RESERVE AND RESERVED CASES. - R., from the Latin verb reservare, evokes the idea of separation in order to dispose of something later, as needed, the idea of restriction or exception. In canon law it is the reservation to a superior, and especially to the Roman pontiff or the Holy See, of a power, a right, or the exercise of a right.
I. VARIOUS KINDS OF RESERVE AND RESERVED CASES
The Roman pontiff, as successor in the primacy of St. Peter, has the supreme and full power of jurisdiction with regard to the discipline and government of the Church, over the whole world, over individual Churches, over individual pastors and faithful, independently of any human power (can. 218; Vatican Council, const. Pastor aeternus, sess. IV, cc. 1 and 3; Denz-U. 1824-26). Of these supreme powers some, such as infallibility, are by their nature intransmissible; as for others, the pontiff, for their exercise, makes use of collaborators, as in the case of bishops, while nevertheless reserving by positive law to his direct jurisdiction the handling of certain major affairs, and these are the causae maiores (can. 220). These can extend to the doctrinal field (cann. 1323 § 2, 1350 § 2, 1999 etc.), legislative (cann. 380 etc.), administrative (cann. 215, 329, 492 ff. etc.), judicial (cann. 1537, 1962, etc.), penal (can. 2245 §§ 2-3). Cf. the entries: BEATIFICAZIONE; BENEFICIO; BENI ECCLESIASTICI; CANONIZZAZIONE; IMPEDIMENTI; IRREGOLARITÀ; MATRIMONIO. IV. Diritto e teologia; MISSIONI CATTOLICHE; PROVISTA CANONICA; VESCOVI; as well as PRIMATO (del Romano Pontefice); CONGREGAZIONI ROMANE.
Bishops are not mere vicars of the pope, invested as they are with ordinary power, even if, for the common good, it may be restricted. They themselves, on the other hand, have the power to limit the jurisdiction of their subordinates. The reasons for these various r. are many: to put an end to abuses, to make it easier to escape extraneous influences, especially of laypeople, to increase the sense of authority, etc., but they all reduce to one alone, the requirement of the common good.
Of particular importance, especially for practice, are the r. in penitential matters, and more properly those that are called reserved cases (cf. nevertheless can. 983)
II. RESERVE AND RESERVED CASES OF CASES
1. Notion and historical outline
Reservation in penitential matters is, in general, a restriction of jurisdiction, even if ordinary.
In the 5th century, as priests became the habitual ministers of the sacrament of Penance, public penance remained reserved to bishops, though it gradually fell into disuse (v. PENANCE). They then continued to reserve to themselves the absolution of sins of particular gravity, especially if public and a cause of scandal.
The desire and almost the necessity for bishops to have recourse to the Head of Christendom in the more complex cases gave rise, around the 9th century, according to Benedict XIV (De synodo dioec., I. V, cap. 4, n. 3), to pontifical reservations, and then to a special office (v. TRIBUNALS OF THE HOLY SEE, I: Apostolic Penitentiary). Often penitents themselves went to Rome for the forgiveness of their sins. There is a trace of this custom in conciliar provisions (cf. Council of Seligenstadt, can. 18 [p. 1023]; Council of Limoges of 1031). But the first properly so-called papal reservation occurs in the 12th century, with the famous can. 10 of the Council of Clermont (a. 1130), which reserved to the pope the absolution of anyone who had struck an ecclesiastic; a norm that passed into can. 15 of the Second Council of the Lateran (a. 1139) and into Gratian's Decretum (c. 28, C. 18, q. 4). A Council of London of 1143 reserved to the pope the absolution of those who used violence against churches, cemeteries and clerics (Hefele-Leclercq, V, p. 795: see also PRIVILEGES OF CLERICS). A series of papal reservations occurs in the Bulla in Coena Domini (v.). Papal cases, but especially episcopal ones, began to increase, and following the example of the bishops the religious Superiors did likewise. More than once the Holy See had to intervene to limit the number of reservations, while nonetheless maintaining the principle. The Protestants were the first to attack this right of the Holy See and of bishops to reserve to themselves the absolution of certain cases (cf. Leo X, bull Exurge Domine, 12-13; Denz-U 752-53).
