Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article III. On the Subject of Censures
- Principles. - I. The subject of a censure cannot be except a baptized man, capable of reason, and a subject. 1. He must be baptized, because, according to the Apostle, the Church does not judge concerning those who are outside; 2. capable of reason, because a censure is ordained to the correction of the delinquent, but this has no place in one who lacks the use of reason; 3. a subject, because a censure is an act of jurisdiction, which can be exercised only upon subjects.
II. Minors, although they can absolutely be bound by censures, nevertheless, on account of the levity of their age, through the indulgence and benignity of the Church do not incur them unless it is specially expressed in the law. - St. Alphonsus, no. 14.
- If they have struck clerics. Chapter Pueris, book 5, title 39, On the Sentence of Excommunication. - St. Alphonsus, ibid.
- Questions. - QUESTION 1. Can Kings and Queens be bound by censures by Bishops?
Reply. Negatively. For although in spiritual matters they are subject to Bishops, nevertheless by privilege they cannot be punished with censure by them, but only by the Pope 1. But this privilege was legitimately introduced in the course of time and is commonly attributed to them by the Doctors. - St. Alphonsus, no. 16; Salmanticenses, chapter 1.
1 Kings, emperors, etc., are subject not only to pontifical censures latae sententiae through general statutes, for example, against those invading the goods, territories, rights, etc., of the Church, but can also be punished by censures through a particular or general sentence.
QUESTION 2. Are Bishops and Cardinals subject to censures?
Reply 1. Certainly they cannot be subject to censures imposed by themselves, because no one is his own subject.
Reply 2. But they are subject to papal censures, because the Pope is the Superior of all, even of Bishops. Nevertheless, by privilege of law they are bound neither by interdict nor by suspension unless in imposing those censures special and express mention is made OF THEM, namely, of the Cardinals. - St. Alphonsus, no. 15.
- QUESTION 3. Can exempt religious be bound by episcopal censures by the Bishop of the place?
Reply 1. More probably affirmatively, if religious, although exempt 2, sin concerning those things in which, by force of the Canons and Constitutions, they are subjected to the jurisdiction of Bishops, for example, in the observance of feasts which the Bishop has commanded to be observed in his diocese, or in the observance of censures promulgated by the Bishop, etc. The reason is that jurisdiction in the external forum cannot be unarmed for executing laws and statutes; for otherwise it would become useless. Therefore, if in some matter a Bishop possesses jurisdiction over religious, by that very fact he can proceed against delinquents even through censures. For one who has contentious power of the external forum can use it in the choice of any penalty whatever, but especially of a spiritual censure, by which ecclesiastical Prelates proceed against subjects. - Thus the laws and the unanimous opinion both of Canonists and of Theologians in Pignatelli (volume 3, consultation 46, no. 24).
2 If they are not exempt, they are subject to episcopal laws and censures no differently from other clerics. Moreover, if they have the Bishop as their proper Prelate, they can be bound by censures by him just as the other religious by their Superiors. Sanchez (On the Decalogue, book 6, chapter 1, no. 11) and Schmalzgrueber (book 3, title 35, nos. 61-62).
But according to the more common opinion, Bishops proceed in these matters not by ordinary power but by power delegated by the Apostolic See. Thus St. Alphonsus, book 7, no. 241 3. Moreover, St. Alphonsus enumerates the principal cases in which even exempt religious are subjected to the power of the Bishop in The Apostolic Man, tract 20, On Privileges, chapter 4 4. Nevertheless, this is absolutely denied by not a few authors, whom several decrees of the Pontiffs and of the Sacred Congregation of the Council appear to favor 5.
3 Namely, after the privilege of exemption, religious are and remain exempt and immediately subject to the Roman Pontiff; wherefore Bishops proceed against them by no other title than that of mere commission or delegation. This must be carefully retained against the false hypothesis of De Luca, who (Ecclesiastical Miscellany, discourse 16, nos. 13-14) imagines that native jurisdiction is restored to Bishops in the case and thereby becomes ordinary, so that, namely, he may prove that it must be interpreted broadly.
