are actually occult, even though public by nature; the commutation of vows and other obligations; the validation of religious professions and of marriage; and the condonation of obligations to the Church and third parties. It may be approached even by members of the Oriental rites for the solution of practical cases of conscience.

In the vast array of matters within the competence of the Apostolic Penitentiary, it has the authority to resolve concrete, individual cases, whereas the solution of problems under the aspect of universality belongs to the Congregation for the Doctrine of the Faith. The solutions of the Apostolic Penitentiary are authoritatively bindingpreceptive or freeing from an obligation, according to the nature of the caseonly for the concrete circumstances which are submitted for examination. It is clear, however, that the doctrinal and disciplinary direction furnished with the solution can prudently be applied by analogy on a broader scale.

Procedure. The modus operandi of the Apostolic Penitentiary may be illustrated in the case of a priest who attempts marriage, even though civilly only, and thereby incurs an irregularity, reserved to the Holy See only in public cases (c.1047, '3 Codex iuris canonici ), and an automatic suspension (c.1394, '1 Codex iuris canonici ). If the penitent priest wants to exercise the priestly ministry, he must obtain a dispensation from the irregularity by recourse to competent authority. The censure of suspension, of its nature public, though not reserved, will be lifted by the same authority, competent to dispense from the irregularity.

Under the 1983 Code, there is no automatic excommunication consequent upon the crime of attempted marriage by priests. Since the censure of suspension does not of itself prohibit the reception of sacraments, priests who have attempted marriage and, though contrite, cannot separate from the woman they are living with may seek and obtain absolution and be admitted to the reception of the sacraments like lay persons provided their situation is occult, that they are truly penitent, namely that they promise to live chastely with their companion in a brother-sister relationship, repair as far as possible whatever scandal was given, and seek to regularize their situation as soon as possible, and this because the obligation of celibacy which is reserved to the Roman Pontiff alone (cf. c. 291) remains.

Cases submitted to the Apostolic Penitentiary are resolved as far as possible within 24 hours of their receipt. This is in obedience to the disposition given already by Benedict XIV and confirmed by Pius XI. The reason for this rule and for the effort of the penitentiary to abide by it is very clear: Salus animarum suprema lex ("the salvation of souls is the supreme law"). This salvation does not admit procrastination. Should a case present special difficulties so that a reply cannot be given immediately, the penitentiary acknowledges the receipt of the case at least with an interlocutory reply. In connection with the exigency of the principle enunciated above, the Church has provided in c. 1357 (cf. c. 1048, by analogy, regarding the exercise of orders by one who is irregular) the means whereby the state of grace can be regained by sacramental absolution even before recourse is made. In giving an interlocutory reply, the penitentiary always reminds confessors of the faculties granted to them by this canon and of the opportuneness to grant absolution to the penitent.

The rescripts (written responses) of the penitentiary are not stereotype formularies but specific answers drawn up to respond to concrete and specific cases in order not to give the impression of impersonal bureaucracy. In conformity with the norms governing the Roman Curia modern languages are used in so far as possible, even though preference is still given to Latin when writing an answer to a confessor.

Although the replies of the penitentiary never contain personal information like the name and surname of the addressee of the provision or opinion, the rule is that the rescripts and replies are to be destroyed as soon as possible as a maximum safeguard of the sacramental seal or of the secret of conscience. However, if the decisions of the penitentiary have relevance for the external forum (e.g., permission to receive the sacraments that might be a motive or cause of scandal should the person not be able to adduce proof in the external form of the now regularized position), permission is given to keep the rescript so that, if necessary, it can be produced as evidence. All responses are sent in a double-sealed envelope, the first of which carries the protocol number by which the case can be identified in future correspondence should the need arise.

Recourse to the Apostolic Penitentiary. As in general regarding all the organizations of the Holy See, all the faithful have the right to have recourse to the penitentiary either directly or through someone else. The nature of the matters involved and experience indicate that recourse should be made anonymously, through the services of the confessor if the matter has to do with sin or through a spiritual director if it is a matter of the internal nonsacramental forum. The recourse should be made in a clear and succinct fashion, presenting elements regarding the theological and canonical connotations, serious circumstances impinging on the common good as well as the state of mind and psychology of the petitioner. The request is to be addressed to the cardinal major penitentiary or the Apostolic Penitentiary, Città del Vaticano.

External Forum. Finally, the Apostolic Penitentiary is entrusted with whatever concerns the granting and use of indulgences, with due regard to the competence of the Congregation for the Doctrine of the Faith in whatever has to do with the dogmatic aspect of indulgences (see Pastor bonus, no. 120; Indulgentiarum doctrina [January 1, 1967], AAS 59 [1967]: 524), a revision of the doctrine of indulgences).

Bibliography: john paul ii, Pastor bonus (June 28, 1988). Enchiridion Indulgentiarum, Normae et Concessiones, 4th ed. (Vatican City 1999). Catechismus Catholicae Ecclesiae (Vatican City 1987), nos. 14711498. f. m. cappello, De Curia Romana, 2v. (Rome 19111912). l. chiapetta, Il Codice di Diritto Canonico, 2 v. (Napoli 1988). l. de magistris and u. m. todeschni, "La Penitenzieria Apostolica" in La Curia Romana nella Cost. Ap. Pastor Bonus (Vatican City 1990), 419428. n. del re, La Curia Romana: Lineamenta storico-giuridici (Roma 1970), 272274. i. gatti, "Da 50 anni i Frati Minori Conventuali nello Stato della Città del Vaticano (19481998)" in Commentarium Ordinis Minorum Conventualium 95 (1998):165193. e. goeller, Die Päpstliche Pönitentierie von Ihrem Ursprung bis zu Ihrer Umgestaltung unter Pius V, 2 v. (Roma 19071911). c. h. haskins, "The Sources for the History of the Papal Penitentiary,"The American Journal of Theology 9 (1905): 421450. l. ichonet, La sacrée Pénitentierie Apostolique: Etude de droit et d'histoire (Lyon 1908). l. larraona and s. goyeneche, De SS.Congregationum, Tribunalium et Officiorum constitutione et interna ordinatione post const. Sapienti consilio, in Romana Curia a B. Pio X "Sapienti consilio" reformata (1951), 123129. v. petra, De sacra Paenitentiaria Apostolica (Roma 1712). f. roberti, "De Curia Romana ante Pianam reformationem" Appollinaris 25 (1952): 1334. f. tamburini, "Per la storia dei Cardinali Penitenzieri Maggiori," Rivista di Storia della Chiesa in Italia 36 (1982): 332380.

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