The Ordinatio of John Duns Scotus :: Ordinatio. Book 4. Distinctions 14 - 42. :: Book Four. Distinctions 14

Seventeenth Distinction

Single Question. Whether for Salvation a Sinner Needs to Confess all his Sins to a Priest

1. “Here arises a question etc.” [Lombard, Sent. IV d.17 ch.1 n.1].

2. About this seventeenth distinction I ask whether for salvation a sinner needs to confess all his sins to a priest

3. That he does not:

On Luke 22.62, where is written of Peter that after his denial “he wept bitterly,” Ambrose says [On Luke 10 n.88], “Tears wash away a transgression that it is shame to confess by voice; I read his tears, I do not read satisfaction.”

4. Again about Psalm 31.5, “I said, I will confess,” Cassiodorus says [Exposition on the Psalms 31.5, taken from the gloss, Nicolas of Lyra]: “‘I said’, that is, I deliberated with myself, that ‘I will confess, and you have forgiven’; great the mercy of God, because he remits sins for a promise alone.”

5. Again, Augustine on the same psalm [Expositions of the Psalms, ps.31, 2 n.15; Lombard, Sent. IV d.17 ch.1 n.3], “He does not yet pronounce [his sins] but promises he will, and God dismisses them.”

6. Again, Ezekiel 18.21-22, “In whatever hour the sinner laments [his sins], his life will live” [supra d.14 n.128].

7. There are other authorities for this set down in the text [Lombard, Sent. IV d.17 ch.1 n.4], about Lazarus, John 11.44, that he was resuscitated first before being loosed from his grave clothes, and about the lepers, Luke 17.14-15.

8. Again by reason:

Only the precepts of the Decalogue are necessary for salvation, according to the response of the Savior in Matthew 19.17, “If you wish to enter into life, keep the commandments,” and elsewhere [Luke 18.20, 28], “You know the commandments.. .this do and you shall live.” Therefore , if confession were necessary simply for salvation, it would be contained under one of the ten precepts of the Decalogue; but this is false; for the precepts belong to the law of nature, and were at least binding in the time of the

Mosaic Law, but neither in the law of nature nor in the Mosaic Law was there an obligation to confess sin to a man; therefore etc .

9. Again, “no one is obligated to what is impossible” [Digests of Justinian, L ch.17 n.185]; but the dumb cannot speak. Again, everyone who is a stranger among those for whom he is a barbarian is dumb; therefore, he is not bound to confess.

10. Again, he who does not have a priest present cannot confess verbally to him, nor is he bound to confess in writing, because no precept is found issued about this.

11. Again, no one is bound to lie; rather everyone is bound by the Divine Law not to lie, at least perniciously; but he who is conscious that he has for his whole life lived innocent or without mortal sin, would be lying if he were to confess he had sinned at least mortally; therefore etc .

12. To the contrary:

James 5.16, “Confess your sins one to another.”

13. And in canon law [Gratian Decretum p.2 cause 33 1.3] are adduced many authorities that the Master adduces in the text [Lombard, Sent. IV d.17 ch.1 nn.6-9].

14. One is from Ambrose [On Paradise ch.14 n.71], “No one can be justified from sin unless he has first confessed his sin.”

15. And Augustine [Sermon 392, ‘To the married’, ch.3 n.3], “Let no one say to himself, ‘I do penitence in secret, God knows what I do in my heart’.” And there follows, “So it was said without cause, ‘What you loose on earth will be loosed in heaven’ [Matthew 18.18], and if they keys were given without cause, we make void the word of Christ.”

16. And the same Augustine on that verse in Psalm 68.15-16, “Let not the deep swallow me; and let not the pit shut its mouth on me,” says [Expositions on Psalms ps.68 1 n.19], “The pit is the depth of iniquities, and if you fall into it, he will not close his mouth on you if you do not close your own mouth.”

I. To the Question

17. In this question there are three things to look at: first, by what precept a Christians is bound to make confession to a priest of sin he has committed; second, what that precept about confession includes; third, what has been further articulated about it by precept of the Church.

A. By what Precept a Christian is Bound to Make Confession to a Priest of Sin he has Committed

1. About Natural Right and Divine or Ecclesiastical Positive Right

18. About the first, we cannot find for the issue at hand a precept by which someone is bound to confession save one either of natural right or positive right, and the latter either of divine or ecclesiastical right.⁴⁹

19. Now that precept is a practical truth of natural right whose truth is known from the terms, and then it is a principle in the law of nature (as in speculative matters too a principle is known from the terms), or it is what evidently follows from such truth thus known, of which sort is a demonstrated practical conclusion. And strictly speaking, nothing else is of the law of nature save a principle or a demonstrated conclusion. However, by extending it as follows, sometimes that is said to be of the law of nature which is a practical truth consonant with the principles and conclusions of the law of nature, insofar as to everyone is it known at once that it agrees with such law. And hereby does it appear that Gratian [Decretum p.1 d.1 ⁵⁰] does not speak about the right of the law of nature correctly in wanting all the things that are in the scripture of the Old or New Testament to be of the law of nature; for neither are they all practical principles known from the terms, nor demonstrated practical conclusions, nor truths evidently consonant with such principles and conclusions. Therefore, exposition must be given of Gratian, that he is extending natural right to right posited by the Author of nature as it is distinguished from positive right, which clearly is posited by someone who is not author of nature.

20. The second member [n.18], namely about divine positive Law, is plain from what has been said [n.19, also Ord. IV d.1 nn.223-257, 343-345, 357, 370-381, 389-392].