The Council of Trent then reaffirmed this right of the Roman Pontiff and of bishops (sess. XIV, can. 11; Denz-U, 921; sess. XIV, cap. 7: ibid. 903), a right included in the broad potestas clavium, ligandi et solvendi (Mt. 16, 18-19; 18, 18; Io. 20, 19). Sixtus V, with the bull Sanctum et salutare of 5 Jan. 1589, reserved to himself the sin of simony committed in promotion to Sacred Orders, without attaching a censure to it; a reservation confirmed by Clement VIII (Romanum Pontificem, 28 Feb. 1596). Benedict XIV then reserved (bull Sacramentum Poenitentiae, 1 June 1741) the sin of falsely denouncing solicitation in confession.
The Synod of Pistoia had taken up the Protestants' doctrine against reservation; but there followed the condemnation of Pius VI (Auctorem fidei, 28 Aug. 1791, propp. 44-46; Denz-U, 1544-1546). Pius IX reorganized the discipline of reservations by making an authentic list of reserved censures (const. Apostolicae Sedis, 12 Oct. 1869). Wise norms were then issued, shortly before the publication of the CIC, which then made use of them, by the S. Congr. of the Holy Office with the instruction of 16 July 1916 (AAS, 8 [1916], p. 313 ff.). Reservation is therefore an act of the superior, who reserves a particular case to himself, withdrawing it from the judgment of his inferiors. There is therefore in reservation a passage from a lower tribunal to a higher one. Hence in reservation all inferiors come to be deprived of a determined competence, even if invested with ordinary power; therefore the deprivation of jurisdiction is not a reservation, for example, in the case of the priest who is an accomplice with regard to the sin of complicity.
2. Various kinds of reservation of cases
a) According to the object. The object of the reservation of cases in ecclesiastical law can be the sin as such and the censure attached to the sin. In the first case the inferior confessor is incompetent to absolve such a sin. In the case of the censure, the absolution of the latter is reserved to the superior, not per se that of the sin, so that if, for any reason, the censure should lapse or should not have been incurred, the sin would not be reserved and any confessor could absolve it. The reserved cases, listed in book V of the CIC, are all reserved ratione censurae. b) According to the author. There are cases reserved to the pope, to the bishop, to the religious superior. Cases reserved to the bishop do not bind outside his territory. Cases established by the Superior of an exempt clerical religious order or by the abbot of a monastery sui iuris affect only subjects.
3. Purpose of reservation
a) The purpose of reservation is not penal with regard to the confessor, nor even with regard to the penitent who is reached by the reservation, only through the confessor. b) The purpose of reservation is not principally medicinal, since it is not directed to the private good of the penitent (though this is not excluded), but to the common good of society, which requires that the judgment of a very grave case be brought to the higher tribunal. c) The purpose of reservation is instead directly disciplinary. The two purposes, disciplinary and medicinal, are frequently recalled by the instruction of the Holy Office (13 July 1916) and by the CIC (can. 879).
In book V of the CIC reservation is also considered as a penalty, since it is established to aggravate censures, but it does not change the nature of reservation, because whatever penal character it has there, it derives from the censure attached to it.
Since reservation is not per se penal, ignorance of the reservation does not per se excuse; at least for sins reserved ratione sui. The legislator, however, can establish otherwise in some particular case; as indeed the CIC has done for censures (can. 2247 § 3).
III. THE RESERVATION OF SINS.
1. Author of the reservation
It is he who has the ordinary power to grant the faculty of hearing confessions (v. PENANCE) or to inflict censures (v.), excluding the vicar capitular and the vicar general without a special mandate (can. 893 § 1). Before all others comes the Roman pontiff.
The Ordinary can proceed to a reservation only after having discussed it in the diocesan Synod or, outside the Synod, after having heard the Cathedral Chapter and some of the more prudent priests in the care of souls (can. 895).
Among exempt clerical religious, the only competent authority is the Superior general and, in monasteries sui iuris, the abbot (can. 986). This faculty, however, is not unlimited; indeed one notices in the CIC a certain reluctance to grant it, given the clauses with which it surrounds it. The Superior general and the abbot sui iuris must consult their council (can. 896).
2. Conditions for the reservation
a) Subject to reservation are only mortal sins, external even if occult, specifically determined, certain, excluding every doubt of law or of fact, committed materially and by one who has reached puberty. The cases of reservation of sins made by the Ordinary must be three or at most four, and the reservation itself must not remain in force beyond the time necessary to eradicate some unusual public vice or to restore Christian discipline (can. 897). b) Ordinaries are to refrain from reserving sins that are already reserved to the Holy See ratione censurae (can. 898; cf. also can. 2247 § 1). Once a reservation has been imposed, Ordinaries must take care to give notice of it, in the best way possible, to their subjects and to watch that the faculty of absolving from the reservation is not given to just anyone (can. 899 § 1).