4 Barbosa (On the Office and Power of a Bishop, part 3, allegation 105, no. 14 and following) numbers fifty-two cases in which religious, even exempt religious, are subject to the jurisdiction of the Bishop; but Chockier (On the Jurisdiction of Ordinaries over Exempt Persons, part 2, question 45) numbers altogether one hundred and sixteen. The principal cases, however, are found in Schmalzgrueber (book 5, title 33, nos. 253, 254).
5 In these things you have a trace of no small confusion introduced into this question; to this it is also due that St. Alphonsus, when the various statements of the same opinion are compared together, compare On Privileges, no. 75; ibid., no. 77; and book 7, no. 241, appears less coherent with himself. But the principal cause of this confusion can be held to be that the authority of certain Doctors who either wrote before the promulgation of certain decrees of the Sacred Congregations or were ignorant of these decrees is nevertheless invoked as though their vote could contribute something toward deciding this question. Since other causes have acceded to this from a distorted interpretation either of Law or of Privileges, it is no wonder if we see called into controversy that which ought to be held beyond controversy. From this it must also be derived that the Author presents as merely more probable the power by which Bishops can use censures against exempt persons, But Benedict XIV (On the Diocesan Synod, book 9, chapter 16, no. 5, and book 7, chapter 41, no. 5) testifies that this was established as certain, decreed, and declared by the Sacred Congregation on 17 February 1632 in these words: In those matters in which jurisdiction over religious has been granted to the Bishop by the common law, by the Holy Council of Trent, and by the Apostolic Constitutions, he can compel them even through ecclesiastical censures. For this opinion, indeed, both the reasons, the repeatedly issued decrees of the Sacred Congregation, and the vote of Doctors agreeing almost unanimously may be seen in Pignatelli (volume 3, consultation 46, nos. 11 and 12) and Monacelli (part 3, title 3, formula 6, no. 13).
Reply 2. Negatively, if there is question of those religious who enjoy not only the general privilege of exemption but also a further special privilege by force of which, although they can be corrected and restrained by other penalties if they sin in those matters in which the Apostolic See has subjected them to Bishops, nevertheless they cannot be punished through censures. This privilege was never generally abrogated, although Gregory XV derogated from it in certain matters (Constitution Inscrutabili, section 6). - St. Alphonsus, no. 241 6. whenever it is necessary for compelling them in those matters in which religious are subjected to their jurisdiction.
6 Care must diligently be taken lest the twofold exemption or immunity of religious from the censures of Bishops be confused. For one arises from this: that religious in certain matters are entirely exempt from the jurisdiction of Ordinaries; wherefore, since with respect to these things they are not their subjects, they are bound neither by their laws nor by their precepts, and therefore can be punished neither by censures nor by other penalties. If, however, in some matter they are subjected to the power of those same Ordinaries, and it has already been premised that in many matters they are so subjected, when sinning in these they can be corrected, punished, and restrained even by censures, as we have already said. But the other arises from this: that by a special privilege certain religious cannot be struck by censures even in those matters in which they are otherwise subject to the jurisdiction of Ordinaries, although they can be restrained and punished by them with other penalties. And indeed, from the lack of this distinction, see both Bonacina (On Enclosure, question 3, point 4, no. 8), Henriquez (Summary, book 7, chapter 25, no. 7), Ascanius Tamburinus (On the Right of an Abbess, disputation 25, question 9, no. 1), Peyrinus (On Religious, volume 2, on Constitution 6 of St. Pius V, no. 37), James de Graffis (Decisions, part 1, book 4, chapter 6, nos. 2, 3), and finally John Aloysius Riccius (Practice, volume 4, resolution 180), and in part also Joseph de Januario (Selected Resolutions, resolution 34, no. 16), carried astray.
