Contumacy

8. Notion of censure. A censure is a medicinal penalty by which the use of certain spiritual goods is taken away by the Church from a delinquent and contumacious Christian. Therefore two things are needed for incurring a censure: a delict and the contumacy of the delinquent.

a. Among the ancient Romans the name censure signified both the dignity and office of the censor, and also the sentence of the same, by which he either branded with a mark or inflicted a penalty upon citizens. In ecclesiastical usage censure signifies both a judgment by which it is noted whether something is worthy of praise or of blame, and a penalty inflicted for crime.

b. Medicinal: for in inflicting censure the Church chiefly intends the restraint of crime and the amendment of the delinquent; wherefore, once amendment has been posited, censure by its own nature demands that it be taken away; and if sometimes it is carried against those whose amendment is despaired of, this is done for striking terror into others. For the same reason censure is to be inflicted simply, not perpetually nor to a certain day, so that when the guilty person has amended himself, he can be absolved.

c. Censure can also have the character of a vindicative penalty, but only secondarily; but if it is inflicted chiefly for punishing a delict, it cannot be a censure properly so called.

d. Contumacious: censure is inflicted for breaking contumacy (virtual contempt of authority and of censure, disobedience), whose nature is described below. Therefore contumacy as a condition for incurring censure is always required; and as soon as contumacy ceases through the amendment or satisfaction of the delinquent, the censure is to be taken away, just as once health is recovered the use of medicine ceases.

e. Of spiritual goods, namely those which are subject to the power of the Church. Indeed, besides the goods which inhere habitually in each person, goods of a threefold kind exist in the Church: goods which proceed from the Head, or from Christ; goods which proceed from the members taken privately; goods which proceed from the body, or from the Church. Now, one censured cannot be deprived of goods habitually inhering in himself, such as the sacramental character, the power of order, faith, hope, and charity, etc.; nor of goods which proceed from Christ, the Head of the Church, such as manifold graces, because these goods do not depend upon the Church; nor can he be deprived of goods which proceed from the members of the Church taken individually, such as the prayers and good works of the faithful, because the Church cannot impede the communion of saints; but only of goods which are administered and conferred by the Church, such as the use of the sacraments, the sacrifice, indulgences, common suffrages, jurisdiction, ecclesiastical benefices. And if sometimes the Church deprives someone of temporal goods, as of civil commerce with the faithful, this is done secondarily and indirectly, insofar as it conduces to the spiritual good both of him who is bound by censure and of others.

¹ Suarez, De censuris. Covarruvias, Operum t. I, p. 315. Dicastillo, De censuris. Tamburini, De censuris et irregularitate. St. Alphonsus l. VII, De censuris eccles. Bucceroni, De censuris etc.^4 (Rome: Typographia S. C. de Prop. Fide, 1896). Hilarius a Sexten, Tractatus de censuris ecclesiasticis (Mainz: Kirchheim, 1898). Hollweck l. c., Die Zensuren, p. 86 ff. Heiner, Die kirchlichen Zensuren (Paderborn: Bonifatius-Druckerei, 1884). I. Kock, Die kirchlichen Zensuren latae sententiae (Graz: Styria, 1902). Paschalis de Siena, Commentarius in Const. Ap. sedis^3 (Pustet: Rome, 1902).

22. Committed with contumacy: for censures have been instituted for breaking contumacy against the power of the Church threatening the penalty. But he is judged to be contumacious who knows that something is prohibited by the Church under penalty and nevertheless dares to act against the prohibition.

A twofold contumacy against the Church, or contempt of the Church, is distinguished: special, which is committed by a proper and formal act of contempt against the power of the Church and constitutes a special sin; and general, which is implicitly contained in the transgression of ecclesiastical law committed by one who knew that the matter was commanded or prohibited by the Church under penalty. General contumacy suffices for incurring censure, nor is it required that the delinquent in the act of sin, e.g. while he commits a duel, think about the censure, provided he knows it habitually.

Note. These conditions are required in order that censure be present in the internal forum; in order that it also be incurred in the external forum, it is further required that the delict be notorious, and that not only with respect to the fact in itself, but also with respect to the conditions which are necessary for incurring censure. But since the conditions which by their nature are internal, such as knowledge and consent required for grave sin, are rarely notorious by fact, in the external forum someone would rarely have to be considered as bound by censure without a declaratory sentence of the judge, unless the conditions were presumed. But where the delict itself prohibited under censure is notorious, the required conditions, especially knowledge and contumacy, are presumed in the external forum until it is juridically established that the delinquent did not incur the censure, unless only those acting knowingly and rashly are bound by censure by the law: for in this case knowledge of the law and contumacy must be proved even for the external forum.

Hence it can happen that a censure is incurred in the external forum, but is not present in the internal forum. Thus Catholics who, ignorant of the censure, entered marriage before a heretical minister need absolution for the external forum,¹ because knowledge of the censure is presumed in this forum until ignorance is proved before the judge; but in the internal forum they are immune from the censure because of ignorance of it.

¹ Holy Office, May 18, 1892.

