Case XIX: Suspension Incurred by the Very Fact

Some years ago a certain priest gave considerable scandal by drinking. He was called to headquarters, and well knowing the gravity of his offense and not waiting to be asked, he resigned his parish. With the consent of the ordinary and with a good celebret from the Vicar-General, he went on a vacation. On his return the ordinary assigned him to another parish, but before doing so he obliged him to sign a paper to the effect that, should he drink again, he would be ipso facto suspended ab ordine et jurisdictione. The priest has faithfully observed his promise. Now the points I would wish you to consider are:

1. The priest’s faculties were not withdrawn when he resigned his parish and, of course, were not restored when he was assigned to another parish. Would that fact in any way affect the ordinary’s ruling?

2. What probability has the opinion which says that the power of the ordinary in such cases is limited to his diocese and therefore does not bind a priest when outside the diocese?

3. Has the Vicar-General power to give this priest permission, when on vacation, to ignore his promise to the ordinary, with the understanding that on his return his promise to the ordinary would again be in full force?

Answer.—1. The fact that this priest’s faculties were not taken away from him when he resigned his parish and were not, therefore, restored when he received a new appointment, since he already possessed them, in no wise affects the bishop’s ruling in this case. The bishop simply added a condition to the faculties of the priest, namely, that the faculties were withdrawn ipso facto upon indulgence in intoxicating drink. This condition the bishop had a perfect right to add, and thereupon the faculties which before were absolute, now become conditional. To add the condition, it was not necessary to withdraw the original faculties. The bishop may at any time make the retention of faculties by any priest in his diocese conditional, for a sufficient reason. The bishop is the judge of the sufficiency of the reason. The priest, while acquiescing in it, may appeal to a higher tribunal.

2. What probability has the opinion which says that the power of a bishop in this case is limited to the diocese, and therefore does not bind a priest outside the diocese? The opinion has practically no probability. Ballerini-Palmieri says of it: “We shall conclude that only a certain external probability remains for it, which easily vanishes when the reasons are examined” (Tr. xi, 101).

The reason why there ever was any diversity of opinion regarding the bishop’s power to suspend a priest for something the priest does outside the diocese is this: In the Corpus Juris, cap. Ut animarum, de constitutionibus in 6°, we read:

“When, by a statute of a Bishop, a sentence of excommunication is promulgated against all who have committed theft, his subjects who commit theft outside his diocese are known not to be bound at all: SINCE OUTSIDE HIS TERRITORY ONE MAY DISOBEY WITH IMPUNITY THE ONE PRONOUNCING LAW.”

Relying on this passage from the Corpus Juris, some theologians have concluded that the power of a bishop over his priests does not reach beyond the limits of the diocese. That if a bishop threatens a priest with suspension to be incurred ipso facto for some transgression, the transgression must take place within the territory of the diocese. If it does not, the suspension is not incurred. But this is entirely false. As Ballerini points out after St. Alfonsus, in the passage quoted above, the question concerns a judgment of the bishop per modum statuti, or by diocesan statute. All canonists are agreed that the diocesan statutes, or rather a censure that is decreed by diocesan statute, is not incurred unless the transgression is committed within the diocese. But the canonists also distinguish a praeceptum personale from a statutum. A statutum, or statute, is limited to the territory of the diocese, and binds no one beyond the limits of the diocese. A praeceptum attaches to the person and not to the territory; it sticks to one’s bones, as the Corpus Juris has it, haeret ossibus, and follows a person wherever he goes, sicut umbra corpus, et sicut lepra leprosum. A statute, therefore, must not be confounded with a personal command. In the case before us there is no question of a diocesan statute binding all priests of the diocese not to drink. The question concerns a personal command or injunction, praeceptum personale, given to one individual priest. That command binds the priest personally, follows him wherever he goes, inside or outside the diocese, and the censure which it threatens is incurred even outside the diocese, if the command is disobeyed outside the diocese. In the diocese of Westminster there is a statute forbidding priests to go to the theatre, under pain of suspension, to be incurred ipso facto. Since that law is a statutum, it does not bind beyond the limits of the Westminster diocese. Therefore, if a priest belonging to the diocese of Westminster should attend a theatre in Paris or New York, he does not incur the suspension. But if the Archbishop of Westminster should forbid a particular priest to enter a public house for the purpose of procuring strong drink, that would be a praeceptum personale, as the canonists style it, and that would bind such a priest not only in London, but also in Paris and in New York. It cannot be said that the Bishop passes sentence on the priest outside of his territory; for, although the transgression takes place out of the diocese, and the bishop's sentence thus has effect outside his territory or jurisdiction, still the sentence goes into effect silently and without trial or legal process. Now, the true and sole reason why a bishop is prohibited by the Canon Law from pronouncing a sentence of censure beyond the boundaries of his own diocese is lest he seem to invade and violate another bishop’s territory. If there be no invasion nor violation of another bishop’s jurisdiction, there exists no prohibition forbidding a bishop to exercise jurisdiction over his own subjects, even though they be in another diocese, or within the jurisdiction or territory of another bishop. Thus a bishop may dispense in the case of his own subjects; he may command or forbid something under censure to be incurred ipso facto; he may pronounce sentence against one of his subjects for a notorious crime, where no legal proceedings or trial and citation and examination of witnesses are required, even though the subject be at the time in another diocese and the transgression have taken place there. A bishop may even proceed legally against his priest outside his own diocese, cum Strepitu judiciario, summoning witnesses and trying him in open court, provided he receive permission from the bishop in whose diocese the trial takes place.

There can be no doubt, therefore, that if the priest mentioned in our case should partake of intoxicating drink even outside the limits of his diocese, he would incur suspension ipso facto; and if on returning to his diocese he exercise the ministry without having the suspension removed, he becomes irregular.

3. Can the Vicar give the priest permission to drink outside the diocese? He cannot. The Vicar-General has just as much power as the bishop gives him. The Council of Trent, Sess. 24, defines the position of vicars-general. They are supposed to receive sufficient powers from the bishop, so that their position or office may not be vain and an illusion. However, the bishop may and does reserve certain things to himself. In the case before us it cannot be reasonably supposed that the bishop would give the vicar power to thwart and nullify his, the bishop’s, purposes and intentions. It must be supposed, in the absence of certain proof to the contrary, that the bishop reserves this priest’s case to himself, and that the vicar has no jurisdiction to limit or remove the bishop’s censure. The only course open, therefore, to this priest, if he wishes to retain his faculties, is to remain faithful to the written promise that he gave his bishop.