Article II: On the Principle or Author of Censures

1665. Principles. - I. The Church enjoys true power of bringing censures. See the arguments among the Dogmaticians.

II. All and only ecclesiastical Superiors having jurisdiction in the external and contentious forum can bring censures by ordinary right. This is clear from the words of Christ in Matthew:³ Whatever things you shall bind, etc. For by these words Christ gave to the Prelates of the Church, in the person of the Apostles, every power for the good and right administration of the Church. It is also clear from several places of Canon Law.

III. Censures can be brought, by that delegated power, by all and only Clerics to whom it has been granted by a Superior having ordinary jurisdiction. The reason is because every and only Cleric is capable of ecclesiastical jurisdiction, which is required for bringing censures.⁴

1666. Rules. - 1° By ordinary right the Pope and a General Council can bring censures with respect to the universal Church; - the Roman Congregations, as the Congregation of the Council, of the Holy Office, of Bishops and Regulars, etc., likewise for the universal Church, in those things committed to them to be executed; - Archbishops both in their own dioceses and in the dioceses of suffragans at the time of visitation, and also when there is question of a cause brought to their tribunal by appeal, because then they have jurisdiction over suffragans; - Bishops with respect to their own diocese, provided they have been confirmed, even if not consecrated, and more truly also their Vicars General, because with the Bishop they constitute the same tribunal. Except the case of which in n. 1164. I. 10); - Legates in the territory of the legation, and Cardinals in the Church of their own title; - provincial Councils in their provinces; Generals, Provincials, and local Superiors and general Chapters (among some regulars also provincial Chapters) of religious Orders according to their various statutes; - the Chapter of the cathedral Church, the See being vacant, and before the election of the capitular Vicar, who (among us, the Administrator) thereafter will enjoy such power exclusively.¹

2° Pastors cannot, by ordinary right, bring censures, because today they do not have jurisdiction in the external and judicial forum, but only administration for the right order of the parish.²

3° Women, more probably not even by delegation, can bring censures. Therefore Abbesses of Nuns cannot bring them by their own authority, but can only obtain a Decree by which their commands must be observed under penalty of censure. - But the incapacity of a lay man is only by ecclesiastical law. Therefore the Pope can delegate this power to a lay man.³

4° Delegated power ceases by the death of the one delegating, or by his removal from office, unless the cause has already been begun by the delegate, at least by citation (cf. n. 151. 6°). But one delegated for bringing censures cannot subdelegate another, unless he has express license from the one delegating, or unless at least he is delegated to any causes whatsoever by way of office, or by the Pope (cf. however n. 150. R. 2°).

1667. Questions. - Query 1° Whether heretical, excommunicated, and suspended Bishops can validly bring censures?

Resp. 1° Affirmatively, if they are occult heretics, excommunicates, or suspended persons. The reason is because the Church, on account of the common good, does not take away from them the use of jurisdiction. Yet they act illicitly whenever they bring censures. - Thus commonly the Theologians with St. Alphonsus.⁴

Resp. 2° Negatively, if they are excommunicated persons to be avoided, or not tolerated, because then they are deprived of all ecclesiastical jurisdiction. (The same, for the same reason, holds concerning those suspended from jurisdiction.) But what if they are indeed notorious, but not to be avoided? It seems that they nevertheless can validly bring censures, because, they say, it is gathered from the Constitution of Martin V, Ad evitanda, where it is sanctioned that an excommunicated tolerated person, in those things which pertain to public office, is not to be avoided, not even by those who know it.¹

Query 2° Whether a Bishop can bring censure if he is outside the diocese?

Resp. 1° Affirmatively, if the censure is brought by way of precept or statute for guarding against future crimes.

Resp. 2° Affirmatively also, if the censure is brought by way of sentence, which nevertheless does not need knowledge of the cause and judicial process (whether because the contumacy is so manifest that it does not need knowledge of the cause, or because the cause was already known in the proper territory), or, even if it needs judicial process, permission nevertheless has been given by the Ordinary of the territory and the parties consent, since no one unwilling can be drawn outside his proper territory.

Resp. 3° Negatively, if the censure must be brought with judicial process, and the Ordinary of the place denies license. Except, unless the Bishop was unjustly expelled from his own territory; for then in the nearer places he will be able to exercise his jurisdiction, license having been sought from the Ordinary of the place, although not obtained.²

The reason for the threefold response is that, in the case of Response 1st and 2nd, either contentious jurisdiction is not exercised, or it is exercised with the consent of the Ordinary of the territory; but in the case of Response 3rd, such jurisdiction is truly exercised, and indeed without the consent of the Ordinary. But the reason for the exception in Response 3rd is that then it does not stand through the Ordinary that it be exercised in the proper territory from which, as is supposed, he was unjustly expelled.

Query 3° Whether, vice versa, a Bishop existing in his own diocese can bring censure against a subject existing outside the diocese?

Resp. 1° Affirmatively, if there is question of a crime committed in his own diocese. The reason is because otherwise the delinquent could be punished by no one; and, although he has gone away, nevertheless he does not cease to be subject to the jurisdiction of his own Bishop. Nor does it stand in the way that citation cannot be made outside the territory; for it suffices for incurring the censure that the guilty person be cited in his own house or in a public place.¹

Resp. 2° Indeed, the Bishop can bring censure against a subject sinning outside the diocese, if there is question of a matter pertaining to his diocese. Thus Clerics can be excommunicated who, having been ordered to come to the Synod, do not obey; but otherwise, more probably, if the crime were consummated outside the territory, or in an exempt place of the same territory, e.g. in a church or convent of Regulars. Except, if the discussion is of a censure brought against someone by way of a special precept for guarding against crime, as St. Alphonsus more probably teaches, although the contrary sentence also is probable for him, "since one who speaks law outside the territory is not obeyed with impunity."²

Query 4° Whether a Bishop can bind with censure the subject of another, who, namely, has neither domicile nor quasi-domicile in that diocese, but sins in his diocese?

Resp. Affirmatively. The reason is because every delinquent obtains the forum of the place in which he sins. Thus from Canon Law.³ Except, if the delinquent were the Superior of that Bishop, e.g. the Metropolitan of that Bishop. But although a Bishop cannot bring censure against a stranger before admonition, nevertheless, after he has offended in the place and the Bishop has cited him, he can. - These things are said concerning censures by man through sentence. For if the discussion is of censures inflicted by the special law of that place upon delinquents, whether against common law or against the proper laws of that same place, according to the more common and more probable sentence, which exempts newcomers and travelers from the obligation of observing the proper laws of those places, they do not incur them.⁴

Query 5° Whether Regular Prelates can bring censure against subjects existing in whatever place?

Resp. Affirmatively, according to the common sentence. The reason is because the jurisdiction of Superiors is not only territorial, but more personal; whence a change of place on the part of the subject detracts nothing from the jurisdiction of the Superior.