Article — Noldin, Summa of Moral Theology
Article Three. On the Subject of Censure.
The subject capable of censure is only a baptized man, a wayfarer, capable of reason and subject to him who imposes the censure.
13. A baptized man, both because the Church has no jurisdiction over those who are not baptized, and because only the baptized enjoy the spiritual goods of which they are deprived by censures.
Therefore the Church can impose censures neither upon infidels and Jews nor upon catechumens, but indeed upon heretics and schismatics, who by reason of baptism are subject to her jurisdiction.
14. A wayfarer: for the Church does not have jurisdiction over the dead.
But if sometimes the dead are excommunicated, they are not properly condemned by judicial sentence; rather, for striking terror into the faithful, the Church only declares that in life they incurred censure because of their delicts and must be treated as censured, i.e. that they must be deprived of the suffrages of the Church and of ecclesiastical burial, and, if already buried in a blessed place, must be exhumed. In like manner, if the dead are absolved from censure, the Church only removes the prohibition by which they could not participate in the common suffrages of the faithful nor be given ecclesiastical burial.1
1 The rite of absolving an excommunicated dead person is had in the Roman Ritual, tit. III, c. 4.
15. Capable of reason: for since censure supposes sin, indeed also contumacy, it cannot be imposed upon those who cannot yet sin.
The question is whether those who indeed have the use of reason, but are still impubescent, can be bound by censure. Although the impubescent are of themselves capable of censure, nevertheless from the common opinion of doctors these things must be held:
a. The impubescent, by the will of the Church, do not incur censures of a sentence already passed unless this is expressed in law.1 Wherefore the impubescent incur only one censure also, because this is expressly established in law, namely because of entrance into a monastery of nuns.2
b. With respect to censures of a sentence to be passed, by positive law indeed it is not prohibited that the impubescent be bound by them; nevertheless the age of the impubescent does not seem sufficient for them suitably to be censured: for the impubescent, as the Salmanticenses well observe (n. 168), are more suitably corrected with rods than with censures.
1 C. Pueris 1 and C. Referente 2. De delictis puerorum (V. 23).
2 Council of Trent, sess. 25, c. 5, De reg. In the old law there is another excommunication which even the impubescent incurred, namely that carried against those violently laying hands upon clerics (C. Super 1. C. Mulieres 6. C. Pueris 60. De sententia excommunicationis [V. 39]). But several doubt whether in the recent law this same thing avails (cf. n. 70).
16. A subject: for there is no jurisdiction over one who is not a subject. Therefore:
a. The supreme pontiff alone cannot be bound by censure, because he has no superior on earth, and he cannot bind himself. But all the faithful can be bound by censures by the supreme pontiff, and all diocesans by the bishop.
a. Although all the faithful can incur pontifical censures, nevertheless bishops and cardinals from a privilege of law do not incur suspension and interdict to be incurred by the very fact, unless special mention is made of them;1 but bishops and cardinals are also subject to papal excommunication, unless they are specially excepted.
b. Although all subject to the bishop incur episcopal censures, nevertheless kings and queens by a privilege introduced through custom cannot be struck by censures by bishops, even if in other respects they are subject to the bishop's power, both legislative and judicial.
b. Strangers, or subjects of another, do not incur episcopal censures to be incurred by the very fact, unless the matter concerns censures attached to those laws which even strangers are bound to observe;2 nevertheless strangers, or subjects of another, can be punished by a bishop with censures carried by a particular precept if they have committed a delict in his territory: for by reason of the delict they become his subjects.
a. Therefore a stranger who commits a delict to which an episcopal censure is attached does not incur the censure, because a bishop cannot bind another's subject, even one delinquent in his diocese, by censures carried by way of general sentence and therefore before the delict, and to be incurred by the very fact. The same must be said of one who commits in a place exempt from the diocese, e.g. in a monastery, a delict to which an episcopal censure is attached. Nevertheless, one who has once been bound by censure remains bound by it, even if he goes into other regions: for censure follows him as the shadow the body and leprosy the leper.