Moreover, that this special privilege, plainly distinct from the common prerogative of exemption, was granted by the Apostolic See to certain religious is manifest from chapter Volentes 1, On Privileges, in the Sext; for in section 1 there is discussion of those to whom it has been granted by the Apostolic See that they cannot be interdicted, suspended, or excommunicated by anyone; as, it says, are very many religious, in whose privileges it is contained that no Bishop or Archbishop shall presume, for any cause or in any place, to interdict, suspend, or excommunicate the monks of their monasteries, etc. St. Alphonsus testifies the same concerning mendicants (book 7, no. 241), and that it was granted anew to the men of the Society of Jesus is plainly apparent from the Constitution Licet Debitum of Paul III, 18 October 1549. But what the Author says, that something was derogated from this privilege by Gregory XV, pertains only to any exempt persons whatever, both secular and religious, who presume to preach in the churches of others, or in churches which are not of their Orders, without the permission of the Bishop, and in their own churches or those of their Orders without having sought his blessing or while he contradicts; and power is given to Bishops that, against delinquents, as often as and whenever there is need, they may freely and licitly proceed through ecclesiastical censures and other penalties.
But what both De Luca, the most hostile enemy of this privilege (Ecclesiastical Miscellany, discourse 16), and Monacelli, who most diligently copied him (part 3, title 2, formula 6), object, that these privileges of religious were derogated by the Council of Trent, is nothing. For, first, privileges are derogated insofar as they conflict with the observance of the synodal decrees. But the faculty of proceeding through censures against religious is granted to Bishops by the Council concerning only these two things, namely: 1. that religious be compelled to restore to novices departing whatever they had given to the monastery; 2. that the enclosure of nuns be observed. Sanchez (On Matrimony, book 7, disputation 33, no. 23) adds a third case concerning a religious who celebrates Mass outside a church or oratory. But, moreover, that the mind of the Council was not to derogate from that special privilege of certain religious is apparent from the Declaration of the Sacred Congregation of 9 April 1587, in which there is question of the same case as in the decree of the Council. Suarez (On Religion, tract 8, book 1, chapter 10, no. 27) reports it thus: Religious approaching monasteries of nuns without the permission of the Bishop incur the penalty of excommunication which the Bishop proposed by his edict, unless those religious had by privilege that they could not be excommunicated; and then they ought to be punished by their Superiors with another penalty.
And these things are splendidly confirmed from those which Prosper Fagnanus has on chapter Quanto, On Privileges, no. 9. For he proposes this question: Given the Constitution of Gregory XV concerning the privileges of exempt persons, can a religious, approaching without legitimate permission a monastery of nuns subject to religious and there speaking with a nun in the place appointed for conversations, be restrained and punished by the diocesan Bishop as delegate of the Apostolic See? He replies that the decision is plain: that he falls into excommunication if the Bishop imposed that penalty upon one going to the monastery. But then he expressly subjoins these things: The Sacred Congregation approved this opinion long ago when it declared that religious approaching monasteries of nuns, even those exempt from the jurisdiction of the Bishop, incur the penalty of excommunication proposed by the Bishop's edict against those approaching, unless they had a privilege by name that they could not be excommunicated; and nevertheless, even in that case, it judged that they were to be punished with other penalties.
From these things it is also gathered that neither Sanchez (On Matrimony, book 7, disputation 33, no. 23) nor Lezana (Summary of Questions of Religious, volume 2, part 3, under Exemption of Religious, no. 11) touched the matter precisely; for while they defend this privilege of religious, they except those three cases expressed in the Council of Trent. The same must be said of James Pignatelli, who falls into the same error, although otherwise he not only concedes that special privilege of certain religious (volume 3, consultation 46, no. 25, and volume 7, consultation 44, nos. 26, 27), but defends it by the vote of many Doctors.
** Concerning this and the preceding Note the VV. write (page 875): The things which Father Ballerini hands down here are indeed correct; but he less correctly asserts that St. Alphonsus, when his various statements are compared together, appears less coherent with himself. For from the things to be said it will be apparent that our Holy Doctor coheres well with himself and that the things Father B. hands down are also taught by St. Alphonsus.
Reply. I would indeed have preferred that the VV. had composed the sentence of the last part more suitably in almost this manner: Those things which Father Ballerini reported from more accurate Authors are taught by St. Alphonsus. And the reason is that Father B. advances nothing on his own authority, but everywhere devoted himself to this one pursuit: that those things which appeared to be more accurately arranged among the leaders and masters of every School should be subjected to the eyes and judgment of readers.
Meanwhile it remains that some reason be brought here why in the preceding Note it was said in passing that the opinions of the Holy Doctor Alphonsus concerning this argument, if they are compared together, may appear less coherent with one another.
