Question IV: On the penalties of simoniacs

DEALING WITH EACH SPECIES OF SIMONY.

SIMONY merely mental incurs no penalty, except the eternal one before God; this is the common opinion of Valencia at point 6, who adds that this is true even if the mental simony proceeds to the exterior act of giving and receiving; it is clear from the chapter Mandato, which is the last outside the title on Simony, against Adrian, quodl. 9, Soto, book 9, de Iustitia, question 8, article 1, Aragon, question 100, article 6, who say that such a simoniac is bound to restitution: For neither the temporal thing acquired by it must be restored, nor the acquired benefice resigned, unless perhaps it is clear that that temporal thing was given only reluctantly, to buy off harassment, as Tannerus also notes, n. 44, Bassaeus, at the place cited.

CONVENTIONAL simony obliges first to restitution, whether temporal or spiritual, provided that it can be restored, as with a benefice; for a Sacrament cannot be restored, as D. Bonaventure notes, book 4, dist. 25, question 4.

IT IS PROVED. For every simoniacal contract, whether conventional or real, is null, at least by positive law: chapter Presbyter; chapter Si quis Episcopus, book 1, question 1; chapter de hoc; chapter Adrianus, on Simony, as the Saintly Doctor reports in the confessional, chapter 5; and the extravaganza Detestabile, under the same title.

It is likewise PROBABLE, says Tanner, num. 86, that no conventional simony, except that called simony of confidence, induces by that very fact any penalties of positive law. The same is held by Navarre, n. 104, Covarruvias, on the Clementine Si furiosus, part 1, §. 1, Lessius, book 2, chapter 35, doubt 27, although Soto and Cajetan said the contrary.

Now there is simony of confidence, when someone, upon whom an ecclesiastical benefice is conferred, or who resigns one, or whom one presents or elects for it, or who in any way promotes the matter so that one of the aforesaid may be done, at least tacitly bargains (for without a pact, at least tacit, simony does not occur, as after Navarre num. 107 Lessius says, doubt 16, num. 95, Tannerus 96) that the same benefice be resigned to himself or to another, or that a pension from it, or its fruits, or a part of them, be granted to the other.

LIKWISE, if you admit some right of access, regress, or ingress. The Prelate procures access to a benefice who, wishing a benefice for another, say a nephew, gives him a right, but meanwhile confers it on a stranger until the nephew comes to a suitable age, at which, on arriving, he may approach the benefice by his own authority. He has regress if he resigns the benefice with the right of receiving it back, should that one predecease him, or become a Bishop, or should he not pay the pension. Ingress is said to belong to one who, before taking possession of the benefice, resigns it to another, retaining the right of approaching it, should that one predecease him, or be made Bishop, or become a religious. These retrocessions the Council of Trent reproves, session 25, chapter 7.

THIS simony entails for the contracting parties papal anathema; Second, deprivation of the benefice; Third, deprivation of other benefices previously obtained; Fourth, unfitness for all benefices; Fifth, the conferment of such a benefice, simoniacally conferred, is reserved to the Pope alone. So Pius V, extravaganza Intolerabili. See Navarre, num. 100.

TO undergo these penalties it is required that the benefice be accepted, as Lessius warns, book 2, c. 35, dub. 26, Filliucius, tract. 45, chapter 13, question 5, Suarez, chapter 43, num. 13, and others.

NOTE that this simony, forbidden only by ecclesiastical law, alone induces by that very fact the penalties of positive law. But if the pact is afterwards fulfilled, the penalties are drawn back to the time of the pact. Some, however, concede this only in the forum of conscience alone, as Navarre, c. 25, num. 104, Henriquez, de excom. chapter 19. Likewise, that it holds only after sentence, Lessius teaches, at the place cited, Sanchez, book 9, de matrim. disp. 30.

Take note also that these unfitnesses are incurred even when examiners take something from the examination for parishes from those to be examined, as Lessius notes, chapter 34, dub. 26 and 27.

REAL simony in sacred orders incurs these penalties. First, the ordainer is excommunicated. Second, suspended from conferring any orders, even first tonsure. Third, suspended from every pontifical act. Fourth, interdicted from entering the Church. Fifth, if he still acts against these, he is suspended from the administration of his Church and from receiving all the fruits of benefices. Sixth, he can be absolved by the Roman Pontiff alone, even if the offense is occult, Extravaganza Cum detestabile, Sixtus V. See Lessius, book 2, chapter 35, dub. 24.

WHOEVER has received an order in this way: First, he is excommunicated by that very fact. Second, suspended from the exercise of his orders. Third, if he ministers, he becomes irregular. Then, by the Bull of Sixtus, he is by that very fact deprived of all dignities and benefices, and becomes unfit for them. Fourth, absolution and dispensation are reserved to the Pope; but if the case is occult, setting aside the Bull of Sixtus, the Bishop could dispense and absolve, from the Council of Trent. See Diana, part 4, tract. 4, resol. 157.