For whatever is contained in Scripture for the time for which it is to be observed, and yet is not known from the terms, nor demonstrable from such known truths, nor at once evidently consonant with such truths, is merely of divine positive right, of which sort are all the ceremonies of Jews for the time of that law and of Christians for the time of our Law. For it is not known from the terms nor demonstrated nor evidently consonant with such truths that God is to be worshipped in the animal sacrifices of the Old Law (and this for all time), nor that he is to be worshipped in our ceremonies, namely in the offering of the Eucharist and the chanting of Psalms, although these are consonant with the law of Nature such that they are not repugnant to it.

This fact is plain too, because things that are of the law of nature, whether properly or by extension, are always uniform; not so are these ceremonies, which were different for the time of another Law.

21. The third member [n.18] is plain, because beyond divine positive right, which is contained in divine Scripture, the Church has established many statutes, both for more honorable observance in morals and for greater reverence in receiving and dispensing the sacraments.

2. Application to the Issue at Hand of what has been Said

a. In the Time of the Law of Nature and of the Mosaic Law

22. To the issue at hand I say that no one is bound by precept of the law of nature to the confession of sin that the question is about, because then this obligation would have existed for the state of any law, which is false because it did not exist in the state of innocence or in the state of the Mosaic Law.

23. If you object, through the gloss [Nicolas of Lyra] on Genesis 3.9 “Adam, where are you?” - it was the speech, the gloss says, “of someone rebuking and seeking after confession [and not of someone who did not know].” So, there was confession in the time of the law of nature after the Fall.

24. Similarly about Aaron and his sons it is read that they had to confess the sins of the sons of Israel [Leviticus 6.25, 7.1, 8.1-2, 14, 16.21], and frequently that he who had sinned in the Law had to confess his sin and offer such or such a sacrifice [Leviticus 4-5, 9.1-15, et al.].

25. There is also confirmation of this, because there are many authorities in the Old Testament about making confession, as this one, Proverbs 18.17, “The just man is the first to accuse himself” [also Joshua 7.19, 3 Kings 8.33, Nehemiah 1.6, 9.2 et al.].

26. Besides, that it is a conclusion following from the principles of the law of nature is proved thus: this proposition is known, ‘every culprit should be judged’; and this one, that ‘no one should be judge in his own cause’; therefore, a culprit should be judged by another. He cannot be judged by another unless he be accused before that other; nor can he be accused save by himself if his sin was secret; therefore, he should accuse himself before the other by whom he will be judged; and it is more agreeable to reason that he do it in secret than in public if his sin be hidden; indeed it is perhaps sufficiently known to natural reason that if sin is hidden the accusation ought to be hidden. Therefore, from propositions known by the law of nature, or at any rate very evidently consonant with the law of nature, it follows that this secret confession of one’s own sin is to be made to another, and then to no one more reasonably than to a priest.

27. I respond to the first one [n.23]: Adam ought not to have hidden his sin from God, because God is the very judge to whom every sin is manifest, in whose presence every culprit should acknowledge his fault. And this confession God required of Adam, which confession Adam not only did not make but he excused his sin by turning it back onto the woman, saying [Genesis 3.12], “The woman whom you gave me etc.” Hence this does not prove that in that law confession should be made to man, though it should be made to God when he rebukes.

28. To the second [n.24]: in the whole Mosaic Law the confession we are speaking of was not made, but confession was made of hidden sins to God only. However, as to certain public failings and the observance of legal rules a confession was made - by each one when he offered sacrifice for such a failing, and by the priests a general confession [Psalm 105.6], “We have sinned, we have done unjustly etc.” And in this way was the public confession of the priest a certain disposition for asking God’s mercy for the people - just as also now in the Church we confess, with the confession we are now speaking of, that we have sinned, and we ask mercy for ourselves and the whole people.

29. To the third [n.25] I say that all the authorities of the Old Testament for proving confession, as we are here speaking of it, are only verbal and not judicial sentence. Of what confession are the authorities speaking then? I say of that general one, the sort that the priests made [Leviticus, 4.1-12, 6.17-23, Numbers 15.25-26, 18.1-7 etc.] and Daniel [Daniel 9.4-19] and many other holy Jews [Exodus, 32.31-32, 2 Chronicles 6.2142 etc.]; or of the confession of their own public failing concerning non-observance of the legal rules, as are the irregularities in contracting the impurities of the Law [Matthew 15.1-20, Mark 7.1-23].

30. As to the argument [n.26], I concede that that proposition [‘every culprit should be judged’] is known by the natural light, or at least is very consonant with a known proposition, for a culprit is to be judged because, if there is one Ruler of the universe and he a just one, no failing is to be left unpunished in the universe- this is naturally known or is very consonant with things naturally known.

31. But further, when you say he is to be judged by another [n.26], I concede it. But who is that other is not known by natural reason, nor even by things consonant with natural reason, save about God only, who is rewarder of merits and punisher of sins. And then further, that another cannot judge unless accusation be made to him, can be denied, because God knows sins without any accusation, even before they are done. Or suppose that this proposition, that ‘a fault should be accused before this Judge and by the sinner himself, for only he himself knows’, be granted as consonant with things known. From all these follows only that sin should be confessed to God. And this confession I concede insofar as it was of the law of nature, that is, consonant with truths known from the law of nature. Because for every state after the Fall, the just, who had about God faith that he was Ruler of the universe and just punisher, were wont, after they had sinned against the law of God, to confess their sins to God, seeking remission of them from him, knowing that without such remission he, as just judge of the sin, would avenge it.

32. And if you argue that he should accuse himself to some other who is his judge, this cannot be proved by what is known to the law of nature nor by what is evidently consonant with it, because no sinner can be judge of a man’s sin save as minister of the supreme Judge. This (namely being a minister of the Judge in judging or punishing what has been committed) is conceded more to each with respect to himself than to one with respect to another. For to each has God committed it that he be minister of God in judging his own sin, by inflicting sadness on himself and displeasure at his sin. But it is not thus known that he has conceded it to anyone to be his minister in executing judgment against another for that other’s sin.