b. Since a stranger by the statute of law obtains the forum of the delict, both because there where the delict was perpetrated the author and quantity of the crime are more easily known, and because restoration of the injured order is better obtained there where the violation was made, by reason of the delict a stranger becomes the subject of the bishop of the place in which he committed the delict.
c. Exempt regulars do not incur episcopal censures, nor can they be bound by censure by bishops except in those matters in which jurisdiction over regulars has been conceded to bishops by law. In this case bishops act as delegates of the apostolic see.
d. One delinquent outside the diocese does not incur a censure carried by general statute, because this statute affects only the territory; but he incurs a censure carried by special precept for guarding against some crime, as if a bishop, under penalty of suspension of a sentence already passed, prohibits a cleric from entrance into a tavern, but the cleric enters a tavern outside the diocese.
Several authors indeed deny that a cleric in this case incurs censure, whose opinion St. Alphonsus (n. 23) calls probable; but, as Ballerini after Laymann notes, a particular precept, as clinging to the bones, obliges even outside the diocese; wherefore the opinion denying it seems to lack true probability.3
e. One delinquent within, but existing outside, the diocese can be bound by censure by the bishop; thus a bishop can suspend a parish priest who flees after a delict has been committed.
Citation indeed, since it imports judicial noise, cannot be made in another diocese; nevertheless one absent can be cited by letters and, having been cited, must appear; but if he does not appear, he can be excommunicated.
1 C. Quia periculosum 4. De sentent. excommun. (V. 11) in 6°.
2 Cf. De principiis n. 149.
3 Ballerini-Palmieri VII, n. 71.
17. Whether the subject of censure can be an entire community, e.g. a university, monastery, chapter, city.
a. Interdict can be imposed upon a whole community, although there are several innocent persons in it; for by interdict the innocent are not properly punished, but the Church for just causes withdraws her benefits from both the guilty and the innocent.
b. Suspension can be imposed upon a whole community, although there are several innocent persons in it, because suspension does not affect the innocent except with respect to acts which belong to the whole community as such, such as the election of superiors.
c. Excommunication cannot be imposed upon a whole community, but only upon those who are found culpable: for since in a community several persons are accustomed to be either altogether innocent or less guilty than others, it would be too harsh if all were affected by the same penalty.1
1 C. Romana ecclesia 5. De sententia excommun. (V. 11) in 6°.
18. Nothing prevents someone from being bound at the same time by several censures of the same species, and likewise from being loosed from one while he remains bound by another.
a. No one doubts that someone can be bound by several censures of diverse species, e.g. excommunication and suspension; but they have doubted whether someone can be bound by several censures of the same species. For since censure consists in the privation of spiritual goods, if someone by force of one censure has already been deprived of goods, he cannot by another censure again or more greatly be deprived of the same goods. But formally censure is not so much privation as the cause inducing privation; but nothing prevents the same privation from existing from several titles and causes, just as several mortal sins deprive of the same sanctifying grace.1
b. There is an axiom in law: as many transgressions, so many penalties.2 Therefore one who commits two crimes distinct in species, to each of which a distinct excommunication is attached, as, for example, one who commits heresy and reads a book prohibited under censure, incurs a twofold excommunication. One who commits two crimes distinct in number, e.g. commits a duel twice, incurs the same censure twice. One who commits a crime by which two penal laws diverse in species are violated at the same time incurs a twofold censure; for example, one who kills a priest in a church incurs the censure laid upon personal sacrilege and upon local sacrilege. One who commits several and diverse crimes prohibited by the same penal law incurs the censure several times; thus one who reads, retains, prints, and defends a book prohibited under excommunication is excommunicated from a fourfold head, because all four actions are prohibited by the same penal law.
1 Cf. Ballerini-Palmieri VII, n. 78.
2 C. Ea, quae 1. De poenis (V. 37).