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.The affirmatives are ‘whose sins you remit, are remitted’ and ‘whose sins you retain, are retained’, and the corresponding negatives are ‘whose sins you do not remit, are not remitted’ and ‘whose sins you do not retain, are not retained’. But neither of these negatives is simply true, because sins that the confessing penitent does not reveal to the priest are neither remitted nor retained by the priest, and from this follows nothing about their remission or retention before 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.That is, from the mere fact that priests do in fact know or determine the right, and do also bind and loose penitents who submit to them, it does not follow that the faithful are obliged to confess to them. For unless priests have judiciary power in addition, no one is bound to submit to them or to follow their determinations. 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.”]