33. If you argue that in a human republic one person is judge of another - I reply: this is true in the case of sins that can become known to him in the court of justice, of which sort are public ones.

b. In the Time of the Gospel Law after Lateran Council IV

34. If the third member [nn.18, 21] be held to, namely that confession falls only under a precept of the Church, it cannot be rejected easily save either because the Church would not have accepted the imposition of so hard a precept on Christian men if it were not a divine precept; or because there is no place found where this precept is imposed by the Church without this being before the time the saints reckoned a precept about confession was obligatory. For if the chapter from Gregory IX, Decretals V tit.38 ch.12, ‘About penances and remissions’, be alleged, it is clear that that chapter is from Innocent III in the [Fourth] Lateran Council [1215 AD].

c. In the Time of the Gospel Law before Lateran Council IV

35. Now before that time, there was for many years, for more than 800 years, the advice of Augustine, and he himself proved that confession is very necessary, as is plain in [Ps. Augustine] On True and False Penitence [in fact Augustine Sermon 392, To the Married, ch.3 n.3, and Expositions on Psalms ps.68 sermon 1 n.19], and certain of his authorities are put in the text [Lombard, Sent. IV d.17 ch.1 nn.8-9] and certain in Gratian [Decretum, p.2 cause 33 q.3, d.5 ch.1, d.6 ch.1]. Nor would a canonist easily find any Council of the Church, or any precept proper, where a precept about making confession, as we are here speaking of it, is expressed.

36. This opinion is held by the glossator, ‘On Penitence’ d.5 at the beginning [Gloss on Gratian’s Decretum, p.2 cause 33 q.3, d.5 ch.1], where, after reciting diverse opinions about the institution of confession, he adds his own saying, “The better statement is that it was instituted by a certain universal tradition of the Church rather than from the authority of the New and Old Testaments.”

37. But, saving his grace, he speaks unreasonably as a canonist. For it would be unseemly for a theologian to say that something is in the Bible and not know where it is found; and so should it to be for a canonist to say that something was instituted by the universal tradition of the Church and not to find it in Canon [Law] if Canon [Law] sufficiently contain the universal traditions of the Church. Now he does not allege any chapter of Canon [Law] for this tradition, but he only afterwards adds that “the tradition of the Church is obligatory” [Gloss on Gratian’s Decretum p.2 cause 33 q.3, d.5 ch.1], and for this he alleges the article ‘In these things’ in d.11 [Gratian, Decretum p.1 d.11 ch.1, “In these things, about which nothing certain has been established by divine Scripture, the custom of the people of God and the institutes of the ancestors are to be held as law”].

38. Again, if this opinion were true, the Pope would not be bound to confess because, as is contained in Boniface VIII Decretals Book Six V tit.12 ch.3, “an equal has no command over an equal.”⁵¹

Again, it would not seem that infidels were bound to the precept about confession, because according to the Apostle I Corinthians 5.12, “For what have I do to judge them that are without?”⁵²

39. However, the glossator hints at an argument for his opinion of this sort: confession is not necessary among the Greeks; but it would be necessary if the precept about it came from the authority of Sacred Scripture [sc. therefore the precept does not come from the authority of Scripture].

40. But the antecedent is not manifest; for just as baptism of water is necessary among them as the first plank (as also for us), so too (as it seems) is penitence, indeed the sacrament of penitence counts as the second plank [cf. supra d.14 n.13].

41. And if the antecedent is proved because there is no custom of confessing among them - I reply: the Greeks omitted many laudable customs after they departed from the Church, and so they could omit this custom, a custom not only laudable but necessary. Nor does the denial of that act introduce a custom. Nor is what he himself takes as antecedent, namely ‘that they are not bound [to confess]’, so known for Greeks but that their not confessing is not known the more.⁵³ And this [sc. the Greeks not confessing] is not expressed anywhere by any doctor who was writing against their other abuses, although however there would have been a noteworthy disagreement with the Roman Church if in this they had disagreed - more noteworthy, to be sure, than their confecting [the Eucharist] in fermented bread, or their using this form of baptizing, ‘may the servant of Christ be baptized etc.’, about which the Latins do not keep silent.

3. The More Reasonable Conclusion is to be Held

42. Briefly, it seems more reasonable to hold to the second member [nn.18, 20], namely that confession falls under a positive divine precept.

43. But then it is necessary to see whether under a precept explicitly in the Gospel immediately from Christ (for it is plain it is not in the Old Law), or explicitly from him in any apostolic doctrine, or neither in this way nor in that but [under a precept] given by Christ and promulgated by the Apostles of the Church following his words.

44. The first of these should more be held if the precept could be evidently got from the Gospel. And one ought not adduce for this the verse of Matthew 16.19, “I will give you the keys of the kingdom of heaven,” because that is only a promise about a future gift. But if anything in the Gospel has force for this it is that passage in John 20.2223, “Receive the Holy Spirit; whose sins you remit etc .”

a. Solution of Others and the Weighing of It

45. From this passage is argument made:

In one way as follows [Hugh of St. Victor, Alexander of Hales, William of Auvergne]: there is given here to the Apostles, and in them to all priests, power to remit sins; not principally, because this is proper to God, therefore ministerially and by arbitration; but they cannot arbitrate in a cause they do not know; therefore the cause they have to arbitrate must be made manifest to them. This making manifest is confession; therefore, by the conferring of the power of arbitration to priests in a cause of sin, sinners are obliged to accuse themselves before priests as before arbiters, which is to confess.

46. Suppose it said that reason does well conclude that the sacrament of penance was instituted by Christ as useful and efficacious, but it does not follow from this that it must necessarily be received as falling under a precept, because extreme unction was instituted by Christ, and the sacrament of confirmation as was said above [Ord. IV d.7 n.18], and yet neither is simply necessary, nor is there a precept about this one or that.