1. Therefore, in the first place there occur those things which he writes generally of religious in this place (book 7, no. 26): But religious are simply exempt from episcopal jurisdiction from chapter Ne aliqui, On Privileges, in the Sext. See the Salmanticenses, no. 37. These things, moreover, appear to be referred to the immunity of all religious when there is question of censures which a Bishop imposes by his own and native authority; for to this also pertains the citation of the Salmanticenses (On Censures, chapter 1, no. 57). Let it now be passed over whether all religious of each sex enjoy this immunity and exemption. But as regards the present matter, the citation of chapter Ne aliqui would suggest that there is question there not of religious generally but specifically of those who among exempt persons themselves are fortified by a particular privilege.
2. Nearly the same obscurity and uncertain sense are displayed by those things which the Holy Doctor immediately subjoins there thus: And a Bishop cannot impose censures upon exempt or privileged religious, such as Mendicants and Jesuits (see below, no. 24, doubt 9), even if he proceeds as Apostolic Delegate, as Croix, book 7, no. 30, with Pelizzarius and others. Namely, the citation of Croix introduces a certain confusion. For those words, Even if he proceeds as Apostolic Delegate, which are likewise taken from Croix, would suggest that there is question here of exempt persons fortified by a special privilege. But, on the contrary, the Authors cited in that place by Croix, such as Krimer and Rodriguez, lead to a different opinion. For Krimer has these words in the place where he is cited by Croix (on book 5, no. 1681): It is inferred that exempt persons cannot be bound by censures by the Bishop either through a general or through a special sentence; thus Rodriguez, volume 2, question 59, article 5; which place of Rodriguez, namely, Croix also cites. But these things are referred to the common exemption of religious. - Moreover, Croix in the cited place, otherwise confusing diverse questions, as is apparent, had circumscribed his opinion by these words: Unless this has been granted to them, namely, to Bishops, specifically. When St. Alphonsus omits these words, his assertion becomes too universal under any hypothesis, as the example brought in the Note from the Constitution of Gregory XV suggests concerning religious who presume to preach in the churches of others without the Bishop's permission.
3. But, you will say, St. Alphonsus (book 7, no. 26) refers the reader to no. 241 of the same book. But in this place he treats merely of the enclosure of nuns. Therefore, through this the opinion previously handed down is not sufficiently completed or limited here. But, moreover, what must be thought concerning the opinion of the Holy Doctor about this argument we now have from the VV. themselves. For they, as we saw above, write concerning the things said in the Note that the things which Father Ballerini hands down here are correct. But in the Note it is sufficiently shown that through those things which are contained in the Constitution of Gregory XV concerning the enclosure of nuns, the special privilege of religious was by no means derogated, so that those fortified by such a privilege, if perhaps they sinned concerning that matter, could be restrained and punished by the Bishop through censures. On the contrary, St. Alphonsus, in The Apostolic Man, tract 19, no. 42, answers affirmatively to the question, Do religious speaking with nuns incur excommunication reserved and imposed by the Bishop? And this applies even with respect to religious having a special privilege that the Bishop cannot excommunicate them. He adds this reason: For Bishops in Monasteries, even those subject to religious, are Delegates of the Apostolic See, as is said in the Bull Inscrutabilis of Gregory XV. But this reason otherwise can conclude nothing, since, as the Holy Doctor himself had said above, no. 2, a Bishop cannot impose censures against these privileged persons EVEN IF HE PROCEEDS AS APOSTOLIC DELEGATE. He repeats the same thing in book 7, no. 241, saying: Such a privilege ought to import this, that a Bishop cannot proceed against them even as Delegate of the Apostolic See. But this itself must also be moderated; because, as is shown in the Note, a Bishop certainly cannot proceed through censures against one privileged in this manner, but a religious of this kind can be restrained and punished with other penalties either by his own Superior or by the Bishop.
