Article II. On the Principle or Author of Censures

I say. § 1. It is the native and proper right of the Church, independent of any human authority, to coerce delinquents subject to her by penalties both spiritual and also temporal.

§ 2. But let there be kept before the eyes the admonition of the Council of Trent, sess. XIII, de ref., cap. 1: "Let Bishops and other Ordinaries remember that they are shepherds, not strikers, and that it is fitting for them so to preside over those subject to them that they do not dominate them, but love them as sons and brothers, and labor by exhorting and admonishing to deter them from illicit things, lest, when they have offended, they be compelled to coerce them with due penalties; nevertheless, if it should happen that they sin in anything through human frailty, that precept of the Apostle must be observed by them, that they reprove, entreat, rebuke them in all goodness and patience, since benevolence toward those to be corrected often does more than austerity, exhortation more than threat, charity more than power; but if, on account of the gravity of the delict, there shall be need of the rod, then rigor is to be employed with meekness, judgment with mercy, severity with mildness, so that discipline, salutary and necessary for peoples, may be preserved without harshness, and those who have been corrected may be amended, or, if they refuse to return to their right mind, others, by the salutary example of punishment upon them, may be deterred from vices" (Can. 2214).

Who are adorned with this power is clear from the canon:

§ 1. Those who are strong with the power of bringing laws or imposing precepts can also attach penalties to a law or precept; those who have only judicial power can only apply legitimately established penalties according to the norm of law.

§ 2. The Vicar General without a special mandate does not have the power of inflicting penalties (Can. 2220).

Question 1. Can heretical, excommunicated, and suspended Bishops validly bring censures?

Resp. Affirmatively, if they are occult heretics, excommunicated, or suspended. The reason is that the Church, on account of the common good, does not take from them the use of jurisdiction. But one must respond negatively if they are excommunicated to be avoided, or not tolerated, because then they are deprived of all ecclesiastical jurisdiction. But what if indeed they are notorious but not to be avoided? Or if a declaratory or condemnatory sentence has been brought against them? - Cf. Can. 2264, below, n. 960.

Question 2. Can a Bishop bring a censure if he is outside the diocese?

Resp. Affirmatively, if the censure is brought by way of precept or statute for guarding against future crimes, or by way of sentence, which nevertheless does not need cognition of the cause and judicial formality, or, even if it needs judicial formality, nevertheless permission has been given by the Ordinary of the territory. - But one must respond negatively if the censure must be brought with judicial formality, and the Ordinary of the place denies permission. Except, unless the Bishop has been expelled by force from his own territory; for then permission asked from the Ordinary of the place suffices, even if not obtained. - Cf. Schmalzgr., lib. 5, tit. 39, n. 26; St. Alphonsus, n. 21; Can. 201, §§ 2, 3; 1637.

Question 3. Conversely, can a Bishop existing in his own diocese bring a censure against a subject existing outside the diocese?

Resp. Affirmatively, if there is question of a crime committed in his own diocese. The reason is that 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. Although after the delict the guilty person has departed from the place, the judge of the place has the right of citing him to appear and of bringing sentence against him. Indeed the Bishop can bring a censure against a subject delinquent outside the diocese, if there is question of a matter pertaining to his own diocese; thus clerics who, ordered to come to the Synod, do not obey can be excommunicated; but otherwise, at least more probably, if the crime were consummated outside the territory, unless the discussion is of a censure brought against someone by way of special precept for preventing crime, as St. Alphonsus, n. 23, more probably teaches, and Laymann confirms with valid reasons, lib. 1, tract. 5, part. 1, cap. 4, n. 7. Can. 1717, § 2; 1561; 1566.

Question 4. Can a Bishop bind by censure an alien subject delinquent in his own diocese?

Resp. Affirmatively, and the reason is that every delinquent obtains the forum of the place in which he offends. Thus from canon law, lib. 2, tit. 2, De foro competenti, cap. 3. But although the Bishop more probably cannot bring a censure against a sojourner before admonition, nevertheless he can after he has offended in the place and he has cited him. Then by reason of the delict the Bishop can punish the sojourner when that delict is prohibited by ecclesiastical law of common law under excommunication or other penalties to be inflicted by the ecclesiastical judge. But a sojourner cannot be inflicted with penalties while he is traveling, whether he has violated laws of his own or of another diocese, for while staying outside his own diocese he is not obliged by the particular laws of his diocese, nor by the laws of this diocese, as is clear from what was said on Laws, n. 80, Q. 3°. - Cf. St. Alphonsus, n. 26; and on the Sacrament of Penance, n. 591. - Cf. Can. 14, § 1.