And then to the form of the argument [n.45]: ‘they are arbiters in a cause of sin, therefore others should accuse themselves to them’. Those others, it is true, who want to submit to their judgment, and, if they do submit, those arbiters do indeed have power of judging. But it does not follow that therefore others are bound by necessity of precept to submit to their judgment. An example: let there be four priests, each of whom has authority to absolve this sinner. Each is completely his arbiter as far as power is concerned. But it does not follow that this sinner is bound to submit himself to any of them but only to the one he wants.

This is confirmed by what Christ adds, John 20.23, “Whose sins you retain, they are retained.” But that statement is not precise. For not only are those sins retained by God for penalty that are retained by the priest (because the priest does not retain any sins unless they are in some way revealed to him, though by signs unfitted for penitence), but also those sins that are in no way shown to the priest does God retain for the vengeance of Gehenna. Therefore , this statement too “whose sins you remit, they are remitted” was not precise. Hence to neither affirmative is the negative adjoined that denotes that the remission or retention done by the Apostles is precise with respect to the retention or remission done by God.⁵⁴

47. Although this sort of response [n.46] seem very probable, if from the statement of John “Whose sins you remit etc .” one excludes the idea of precept. However, by excluding this response the point at issue is shown in two ways:

First as follows: judging or arbitrating power is not committed to anyone unless the necessity is imposed on someone of submitting himself to him; but judging or arbitrating is, for you, committed to the priest in a cause of sin; therefore, on someone, as on the guilty party, is imposed the necessity of submitting himself to the priest’s arbitration. -

And the same major [‘judging or arbitrating power is not committed to anyone unless...’] is proved through the following, that no one is judge of anyone in the will of whom (namely him who is to be judged) it lies whether to be judged by this judge or not to be judged by him. For then the judge would have no authority in himself for judging if the other could be judged if he wanted and not judged if he did not want. For to what purpose does the power of judging belong to anyone save to declare the right to him who is bound to obey the right? For only to declare the right by way of punishment, if you like, is not to judge.

But neither is this compelling: for I concede that the arbiter has power not only to determine right in this case but that, from the fact that another submits himself to him, his determination binds or releases him. Not so the determination of anyone who knows the right and does not have judiciary power.⁵⁵

b. Scotus’ own Solution

48. Therefore I argue in another way as follows: whoever has lost the first grace is bound by necessity of precept, and this the precept ‘You shall love the Lord your God etc .’ [Deuteronomy 6.5, Luke 10.27], to do as much as in him lies to recover it, and also by virtue of the precept, ‘You shall love...as yourself’ [Leviticus 19.18, Luke 10.27]. This person has by mortal sin lost the first grace, and he can recover it by receiving the sacrament of penitence from the arbiter, because this was instituted as efficacious remedy for recovering the first grace, from the statement of John 20.23, ‘Whose sins you remit etc.’ And thus does the necessity of the precept of confession arise or follow, not from the statement precisely ‘whose sins you remit etc.,’ but from this statement joined together with the precept, ‘You shall love the Lord your God etc.’

49. If you say that the major is true, that bound one is to some way by which one could recover grace, but not to this way determinately if another be possible; but as it is, although receiving the sacrament of penitence is a useful way, yet there is no proof that it is for recovering that precise grace - against this:

No other way is as easy and as certain. For nothing is necessary here save not putting up an obstacle to grace, which is much less than to have some contrition that, by way of merit by congruity, would suffice for justification, as was said above in d.14 [nn.136-144]. For someone can be more certain that he is not putting up an obstacle than that he has sufficient contrition, as it were, by way of merit by congruity, because he can probably know that he is now not actually sinning with interior or exterior sin, and that he intends to receive what the Church intends to confer in the sacrament. He cannot thus know that he has contrition sufficient, as merit by congruity, for justification. I accept then this major: where a way is easier, that is, more in the power of man, and more certain for receiving grace, everyone is bound to that way, so that, if he omit it, let him not attempt another more difficult and more uncertain way, because then he would expose himself to the peril of his own salvation, and would seem to be despising his own salvation. But the way of receiving the sacrament of penitence is more possible for man and more certain for recovering the first grace. Therefore , from that by which this way gets its efficacy, from the precept both of love of God and of neighbor and oneself, one is bound to this way.

50. This reason, if it prove that the precept of confession is got from the Gospel from the statement ‘Whose sins you remit etc .’ and from ‘You shall love the Lord your God etc.’, it is indeed well. But if not, it proves at least this, that a precept of God about making confession is very reasonable for a multitude, because although some person could have some special remedy yet about this remedy, because it is more possible and more certain for a community, it was more reasonable for a precept to be given, and given to everyone in the community - just as was said above about baptism [Ord. IV d.4 nn.126-129], that although one may have baptism of desire without baptism of water, yet because baptism of water is an easier remedy, it is therefore certain that a precept about it for the whole community is very reasonable. And so I will at least get that a precept about generally making confession would have been very reasonably given.

51. But if you altogether insist that, for reasons set down in this member [nn. 4245, 47-50], there is no proof from the words of the Gospel that a precept was given, shall we really say the second thing, that this precept is got from the words of some Apostle?

52. It is said that we shall [Hugh of St. Victor, Alexander of Hales, William of Milton, Richard of Middleton], taking it from the words of James 5.16, “Confess your sins one to another etc.”

53. But from this it seems to me neither that James gave that precept, nor that he promulgated a precept given by Christ.

54. Not the first [n.53], for whence came his authority to obligate the whole Church, since he was only bishop of the Church of Jerusalem? Unless you say that the Church of Jerusalem was the principal Church and, consequently, its Bishop was the principal Patriarch, which the Romans would not concede - and not because, properly for the time, that authority was taken away from that Church.