Moreover, the Holy Doctor in this place, book 7, no. 241, uses another reason for subjecting a religious of this kind to censures, as though the Constitution of Gregory XV derogated from such a privilege regarding the enclosure of nuns. Wherefore he subjoins: This, however, must be understood if the privilege was granted after the Bull of Gregory, but not if before it, since in the Bull it is said: They cannot protect themselves by any privileges and exemptions, etc. But it has already been indicated in the Note that the derogation of Gregory, even according to the testimony of Fagnanus, does not pertain to this; for in that paragraph of the Constitution, as is apparent from the text transcribed even by St. Alphonsus, not even the slightest mention of censures is made; and otherwise the VV. themselves admit that the things read in the Note are correct.
4. Now some things also concerning those which the Holy Doctor has in the Treatise on Privileges. First, therefore, no. 75, he writes: Here it must be noted that there is a response of the Sacred Congregation to the Bishop of Nebbio, 7 February 1632, where generally speaking it was said: In those matters in which jurisdiction over religious has been granted to the Bishop by the common law, by the Holy Council of Trent, and by the Apostolic Constitutions, he can compel them even through ecclesiastical censures. Wherefore, as Benedict XIV well observes (On the Diocesan Synod, book 9, chapter 15, no. 5), Bishops, with respect to the celebration of Masses, can compel all, although religious, to observe not only those things established by the Council but also those which are established by themselves. Wherefore the Most Eminent Cardinal Spinelli, when he was Archbishop of Naples, rightly commanded on 5 January 1743, under penalty of suspension from divine things, even religious not to admit any visiting priest to celebrate in their churches without permission of the Ordinary. Thus St. Alphonsus. But there are altogether many matters, as we said in the preceding Note, in which religious, even exempt religious, whom, namely, we distinguish from those whose Prelate is the Bishop, are subject to the jurisdiction of the Bishop. And Barbosa (On the Office and Power of a Bishop, part 3, allegation 105, from no. 14) numbers fifty-two cases; but Chockier (On the Jurisdiction of Ordinaries over Exempt Persons, part 2, question 45) numbers altogether one hundred and sixteen. But since, as St. Alphonsus himself teaches above, no. 1, religious are simply exempt from episcopal jurisdiction, it follows that if in some case a Bishop has jurisdiction over religious, it is granted to the Bishop either by the common law, by the Council of Trent, or by the Apostolic Constitutions, and that against them the Bishop, as the same St. Alphonsus teaches, tract 7, no. 241, proceeds in any of these cases as a Delegate. Therefore, according to the aforesaid Response of the Sacred Congregation to the Bishop of Nebbio, which St. Alphonsus adds in On Privileges, no. 75, was confirmed on 4 June 1672, and according to the consequences deduced from it by the same St. Alphonsus after Benedict XIV, it must be said that in all the cases which either Barbosa, Chockier, or others enumerate, Bishops can compel religious to their duty even through ecclesiastical censures.
** 5. But behold, the same St. Alphonsus writes (On Privileges, no. 77): In three cases a Bishop can compel religious to obey, even by employing censures: the first is to restore goods to novices, as was said; the second, to observe enclosure, speaking of nuns; the third, to observe everything which has been established by the Bishop concerning the celebration of Masses. But these things are very far from those just premised, where the same Holy Doctor with Benedict XIV handed down that a Bishop can proceed through ecclesiastical censures against religious in all cases in which jurisdiction over those religious is attributed to him. For that St. Alphonsus, now recalling these three cases, speaks exclusively is evident from those things which he thus subjoins in the same place: Whether then in the other cases cited above the Bishop can compel religious by censure; Barbosa, Garzia, and others affirm, but Sanchez, Lezana, and the Salmanticenses with others more commonly deny it, on account of the many papal privileges which they bring forward concerning this matter.
6. Therefore, just as the things which the Holy Doctor hands down in this paragraph do not cohere with those which he had taught above, no. 4, in the same Treatise, so neither do they cohere with those which he has in book 7, no. 26, where, above no. 2, he generally denies that a Bishop can proceed through censures against privileged persons even if he proceeds as Apostolic Delegate; and again neither do they cohere with those which he discusses in book 7, no. 241, where he denies that a Bishop can proceed through censures even regarding the enclosure of nuns if the religious have those papal privileges which he recalls here.