3. Reserved sins
The only sin reserved ratione sui to the Holy See, in the current discipline, is the false denunciation of the crime of solicitation (v.), made to the competent ecclesiastical Superiors against an innocent priest (can. 894). For sins reserved ratione censurae, see below.
IV. THE RESERVE AND RESERVED CASES OF CENSURES IN PARTICULAR
1. Power to reserve
The power to reserve follows the power to impose censures and to establish the norms for absolution from them (v. CENSURA).
A reservation previously established by the Ordinary ceases by law upon the supervening of a reservation made by the Supreme Pontiff. The CIC admonishes Ordinaries not to make reservations with censures, except in cases of special gravity and necessity for the maintenance of the discipline of the Church, and for the good of the faithful (can. 2246 § 1).
2. Reserved censures
Censures, as is well known, are distinguished into latae and ferendae sententiae. In common law censures latae sententiae are not reserved, unless this is expressly stated (can. 2245 § 1). Among those expressly reserved, some are reserved to the Holy See, others to the Ordinary. The censures reserved to the Apostolic See are either simpliciter reserved, or speciali modo or specialissimo modo. The principal difference among the three degrees of reservation lies in the fact that, respectively, an ordinary, or special, or most special faculty is required to absolve. In the CIC four excommunications are reserved to the Holy See specialissimo modo, eleven speciali modo, eleven simpliciter. Six excommunications are reserved to the Ordinary (v. SCOMUNICA). In this last case the reservation ceases in places where no Ordinary has authority, as in the middle of the Ocean, etc. Also in particular law, as in common law, censures latae sententiae are reserved only if this is expressly declared in the law (can. 2245 § 4).
According to some authors (Roberti, Michiels, Cabreros) they are not reserved, if it is not expressly declared in the precept, as can. 2245 § 4 teaches.
Censures ferendae sententiae, whether they are established by common or particular law or even by precept, after they have been applied, become ab homine and are reserved to the one who inflicted them, whether by declaratory sentence or by way of precept (can. 2245 § 2).
3. Effects of the reservation
The censured person cannot be absolved from sins unless he is first absolved from the censure (can. 2250 § 2). The reservation of a censure which does not prohibit the reception of the Sacraments (non-reserved suspension and local interdict) does not prevent the censured person, if properly disposed, from receiving the Sacraments; therefore he can be absolved from sins, even though the censure remains in force (can. 2250 § 1). It may happen that both the sin and the censure are struck by reservation together. Then the effects of the two reservations accumulate. In common law there is a single example in the false denunciation of the crime of solicitation, of reservation of the sin ratione sui (can. 894) and ratione censurae (can. 2363, that is, excommunication speciali modo reserved to the Apostolic See).
V. ABSOLUTION FROM RESERVED SINS AND CENSURES
In danger of death, any priest can absolve any reserved sin (v. ARTICLE of DEATH); outside of danger of death, a special faculty is required. 1) In the single sin reserved to the Holy See, such faculty belongs to the supreme pontiff, to the cardinal penitentiary and to the other cardinals (can. 239 § 1, no. 1). 2) In cases of a sin reserved to the Ordinary: a) such faculty to absolve belongs, by law, to the canon penitentiary (can. 401 § 1); and it must habitually be granted at least to the vicars forane, with the faculty of subdelegating to the confessors of their own district, especially in places more remote from the episcopal see, if and when confessors have recourse to them in some urgent case (can. 899 § 2). b) Pastors and those who are considered as pastors can also absolve, throughout the entire time useful for fulfilling the Easter precept, as can individual missionaries during the time in which they conduct missions to the people or courses of exercises (can. 899 § 3). Finally, any reservation ceases (including reservations made ratione peccati to the Holy See: Commission for the Interpretation of the CIC, 10 Nov. 1925: AAS [1925], p. 583) for the sick who cannot go out and for spouses who confess in preparation for Matrimony. It also ceases every time that either the legitimate Superior who has been asked has denied the faculty to absolve, or, according to the prudent judgment of the confessor, the faculty to absolve cannot be requested without grave harm to the penitent or without danger of violation of the sacramental seal. It ceases outside the territory of the one reserving, even if the penitent has left precisely in order to obtain absolution (can. 900). The pilgrim is bound by the reservations of the place in which he is staying (Commission for the Interpretation of the CIC, 24 Nov. 1920: AAS, 12 [1920], p. 575).