WHOEVER confers or procures a benefice for another by real simony, by electing, presenting, postulating, or instituting, is by that very fact excommunicated. Under the name of benefice understand an Abbey, Priory, Rectorship, Guardianship, Provincialate, Generalate, etc., as Portel teaches, V. Simonia, Suarez, tract. 5, disp. 52, sect. 4, Sigismund of Bologna, part 2, chapter 1, disp. 55, Diana, at the place cited, resol. 156, Bassaeus, V. Simonia 6, num. 2. Others, however, restrict the name of benefice, since in an odious matter, to benefices with revenue. So Azor, part 3, book 12, chapter 21, question 6, Bonacina, disp. 1, question 7, §. 2, and others, who thus approach a benefice: First, he is by that very fact excommunicated; Second, such a conferment is null and bestows no right; nevertheless, if the simony was committed for an institution, the election is not void. Third, he becomes unfit for that same benefice, and even if the simony is public and brought to the external forum, only the Pope can by law render him fit again. But if it is occult, some hold that it is removed by the Bishop. That it can be taken away also by the mendicant confessors, Croufers teaches, ad c. 7. Reg. min. sect. 28, Bassaeus, V. Simon. 6, num. 2.

REAL simony concerning entrance into religion: First, it induces anathema. Second, suspension of the convent or Chapter, if they consented. Third, the admitted are unfit for the monastery. Yet these penalties are incurred with the profession following, but not if the simony is retracted before it, so Filliucius, chapter 13, Reginald, book 23, n. 173, Suarez, chapter 56, num. 7, Bassaeus, at the place cited, num. 3.

NOTE that by the common opinion, the excommunication inflicted against simoniacs in an order or benefice is incurred also on account of a simony forbidden by human law alone, as in the permutation of a benefice without the authority of a superior, the reservation of a pension without the authority of the Pope, etc. So the Doctors in Bassaeus. Yet others teach the opposite, with Diana, part 4, tract. 4, resol. 155. See Tanner, num. 95.

THAT every simony can be absolved by the confessors of the Mendicants, our Croufers teaches, lecture 28, because the Popes after Sixtus, who made the reservation, say that he who can absolve from heresy can also absolve from any reserved cases.

SOME add that the penalties established by law have their place in the Sacrament of order, and in benefices, and entrance into Religion: wherefore, they say, they are not incurred in conferring other Sacraments, in consecrations, dispensations, and in the selling of a pension, just as not in the permutation mentioned above, because no law expresses it: so Tannerus. But only the Pope can dispense a simoniacal benefice-holder who acts knowingly.

RESTITUTION also presses upon one who has accepted simoniacally. So the Doctors, with D. Bonaventure, in book 4, at the place cited.

What is accepted for a spiritual thing must be restored by divine law, even if the spiritual thing has not been handed over. That this restitution is to be made to the one who handed it over, some teach, in Bassaeus, 7, from the chapter Veniens, on Simony, before the judge's sentence.

YET the true opinion is that it must be restored to the Church. So D. Thomas, question 100, article 6, ad 4, and question 32, article 7, and all the Doctors before Soto, with D. Bonaventure. The Canonists, to support this opinion, cite the chapters, de hoc; and cap. Audivimus, de sim.

At the chapter Veniens, I say that in that case he gave without fault. Hence Valencia and others do not rightly say that the dominion over the temporal thing is not primary dominion, but only over the spiritual. Certainly each, acting in bad faith, is equal.

IF the benefice has already been handed over, and the simony is completed on both sides, some, with Soto, teach that it must be restored to the giver before the sentence, but after it to the Church.

YET the true opinion, as I said, is that it must be restored even before the sentence. So D. Thomas above, and D. Bonaventure.

A PRICE accepted simoniacally, but not unjustly, is not subject to restitution by natural divine law, because restitution is owed to violated justice; but simony is irreligion.

BUT a price accepted for a spiritual thing is against justice: therefore he is bound, although Navarre, n. 103, Sylvester, question 20, Cajetan, V. simon., say he is not bound to restore.

A SPIRITUAL thing, simoniacally acquired, is not by divine law to be given up; say, a benefice. So commonly in Bassaeus, 7, num. 3.

By ecclesiastical law, however, a spiritual thing is not to be restored unless it is an ecclesiastical benefice. But other spiritual things either cannot be given up, as the Sacraments, except as to use, as in Orders, as the Saintly Doctor says above, or are not to be given up before the sentence.

NEVERTHELESS, as to the price, it must be restored by positive law.

NOTE also that the fruits are to be restored either to the Church, or to the Apostolic treasury, or to pious uses; or to the successor, where there is use, of the fruits of the vacant benefice given to this one, Lessius, num. 174, Tannerus, 92, and others.

ALSO, whoever in good faith acquired for himself something from another who obtained it simoniacally is bound to restitution (except fruits consumed in good faith), from D. Thomas, ad 3.

THEY EXCEPT the case where that one, out of malice, burdened him with these goods, so that he would be forced to restore; for then the law did not oblige.