§ 1. ON THE AUTHOR OF CENSURE

1255. PRINCIPLES. I. The power of issuing censures is in the possession of the Church. This is of faith, against the innovators, and is clear both from the fact that Christ gave pastors the power of punishing; and from the use of the apostles and the constant practice of the Church; and finally from the Council of Constance, Sess. 8, err. 3, as well as from the Bulls of Martin V and Leo X (VII, 9).

1256. II. The ordinary power of issuing censures is in the possession of all and only ecclesiastical Superiors having jurisdiction in the external and contentious forum. This is clear from various places of Canon Law. The external forum is the place, territory, in which matters pertaining to the external government of the Church are treated. The contentious forum supposes lawsuits and judicial noise.

Hence, the following can issue censures: 1. The Pope and a general Council, with respect to the whole Church. 2. Roman Congregations, as the Congregation of the Council, of the Holy Office, of Religious, etc., even for the universal Church, in those things which have been committed to them to execute. 3. Apostolic legates, in the territory assigned to them; Cardinals, in their churches. 4. Patriarchs and Archbishops with respect to the subjects of their own diocese; but not in the diocese of suffragans, unless at the time of visitation, or unless a cause is devolved to them by appeal. 5. Bishops, with respect to their own diocese, provided they have been confirmed, although not yet consecrated. 6. Vicars general of Bishops, with respect to the diocesans; because they constitute one tribunal with their own Bishop. 7. Generals, Provincials, and local Superiors of Religions, namely of regulars, as priors, guardians, rectors, with respect to subjects, and according to the various statutes of the Orders.⁰¹ - 8. Provincial Councils, Congregations of Religions, the Chapter of a cathedral church when the see is vacant and the Vicar has not yet been elected; then the capitular Vicar: each respectively for his own subjects. 9. Certain others by privilege, as many Archdeacons, Archpriests, and Deans are. 10. All who, through common error, with a presumed title, are regarded as Superiors (cf. n. 139-144).

Note. Parish priests cannot issue censures; for they have no power in the external forum (VII, 10, 11); nor does custom favor them.

1257. • III. The delegated power of issuing censures is usually committed to clerics alone. The reason is that ordinarily clerics alone are capable of ecclesiastical jurisdiction. Married clerics, however, are declared by Law incapable of this jurisdiction (c. de Cler. conjug., in 6).

It is said: to clerics alone; but it suffices that they be marked with first tonsure; is usually committed: by these words regard is had only to ordinary cases. For in an extraordinary case, a baptized layman could be deputed to issue censures, but from the sole Commission of the Supreme Pontiff. Baptized, we have said; for he who is not in the Church is not capable of ecclesiastical jurisdiction, as the truer opinion teaches.

It is a great question whether a woman, for example an Abbess, can be delegated.

The first opinion says: a woman by divine Law is incapable of an office properly ecclesiastical; yet from this it does not necessarily follow that the Supreme Pontiff, from absolute power, can commit no delegation to a woman, by way of a transitory act (Suarez, de Cens., disp. 2, s. 3, n. 7). Lugo defends the same opinion (Resp. mor., l. 6, c. 6, n. 9), where he asks whether the Supreme Pontiff can delegate spiritual power to an unbaptized man (cf. Lehmkuhl, II, 1118).

But the second opinion, to which St. Alphonsus adheres (VII, 12), holds with St. Thomas (in 4. D. 19, q. 1, a. 1, sol. 3, ad 4), the Salmanticenses, and others, that a woman can in no way have either the key of order, or the key of jurisdiction (cf. Vind. Alph., P. VIII, q. 5). But an Abbess could obtain a Decree by which, under penalty of censure, her commands must be observed.

Note. a) Delegated power ceases by the death or removal of the delegating one, unless the cause has already been begun by the delegate, at least by citation of the accused. b) A delegate cannot subdelegate, unless he has a special commission for this, or unless he is delegated by the Roman Pontiff or for the universality of causes, and, in both cases, by way of office (cf. n. 322).

1258. IV. For the valid exercise of the power of issuing censures there are required: the intention of binding and a power unimpeded as to use. The first is evident. As to the second, everyone knows that the excommunicated, suspended, heretics or schismatics, if they are to be avoided, can issue no censures, since their power is bound by Law (VII, 12).

Note. He who issues a censure from grave fear validly binds the censured person; because an act done from grave fear does not of itself take away the voluntary; it is therefore valid, unless it is specially nullified by positive Law. Concerning absolution from censures extorted by grave fear, see what is to be said n. 1286.

Corollaries. Since the power of issuing censures is something annexed to legislative power, the following things follow:

1. A Bishop existing OUTSIDE his own diocese can issue censures upon subjects, by way of statute, or precept, for preventing future crimes, because for issuing a censure in this way judicial noise is not required; but not by way of sentence, because no one is able to exercise contentious jurisdiction in another's territory.

Except: a) If the contumacy of the delinquent subject is so manifest that it does not need cognition of the cause. b) If the cause has already been judicially cognized in his own territory. c) If the Bishop has been unjustly expelled from his diocese; in which case, he can exercise his jurisdiction in nearer places, permission having been sought from the Ordinary of the place, although not obtained. d) If, in other cases, the Ordinary of the place consents; provided that the consent of the parties also accedes, because no one can unwillingly be drawn outside his territory (VII, 21).

2. Regularly it is not expedient that a Superior issue censures in his own cause; this is reputed in Law as vengeance.

Except: a) if it is done not by way of judgment, but by way of defense, against him who inflicts violence; because it is permitted to repel force by force; b) if the cause is so public and manifest that it can neither be denied nor needs any examination (Konings, 1662).