Il confessore che agisce in buona fede (o ignorando anche con ignoranza crassa o non avvertendo la r.) as-
validly absolves the penitent from the censure and from the sin, with the exception of censures reserved ab homine or specialissimo modo (cann. 2247 § 3 and 2246 § 3); the same principle applies also when the confessor, being unaware, absolves from a reserved sin without censure. If, on the other hand, the confessor acts in bad faith or knowing of the unlawful absolution, the absolution from a sin reserved ratione sui is of itself invalid; the absolution from a sin reserved by reason of the censure may be considered valid, given the theoretical controversy that exists concerning its validity. The priest, however, who presumes, without the necessary jurisdiction, to absolve from reserved sins is, ipso facto, suspended from hearing confessions (can. 2338 § 1). And if he knowingly or with affected ignorance absolves without necessity from reserved sins, he sins gravely because he violates a grave law of the Church, and because he exposes the sacrament of Penance to the danger of nullity. The penitent who, through involuntary forgetfulness, omits to mention the reserved sin in a confession made to a confessor possessing the privilege, is validly absolved. Nevertheless he is bound to confess the omitted sin, which by now is no longer reserved, in his next confession. The same must be said if such a confession is made to an ordinary confessor, unless it is a case of a censure specialissimo modo reserved to the Holy See (can. 2249 § 2). If someone sacrilegiously conceals a reserved sin, this is certainly not remitted; if he candidly confessed the reserved sin but committed the sacrilege for another reason, it seems that the same reservation is lifted, since a confessor who had the faculty judged it and imposed a fitting satisfaction. In the subsequent confession, therefore, the penitent must repeat the whole accusation and confess the sacrilege committed, but from that point he can be absolved even by an ordinary confessor.
BIBL. oltre ai trattati di morale e di diritto de poenitentiae, de censuris, de poenus; cf. A. De Smet, Tractatus de casibus reservatis, Bruges 1914; F. Fuster, Los reservados episcopales segon el nuevo Codigo, in Razón y fe, 52 (1918), p. 510 sgg.; 53 (1919), pp. 103 sgg., 216 sgg., 310 sgg.; N. Farrugia, De casuum conscientiae reservatione, 2ª ed., Torino 1922; E. V. Dagan, Reserved Cases, Washington 1924; E. Ranwez, De peccatis reservatis, in Coll. Namurcenses, 21 (1927), pp. 120-43; V. Coucke, De absolutione a peccatis reservatis, in Coll. Brugenses, 58 (1928), pp. 233-36; I. Bryx, De absolutione a censuris in periculo mortis, ibid., pp. 289-93; A. M. Darmanin, De reservatione peccatorum iure Codicis Piano-Benedictim, in Angelicum, 5 (1928), pp. 38-70, 213-41, 539-54; F. Claeys Boëdaert, Quinam a censuris absolvere possunt, in Coll. Gandavenses, 16 (1929), pp. 11-18; 53-57; I. Vitali, De reservationibus pontificis a iure reservatis Ordinario deque Regularium privilegio ab iisdem absolventi, in Comm. pro Relig., 14 (1933), pp. 287 sgg., 363 sgg., 436 sgg.; 16 (1935), p. 164 sgg.; S. Alfonso, La reservation de pecados, in La ciencia tomista, 48 (1933), pp. 5-23, 163-77; G. Moschetti, Bibl. iuris canonici, in Apollinaris, 14 (1942), pp. 244 sgg., 344 sgg. E inoltre: A. Gougnard, De notione peccati reservati, in Collectanea Mechliniensia, 10 (1936), pp. 149-56; id., De absolutione a peccatis reservatis, ibid., pp. 276-82; A. Bride, Réserve, in DThC, XIII, coll. 2247-61; I. Bruno, De causis maioribus..., Roma 1941; A. Mancini, Sulla facoltà di assolvere i riservati, in Palestra del clero, 22 (1942), pp. 9-10; F. Roberti, De delictis et poenus, I, 2ª ed., Roma 1944, n. 291 sgg., p. 333 sgg.