But the cause of this dissonance of opinions is finally not obscure, if it is observed that St. Alphonsus took those things which he has in On Privileges, no. 75, from Lambertini's work On the Synod, book 9, chapter 15, no. 5; that he borrowed compendiously from the Salmanticenses (On Privileges, chapter 3, section 3) those things which he has in On Privileges, no. 77; that he excerpted from Croix, book 7, no. 30, and the Salmanticenses (On Censures, chapter 1, no. 37) the few things which he has in book 7, no. 26; and, from another source, those things which he discusses in book 7, no. 241, concerning the enclosure of nuns. For otherwise it is not easy to find an Author who treats this most intricate question exactly in all its parts; and otherwise, in order that the matter may shine forth sufficiently clearly as to each part, prolonged and intense labor is certainly needed, as can sufficiently be conjectured from those few things which are contained in the Note.
QUESTION 4. How ought one who doubts whether he is bound by a censure to conduct himself?
Reply. If he doubts whether he was absolved from a censure, he ought to hold himself as still entangled in the censure until he has questioned the Superior. The same must be said if he doubts concerning the power of the Superior in imposing the censure, since the presumption must always be for him. But it is otherwise if he doubts whether he has incurred the censure, whether the doubt is of fact, for example, concerning the crime, as if he doubts whether the striking of a cleric was gravely injurious; or the doubt is of law, that is, concerning the sentence, for example, in doubt whether the censure is latae or ferendae sententiae, etc. - St. Alphonsus, nos. 32 and 67.
- QUESTION 5. Can someone be bound by several censures at once?
Reply. Affirmatively. For nothing prevents someone from being constrained by several bonds at once. For just as someone can commit several sins diverse in species and number, so also can he be bound at once by censures diverse in species and number, for example, by excommunication, suspension, if he is a cleric, and interdict, and also by several excommunications, etc. Indeed, on account of one offense someone can be bound at once a iure and ab homine, by the Pope and by the Bishop, so that he must be absolved by each, provided that the latter Superior intends to impose a new penalty. - Thus commonly, and absolutely more probably according to St. Alphonsus, no. 28.
Hence: 1. If someone by a single act commits two sins diverse in species, to each of which a censure is annexed, he will incur two censures; for example, one who kills a cleric in a place where homicide is prohibited under penalty of censure. It is otherwise, however, if that one sin does not have malices diverse in species. - St. Alphonsus, no. 28.
- If someone repeats the same crime to which a censure is annexed by an act morally distinct from the first, he again incurs the same censure; but it is otherwise if the repeated acts are not morally distinct from one another. Thus one striking a cleric three or four times, with a notable interval posited between each strike, incurs three or four censures, while he incurs one if he strikes him several times continuously.
- Likewise, an excommunicated Priest who successively absolves several penitents will incur several irregularities, because each time he confers a new Sacrament 7. - St. Alphonsus, ibid.
7 This example does not pertain to the matter, because it is not certainly established that several sins distinct in number are had here. See above, no. 211, question 9.
QUESTION 6. Does an appeal excuse from incurring a censure?
Reply 1. A legitimate appeal excuses from a conditional censure, provided that it is made before the lapse of the time granted for fulfilling the condition.
Reply 2. A legitimate appeal from a censure already imposed generally does not suspend it. Hence the common saying of Canonists is that the appeal is then devolutive, but not suspensive. - Thus Benedict XIV, Constitution A militantis.
QUESTION 7. Can an entire community be the subject of a censure?
Reply 1. Negatively with respect to excommunication, unless it is established that each and every person of the community is a participant in the crime and contumaciously persists in it.
Reply 2. Affirmatively with respect to suspension, yet so that, if there are any innocent persons, it strikes them only with respect to the functions and rights belonging to the community itself as such, but not with respect to functions and rights which belong to each one individually.
Reply 3. Affirmatively also with respect to interdict; this censure has this peculiarity, that if it is general it binds the entire community, and in it even the innocent, from chapter Si civitas 17, On the Sentence of Excommunication, in the Sext. Nor can the one imposing the censure therefore be accused of injustice; for, properly speaking, through such an interdict the innocent are not punished, but for just causes the Church withdraws her benefits and offices from the guilty and innocent alike. Common opinion. - See Schmalzgrueber, book 5, title 59, nos. 44-46.