55. Not the second [n.53], because when the Apostles were making public in their writings the precepts of the Lord, they used a mode of speaking by which it could be known that they were heralds of Christ, as is plain from the statement in I Corinthians

7.10 - that when Paul wants to make public the Lord’s precept about not dismissing one’s wife, he says, “To those who are joined in matrimony I command, yet not I, but the Lord.” But when he wants to impart his own conviction about a man who is a convert to the faith living together with an unbelieving wife, or conversely, because this, without insult to Christ, is permitted but not necessary, he says [ibid. 12], “I speak, not the Lord.” Otherwise, unless from what preceded or what followed he made it manifest that he was herald in that proclamation, the Church could not be certain that he was making the precept public as herald.

56. Both points [n.53] are also jointly proved by James’s own annexed words [n.52]; for by saying “confess.. .one to another” James is no more saying that confession is to be made to a priest than to anyone else; for he adds immediately, “and pray for one another so that you may be saved,” where no one would say that he had instituted or promulgated a divine precept. But his intention, as in the words ‘Confess one to another’, is to urge to humility, namely so that we may generally confess among our neighbors, according to the verse from the first canonical letter of John 1.8, “If we say we have no sin, we deceive ourselves.” So, by the second remark [“and pray for one another so that you may be saved”], James is urging to fraternal charity, namely that through fraternal charity we come to each other’s aid. This verse, then, does not appear to be about a divine right promulgated by Apostolic Scripture.

57. So either the first member is to be held [nn.42-43], namely that the precept is one of divine right promulgated through the Gospel, as is set out in the second member [nn.18, 20]. Or if that not suffice, the third member must be asserted [nn.18, 21], that it is a precept of positive divine right promulgated by Christ to the Apostles but promulgated to the Church, without any Scripture, by the Apostles; just as the Church also maintains many other things that were promulgated orally by the Apostles without Scripture, the foundation of which is that verse of John 20.30 (cf. 21.25), “Many other signs truly did Jesus do etc.”, and it is contained in Gregory IX Decretals III tit.41 ch.6 [“Certainly many of the Lord’s words and deeds we find to have been omitted by the Evangelists, which the Apostles, it is read, supplied in word or expressed in deed.”]

B. What the Precept about Confession Includes

58. About the second article [n.17] I say that the precept includes ‘who’ should confess [cf. supra d.15 n.163], that an adult should, that is, someone possessing the use of reason and knowing the sin he has committed. By him who is an ‘adult’ I do not mean that he is of this many or that many years but that he have age enough to know the just and the unjust against the Law of God. For in many people, before the accustomed age, “malice supplies for age” [Code of Justinian II ch.32 n.3], and not in the bad only, as the common words say (because, perhaps, he more quickly has a prudence for evil, hence is he also called ‘guile-capable’), but also in the good, according to the remark in the legend of Blessed Agnes, “Faith is not counted in years etc.” [Ps.-Ambrose, Epistle to Holy Virgins n.6: “infancy indeed was counted in her years, but maturity of mind in her morals”].

59. And of this the rule, in brief, is that he should be judged adult who, having been instructed and questioned in orderled manner, distinctly perceives what is just and what unjust in the Divine Law. And this can be seen if he respond in ordered manner to ordered questions the way someone else perfectly adult from the like premises would respond.

60. The precept [n.58] also includes ‘what’ should be confessed, that mortal sin should be. And it does not include anything else, for by venial sin is no one in peril outside the ship of the Church, because venial sin stands along with perfect charity, which is the saving ship. And so, from the first institution of penitence as the second plank, no one needs to have recourse to it for remedy against venial sin but only against mortal sin.

61. But which mortal sin?

I say every mortal sin that there is memory of, and this after prefacing diligent inquisition according to the capacity of human weakness. And I mean: as much inquisition as one might impose, or perhaps could impose, concerning something very hard that would be much on one’s heart - that much should one impose as to all mortal sins that need to be brought back to memory; and those that are brought back to memory should be confessed to the same priest without dividing the confession up. For, as [Ps.-]Augustine says On True and False Penitence, and it is in the text [Lombard, Sent. IV d.16 ch.2 n.5], “Some hide from one what they keep to make manifest to another, which is to praise oneself and to tend toward hypocrisy and always to lack the pardon which they hope to reach piece by piece.”

62. But an objection against this is that it then seems that every sinner is bound to state all his sins to anyone who questions him; otherwise, by keeping quiet about them or some of them, he would be a hypocrite, because showing himself to be more innocent than he is.

63. I say that by keeping silent before him to whom I should not speak I do not show myself innocent in the things I am silent about. But I do to him to whom I should speak and when I should speak, just as, by keeping quiet about something in confession while confessing something else, I show myself innocent in what I am silent about, and in this there is hypocrisy; not in the other case.

64. And not only does the aforesaid precept include sins but all the circumstances of sins, notably the aggravating ones, according to the remark of Ps.-Augustine in the place above [n.61, ch.14 n.29], “Let him consider the quality of the crime in place, in time, in perseverance, in variety of person etc .” At any rate, it includes, I say, those aggravating circumstances and those necessarily in need of being confessed that are prohibited by a special prohibition, as that to take what is another’s is illicit and prohibited. But by a special prohibition is it prohibited to take from a holy place, and therefore the special sin of sacrilege is constituted by this circumstance. Likewise it is illicit and prohibited to know a woman not one’s own but, if she be a close relative, it is prohibited by a special prohibition, and therefore is a special sin, namely incest, constituted by this circumstance. Frequency too is a circumstance, there is no doubt, that simply posits another sin, because a new sin is committed on each occasion; and about like things there is a like judgment. There are also many circumstances by which a sin is in some way more serious (as that if the temptation is a minor one), and this too either on the part of the object or on the part of the person sinning, about which it is not so certain that they need to be confessed, but it is safe and useful to do so. But as to other circumstances that are nothing to the purpose, as those without which there would be as much gravity as there would be with some other impertinent circumstance, it is fatuous to confess them, as if someone has sinned with some woman called Alicia or Agnes or the like.

