§ 2. ON THE SUBJECT OF CENSURE

1259. PRINCIPLES. I. A Superior can issue censures upon all and only his subjects. The reason is that subjection and jurisdiction are correlative (VII, 13). Therefore, that someone may be able to be bound by censure, it is required: 1. That he be a man; for against demons the Church uses exorcisms, not censures. 2. Baptized; whence heretics can be excommunicated, but not catechumens. 3. A wayfarer; because the dead are only declared excommunicated, or are deprived of suffrages and ecclesiastical burial. 4. Not exempt; because through the privilege of exemption jurisdiction is taken away, namely within the limits of the exemption.

1260. From these things you will gather: a) THE POPE cannot be bound by censures; not indeed by another, because he has no superior; nor by himself, because he is not bound by his own precepts by coercive force.

b) BISHOPS are not bound by censures emanating from themselves, because no one is his own subject. Indeed, by privilege of Law, Bishops and Cardinals do not incur suspension or interdict, unless express mention is made of them, at least indirectly, for example by the clause: "even those worthy of special or individual note." But they are subject to papal excommunication excepted above, even if in the law no mention is made of them (Giraldi, Exp. Jur. pont., P. I, s. 623).

c) KINGS and QUEENS, although they are subjects to Bishops in spiritual matters, nevertheless cannot, by custom, be bound by censure by them. But they are subject to pontifical censures, even those issued by Law, for example against invaders of the temporal dominion of the Holy See and their helpers (VII, 16).

d) EXEMPT RELIGIOUS cannot be bound by the censure of a Bishop. Except if they offend concerning those things in which they are subject to the Bishop as apostolic delegate, for example concerning the celebration of Mass. Indeed, some religious, as mendicants and Jesuits, enjoy a broader privilege, so that they can never be punished by episcopal censure, except in one or another case in which their privileges have expressly been derogated. Nevertheless they can be coerced by other penalties (St. Alph., de Privil., 75; H. Ap., XIX, 43; cf. Lehmkuhl, II, 1117).

1261. • II. Censures are not usually issued against prepubescent persons, nor against indeterminate persons. Thus from the practice of the Church (VII, 14-19).

1. As regards prepubescent persons, if they are already capable of deceit,1 all authors indeed affirm that they can be bound by censure, by way of law or precept. But since prepubescents cannot defend themselves in judgment except through another, there is controversy whether they can also be bound by a censure which is issued by way of sentence.

Each opinion indeed is probable; but in fact, from the common interpretation of laws it is certain "that censures generally issued by Law or by man are not incurred by prepubescents, unless this is expressed in the law: as it is expressed concerning the entrance of boys into monasteries of nuns, and concerning prepubescent strikers of clerics," as we shall note below, n. 1329 and 1333.

2. But as regards indeterminate persons, they indeed can be punished by censures which are issued after the manner of statute or precept (cf. n. 1254).

However: a) EXCOMMUNICATION which is inflicted by way of sentence is null, if it is issued against some uncertain person from a community, for example in these words: he who has perpetrated such a delict, let him be excommunicated.

But if all of some community, after examination has been made, are found guilty, the whole community can validly and licitly be excommunicated by the Pope; but by other Superiors it would be excommunicated illicitly, since this is prohibited by positive Law; and also invalidly, according to the probable opinion. Wherefore the Bishop or prelate ought to excommunicate each guilty person by name.

b) SUSPENSION and INTERDICT can indeed be issued by way of sentence against a whole community, for example against a college or chapter; but then personal rights remain intact, as will be explained in its own place (n. 1303, 5).

1262. III. A subject offending in another's territory or in an exempt place cannot of himself be punished by his own Superior with censure. For a censure issued through a general statute immediately affects the territory, and is restricted to it; when intimated through a particular precept, it touches the delinquent only in the case in which the Superior, before the delinquent's departure, should impose on him the precept under censure (VII, 23). Here the axiom holds: "He who pronounces law outside his territory is not obeyed with impunity" (l. fin., ff., de Jurisdict.).

This opinion is probable, St. Alphonsus being witness (l. c.). There is another opinion, which appears a little more probable to our holy Doctor, resting on this principle, that a precept affects the person and clings to the bones. Whatever the case may be, a censure inflicted by way of sentence touches the subject, even if he exists in another's territory: if he offended in his own territory, or if the delict has its effect in it, for example if a cleric ordered to go to a synod does not obey. But otherwise in other cases (VII, 22).

IV. Travelers or wanderers can be bound by censure by the Superior of the place in which they offended, provided it is done by way of sentence. For any delinquent obtains the forum of the place in which he has sinned.

Yet observe: 1. an inferior cannot bind his own Superior by censure if that Superior has offended in the territory of the inferior; 2. a delinquent traveler, that he may be punished, must by law be warned: for only the contumacious obtain the forum of the place; furthermore, he must be anticipated by citation before he leaves the territory, so that thus, by reason of the judgment begun, he remains subject to the Superior of the place.

We have said: provided it is done by way of sentence; for more probably a delinquent traveler cannot be punished by the Superior of the place by way of statute or particular precept; because a traveler (cf. n. 204), unless he has acquired at least a quasi-domicile, is not certainly subject to the Superior of the place (VII, 26, 27).

IT IS ASKED. Can someone be bound by SEVERAL censures at the same time?

Resp. In the affirmative, because it is not repugnant for someone to be constrained by several chains at the same time, and, being released from one bond, to remain bound by others.

This indeed can happen in a threefold way:

1. If the guilty person has committed several sins to which some censure is annexed. Thus, for example, he who believes a heretic and reads his book is entangled in a double excommunication (cf. n. 1314, 1316). Likewise, he who twice absolves an accomplice from the sin of complicity, or struck two clerics, although by one act.

2. If several legislators have inflicted a censure on the same sin. Thus, for example, he who kills a cleric, although already excommunicated by the Pope, can also be excommunicated or suspended by the Bishop, either by sentence, or by statute, for example one issued against murderers. Thus more probably Suarez with others; and the reason is that the jurisdiction of one legislator does not take away the jurisdiction of another. "This, however, must be understood if the second Superior intends to impose a new penalty; otherwise regularly, the second censure, if it is of the same species, is held as an innovation or publication of the first."

3. If, because of one and the same sin, the same legislator has inflicted several censures of diverse species. Thus, for example, Bishops, because of intrusion, incur the double penalty of suspension and interdict: from the Constitution Romanus Pontifex (cf. n. 1375 and 1376). - We have said of diverse species; for it seems alien to Law that someone, because of the same sin, be punished by the same legislator with several censures of the same species, for example one reserved and another non-reserved (VII, 28).

1 This must always be presupposed; for censure, since it is a penalty, always prerequires on the part of the one to be punished the use of reason: whence the perpetually insane cannot be punished. As regards those who have lucid intervals, they can be bound by censures to which they gave cause during the use of reason. The Superior of whom there is speech here is not the Supreme Pontiff, to whom the whole world is subject, nor a regular Prelate, who governs his own by precepts, and therefore can everywhere touch persons subject to himself. The question concerns other Ordinaries.