65. This precept also includes ‘to whom’ confession should be made, that it should be to a priest; for he alone has the authority of binding and loosing, as will be said in d.19 [dd.18-19, n.52], and to a priest who has jurisdiction, because a sentence not passed by its judge is null.

66. The precept contains also ‘when’, that it should be whenever one is in danger of death. For everyone, when judgment of damnation or mercy is imminent, should prepare himself for mercy as much as he can. But this is not only to be done in a terminal illness but also when arduous actions are being undertaken wherein it is likely that death threatens, as in mortal combat and shipwreck and the like. And when he wants to undertake other acts to which a special reverence is due, as when he wants to receive communion, because as was said above in d.9 [Ord. IV d.9 nn.15-18], when one has the opportunity of a confessor, no one should receive communion without confession; and about similar cases the judgment is similar.

67. It also contains ‘how’, because confession should be with displeasure at the sin committed, and with the purpose of abstaining from sin and obligating oneself to the Church to make satisfaction for such sin, meaning not that one must want to accept the penitence from the priest, because if one wanted to accept no penitence offered to one by a priest and yet one had the two conditions proposed here [sc. abstaining from sin and obligating himself to the Church for satisfaction], and the purpose of receiving the penitence to be inflicted on oneself by God here or in purgatory, such a person, I say, is rather to be absolved than repulsed, as was said above in d.15 q.1 [nn.50-51].

68. But if one accept some satisfaction imposed on one by the Church, one is bound to keep to it. And one ought to have the purpose to confess in due manner, namely that one should wish to obey the confessor in keeping the satisfaction imposed by him that one has voluntarily received.

69. If against this be argued what was said in this article, namely which sins are to be confessed, that all mortal ones are [nn.60-61], because it was said above, d.15 q.1 [n.53], that someone can pay the penalty due for one sin without paying the penalty for another, indeed by remaining in the other sin; therefore, by similarity, he can pay the confession due to one sin without paying the confession due to another - I reply: it was said there that he who has truly been once absolved from all his sins can pay the exterior penalty imposed on him whether he is in charity or in mortal sin. And let it be that he pay it in mortal sin; he is not bound to pay it again either here or in purgatory or in hell [ibid. nn.55-58].

70. If someone is never truly absolved from the sin, say because when he ought to be absolved he puts an obstacle in the way, of which sort this hypocrite is who is putting obstacles in the way, then he is bound to pay whatever sort of exterior penalty he pay or satisfy.

71. And the reason is that an eternal penalty must first be commuted to a temporal one before any temporal penalty be any sort of payment for the fault. But when the hypocrite here confesses, the penalty is not commuted, because neither is he absolved from his fault; but it is commuted when he does truly repent once, although afterward he back-slide in some way or other. For he was at some time just and was not a debtor to an eternal penalty for sins previously committed. But this hypocrite remains always debtor to eternal penalty for sins previously committed; and he also becomes debtor again to a new penalty for a new sin he has committed here.

C. What has Been Articulated Further about the Precept of Confession by Precept of the Church

72. About the third article [nn.17, 21] I say that the Church has specified this precept as to some of the things aforesaid and has not specified it as to others. The chief specification of this precept is found in Gregory IX, Decretals V tit.38 ch.12 [“Let all the faithful of both sexes, when they have come to years of discretion, faithfully confess alone all their sins to their proper priest at least once a year.. .receiving reverently at least at Easter the sacrament of the Eucharist, unless perhaps on the advice of their own priest they judge that for some reasonable cause they should for a time abstain from this sort of receiving.”]

73. As to the ‘who’ the Church has specified that it is the adult sinner “after he has come to years of discretion etc.,” which is nothing other than the adult according to the understanding assigned before [n.58].

74. As to the ‘what’, sinner and adult: some say [Richard of Middleton, Sent. IV d.17 princ.2 q.4, d.16 princ.5 q.1] that if he have mortal sins he is bound to the confession precisely of them and not of venial sins; but if he have only venial sins, he is in that case, because of the precept of the Church, bound to the confession of them.

75. This I do not understand, because since in the chapter is said “all their sins,” the distribution of ‘all’ to cover venial sins is either made there or it is not. If it is, then he who has mortal sins is bound by virtue of this precept to confession of venial sins; if it is not, then he who does not have mortal sins but only venial ones is not bound to confession of them, because venial sins simply do not fall under the “all their sins” that is there stated. Hence, when positing the same understanding for the words “all their sins”, it seems a contradiction to say that this person is obliged to confess venial sins and this one not.

76. Again, suppose someone has lived without mortal sin up to the middle of Lent. If he were then to confess so as to keep the precept of the Church, he would, for you, be bound to confess venial sins, because he only has those ones. Let him on that day sin mortally. If he want to fulfill the precept of the Church about confession, he is, for you, not bound to confess the venial sins he had before; therefore by commission of a mortal sin he is absolved from that obligation, which seems irrational.

77. I say, therefore, that, as far as I grasp it from the general statutes of the Church, no one is bound to confession of venial sins in any case at all. Nor has the Church made the precept about confession specific on this point; and reasonably, because the Church uses the sacrament of penitence as the second plank after shipwreck, which there is no need of in the case of venial sins.

78. Nor is anyone bound to any contrition for venial sins; nay rather, someone dying in an actual will or act of venial sin will be saved. Nor does it seem that anyone is bound to the second part of contrition (which is confession) as to a sin as to which he is not bound to have contrition or attrition. This is plain too from something else, that (as was said above, [d.14, nn.149-150]) venial sins are sometimes deleted as to guilt and penalty without any special work, as by some fervent act of contemplation of God - just as a drop of water is at once consumed by a strong flame.

79. If you ask how then will a priest know the face of his flock if he who says he has lived innocently is not bound to confess his venial sins? - I reply: if confession were made to the priest and only venial sins were confessed, how would the priest know that the penitent had not done any sins save venial ones only? From nothing save from his confession. Hence Gregory IX Decretals I tit.31 ch.6 [actually from Henry of Ghent, Quodlibet VII q.24], “Someone confessing penitentially is to be believed in everything, because it is not likely that anyone not be mindful of their own salvation.” Therefore if in the same way the priest believe him who comes to him and says, “Sir, I give thanks to God that from when I last confessed I am not conscious of any mortal sin; give me the Eucharist,” the priest has in this penitence only as much knowledge of the face of his flock as if the penitent had narrated his venial sins for two days. Nor could the priest have any certitude about the penitent’s proper venial sins other than he has now about his innocence, namely through his proper testimony.

80. Therefore the Church does not specify the precept about the ‘what’.

81. But as to the ‘to whom’, the Church seems to specify this by saying: ‘to the proper priest’. For there do not seem, from the Church’s first institution, to have been distinct proper priests. For, when the Apostles were going here and there preaching the word of God, this Apostle was then priest of one person, now of another, and now this Apostle was and then that one was; but afterwards are dioceses and parishes and priests in parishes distinct. However, for that time, those can be said to be proper priests who have ordinary or delegated jurisdiction, or only those who having ordinary distinction in contrast to the delegated ones, or rather only those who have immediate and proximate ordinary jurisdiction.

82. According to these understandings, there can be disputes today between delegates and ordinaries about the understanding of this chapter [n.72], if indeed proximate and inferior ordinaries do not dispute against superiors in order to be themselves alone, and no others, the proper ones (for curates do not dare to resist bishops as easily as to resist the privileged poor).

But if the force of the word ‘proper priest’ is considered, namely he alone and no other, or proper to this person and not to another - in neither way is anyone obliged to confess to his proper priest, because if many are equally in charge of some parishioner, each absolves equally; also the same priest absolves equally many parishioners; therefore the word is understood of someone having jurisdiction for immediate absolution of him.

83. And the precept on this point is not made specific because it was about ‘to whom’ in general, namely to a priest having jurisdiction. And if anyone could delegate to one person the immediate jurisdiction that another ordinarily has (which they themselves do not deny the Pope can do), then according to this understanding a delegate can become proper. Therefore the ‘to the proper priest’ does not specify the ‘to whom’ as this is included in the first precept, unless it be said that in the primitive Church any priest had jurisdiction over any penitent, and that now individual penitents are made determinate as subjects to individual priests. And at that time any priest was proper to anyone at all, in this way namely, because possessing ordinary jurisdiction over anyone; but not proper as proper is now, that is as determinate to him or his parish. But this properness bestows no special power on a proper priest that this priest would not have had but only limits some (people) to some (pirests).

84. If, however, you ask whether, by the force of the first precept and the explication of it, that it is licit, as far as this article ‘to whom’ is concerned, to confess to a layman (the Master seems to say yes to this in the text, and he sets down authorities on his side [Lombard, Sent. IV d.17 ch.4 nn.3-8; also Gratian, Decretum p.2 cause 33 q.3, d.6 ch.1; see n.35 supra ]) - I reply: such a confession can be a matter for shame, which is one penalty due to sin, and when confessing in this way he does pay a penalty that he would be paying if here were to confess to a priest. But if accusation is made by precept for this purpose, and not for any purpose other than that a sentence may follow (and a layman has no authority for passing sentence in that forum), it follows that there is no precept about accusing oneself to a layman. And perhaps it would be more useful not to accuse oneself before him, if one could have equal shame before oneself thinking over the same sins, and thus be equally punished.

85. Someone might say that it is necessary not to confess to a layman, because no one should defame himself nor betray his secret sin, especially when he to whom he betrays it is not presumed to be a keeper of a secret; nor can he better advise him than he can advise himself. For perhaps for getting advice it would be licit for someone to reveal his sin to a more discreet layman.

86. But this is not clear, because advice could be sought by positing the case about someone universally, without revelation of his own sin.

87. What then about condemned malefactors confessing to laymen?

I reply: their simplicity excuses them, nor in this do they sin; and their humility is meritorious for them to the extent they want to supply, as they can, that which belongs to the sacrament of penitence. But for a discreet man, who would well know what confession was instituted for, it would neither perhaps be useful nor, without chance??, necessary to make such a confession.

88. The Church has as to ‘when’ determined the precept, namely ‘once in a year’; and this ‘once’ seems to be at least around Easter, at which time, according to the chapter [n.72], every Christian ought to receive communion, “unless^”

89. If you say that this specification is a relaxation, because they were bound before [sc. the time of the Apostles, n.81] to confess as soon as they had the opportunity for a confessor, but now [sc. since Gregory IX, n.72] they are not bound until Lent - I reply: both points are a source of doubt for some people; certain of them [William of Auvergne, William of Auxerre] saying that both then and now, as soon as one has opportunity of a confessor, one has obligation to confess; certain of them [Richard of Middleton, Bonaventure] saying that neither at that time [was their obligation] but only to intend to confess at some time before death, nor now, but to have in one’s intention to confess, save once in a year [sc. when one must have more than intention and actually confess]. The second [sc. the situation now] seems of greater weight, because ‘penal precepts are not to be amplified but restricted’ [Boniface VIII, Decretals book Six, V tit. 42, reg.15]. And when the affirmative precept binds or obligates is not found save as to ‘sometime’, and the ‘when’, before the specification of the Church, was indeterminate to any ‘when’ before death; after the specification it was indeterminate as to any single ‘when’ in a year. However, it is necessary to have the will to confess at the time when the precept obligates [sc. before death then and during Lent now] - I mean this simply in this way, that one is never unwilling.

II. To the Initial Arguments

90. To the first one [n.3] it can be said that the sacrament of penitence was not instituted at the time of Peter’s denial, but after the resurrection when Christ said to his disciples, “Receive the Holy Spirit etc.” [John 20.22]. And so Peter was at that time not bound to confession. Nor was he bound to it after the institution of the sacrament, because his sin was destroyed already before the resurrection by another remedy.

91. And reply can in a similar way be made about the unfaithfulness of all the disciples during the passion of Christ, that they were themselves not bound to confession because they repented after the resurrection before the institution of the sacrament of penitence. This well confirms that confession was not in the law of nature nor in the Mosaic Law.

92. But as to the words of Ambrose, “Tears wash away etc.” [n.3], these are not to be so understood that without confession in act or habit transgression is washed away; but contrition can be so great that in it even before confession is the transgression washed away, which transgression, however, is so grave because subsequent confession of it is shameful.

93. To the authorities from Cassiodorus and Augustine on the verse of the Psalm, “I said, I will confess” [nn.4-5; 6-7], I say that this confession has purpose or promise of confession to follow, and thus sin is not deleted without purpose of confessing. This is plain from the end of the authority from Cassiodorus, where he adds, “the wish is judged for the deed,” as if he were to say that the intention, that is, the will to make confession, is judged as the future confession. Nor does it follow from this that the sin is deleted as to due penalty without future confession, because this confession is one penalty and if it is not paid here, though yet there be a will to pay it, it will be paid elsewhere. But if there is no will to pay it, one is already turning back from true penitence and is sinning mortally, as was said above [Ord. IV d.4 nn.128-129] about someone baptized with the baptism of desire who afterwards disdains baptism of water.

94. To the first argument [n.8] I say that all the ceremonies both of the Old Law and of the New are reduced to some precept of the Decalogue, and can be reduced to the precept “Here, O Israel, the Lord your God is one God” [Deuteronomy 6.4, Mark 12.29], or to the verse, “Remember the Sabbath Day to keep it holy” [Exodus 20.8]. For whether we say it is through the first or through the second commandment that God has commanded that he is to be honored as God, it follows that these ceremonies, by which he wishes to be worshipped, fall under the relevant precept as a conclusion under premises.

95. If you argue against this that then these ceremonies would belong to the law of nature because the precept under which they are said to fall belongs to the law of nature -I say that from the major about the law of nature and the minor about the positive law there follows only a conclusion of positive law. The major is this, ‘God is to be worshipped,’ and this belongs to the law of nature, or is at any rate very consonant with the law of nature. The minor is ‘thus to worship him belongs merely to positive law’, for it varies for different times. The conclusion, ‘therefore God is to be thus worshipped’, belongs merely to the positive law, because a conclusion always follows the condition of the more imperfect premise.

96. To the next [n.9], it is said [Aquinas, Sent. IV d.17 q.3 a.4 ad 2] that such a person should confess through an interpreter, or through some signs, other than words, which can be known to a priest.

97. The second [‘through some signs, other than words’] is to be conceded well enough, if any such signs be common to the dumb or barbarian penitent and to the priest. But the first [‘through an interpreter’] does not seem necessary, because this forum [of confession] by its nature is very secret; therefore no one is bound to this forum that is in any way public. But although the interpreter wish and be bound as the priest is, yet he and the priest, if they want to be malicious, can be witnesses against the accused, and thus the accusation, from the nature of the accusation,⁵⁶ can come to public notice, and so it is not penitential.

98. From this it is plain that confession is necessarily not to be made to several priests together so that they may make a better judgment; because if this be done it is not a sacramental confession. But most of all does it seem that confession should not be made through an interpreter when there is fear that no secret place is suitable. And in such a case this [penitent] has no possibility of confessing to a suitable man. Let him therefore confess to God, with purpose of confessing to a man when opportunity is offered.

99. As to the next [n.10], it seems that sometimes confession is to be made in writing, as is read of [Theodore] the Bishop of Canterbury who, for absolution, sent it to the Curia [Poenitentiale I chs.4 n.5].

100. But this seems to be against the idea of confession, because all writing is naturally of the sort to be public by its very nature. For however much someone may keep secretly with himself what he has written, yet from when he sends it, whether by messenger or by him to whom it is sent, it can be made public, and it is of its nature always wide open, saying what is contained in it to any reader of it.

101. Anyone, then, who writes something does, in this respect, what is contrary to the nature of a sign suitable in confession. And in a piece of writing shame is taken way, which is a great penalty, and this unless the one confessing is present at the same time that the confession through writing is made. And therefore what is said in Gratian, Decretum, with Glosses, p.2 cause 30 q.5 ch.4, that someone can confess through writing, is given the exposition ‘when the one who confesses is present, because he cannot do it licitly when absent’, by Jerome [actually Ps.-Augustine, On True and False Penitence ch.10 n.26; in Lombard, Sent. IV d.17 ch.3 n.4]. Therefore, let him who is absent wait until he is present (having the intention to confess when there is opportunity).

102. To the final one [n.11] I say that someone innocent of mortal and venial sin is simply bound not to confess; hence if the Blessed Virgin had confessed to Blessed Peter after the Ascension, she, by confessing, would have sinned. But if one is innocent only of mortal sin and not of venial, one can confess venial sins, and not confess them, as was said in the third article about ‘what’ [nn.71-80]. Nor is it incredible that there are many in the Church of this sort who for a whole year live without mortal sin; indeed, by the grace of God, many keep themselves without mortal sin for a long time and perform many works of perfection, of whose merits the treasury of the Church is composed.

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