I. Notion. Censure is a penalty by which a baptized man, delinquent and contumacious, is deprived of certain spiritual goods or goods annexed to spiritual things, until, withdrawing from contumacy, he is absolved (canon 2241, § 1). It is said:

1. Baptized, because the Church lacks jurisdiction over the non-baptized; against heretics and schismatics she can issue censures.

2. Delinquent and contumacious; these things will be explained more fully under II.

3. Until, withdrawing from contumacy, he is absolved. Namely, censure is a medicinal penalty, and therefore primarily intends the amendment of the guilty person; hence as soon as the delinquent withdraws from contumacy, he must be absolved (St. Alphonsus VII, 1).

Note. Censures, especially those latae sententiae, and most of all excommunication, are not to be inflicted except soberly and with great circumspection (canon 2241, § 2), "since, as the Council of Trent says,¹ experience teaches that if it is struck rashly or for light matters, it is rather despised than feared, and produces ruin rather than salvation."

II. A fuller exposition of the notion will show what things are required on the part both of the delict and of the delinquent, so that the penalty of censure may be decreed; and what things are required so that the delinquent may be absolved.

1. Requisites on the part of the delict. By censure there is punished only an external delict (n. 846), grave (n. 858), consummated (n. 858; St. Alphonsus VII, 31-34, 36; canon 2242, § 1). Note that a grave delict is required not only as to the external act, but also as to the internal act, so that whatever excuses from mortal sin also excuses from censure (n. 858), at least in the internal forum, because in the external forum malice is presumed.

2. The requisite on the part of the delinquent is contumacy (cited canon). Moreover:

a) If there is question of censures ferendae sententiae, one is contumacious who, notwithstanding the warnings mentioned in canon 2233, § 2 (n. 859), does not desist from the delict or refuses to do penance for the perpetrated delict with due reparation of damages and scandal (canon 2242, § 2).²

b) But to incur a censure latae sententiae, transgression of the law or precept to which the penalty latae sententiae is annexed suffices, unless the guilty person is excused from it by a legitimate cause (cited canon). It is disputed whether, in a case in which there is question of a censure which is not incurred unless the effect has followed, a transgression morally persisting until the effect has followed is required, so that the censure is not contracted by him who repents of the transgression before the effect. St. Alphonsus (VII, 40) and others affirm this, because a censure does not seem to be contracted by one who, at the moment at which according to the law it is contracted, is already no longer contumacious.

Note. Censure can also be issued against unknown delinquents (canon 2242, § 1), provided, however, that they are somehow determined; as happens, for example, in establishing censures latae sententiae. But a censure issued against an uncertain or indeterminate person would be invalid, for example: "I excommunicate one of the three authors of this crime."

3. The requisite for a delinquent to be absolved is that contumacy has ceased. Moreover, contumacy must be said to have ceased when the guilty person has truly repented of the committed delict and at the same time has given congruous satisfaction for damages and scandal, or at least has seriously promised it; but to judge whether the repentance is true, the satisfaction congruous, or the promise of the same serious or not, belongs to him from whom absolution from the censure is sought (canon 2242, § 3). Therefore the one absolving can sometimes require cautions, so that he may be certain of the serious conversion of the penitent.

Question. When does censure produce its effect, and to what extent is appeal or recourse admitted concerning a censure inflicted or threatened?

Response 1. Censures inflicted by judicial sentence carry execution with them as soon as they have been issued, and from them there is no appeal except in devolutive effect; likewise from censures inflicted in the manner of a precept there is recourse, but in devolutive effect only³ (canon 2243, § 1).

Response 2. But appeal or recourse from a judicial sentence or precept threatening censures, even censures latae sententiae not yet contracted, suspends neither the sentence or precept nor the censures, if there is question of a matter in which law does not admit appeal or recourse even with suspensive effect; otherwise it suspends the censures, the obligation of observing what is commanded by the sentence or precept nevertheless remaining firm, unless the guilty person has lodged appeal or recourse not only from the penalty, but also from the sentence or precept itself (canon 2243, § 2).

III. Multiplication of censure. Since by several titles someone can be deprived of the same good, "not only diverse censures, but even a censure of the same species, can be multiplied in the same subject" (canon 2244, § 1). Moreover, according to the adage, as many penalties as delicts, the Code establishes:

1. A censure latae sententiae is multiplied: 1° if diverse delicts, each of which carries a censure with it, are committed by the same or by distinct action (p. 716, IV, 1, 1°); 2° if the same delict, punished with a censure, is repeated several times, so that there are several distinct delicts (p. 716, IV, 1, 2°); 3° if a delict, punished with diverse censures by distinct Superiors, is committed once or several times (canon 2244, § 2, 1°, 2°, 3°).

2. A censure ab homine (inflicted) is multiplied if several precepts, or several sentences, or several distinct parts of the same precept or sentence, each inflicts its own censure (canon 2244, § 3).

IV. Division. Censure, as was said of penalty in general (n. 853), is determinate or indeterminate, latae or ferendae sententiae, a iure or ab homine. Besides, censures are divided:

1. By reason of the deprivation of goods, into excommunication, suspension, and interdict; concerning these separately below.

2. By reason of the power of remitting, some are reserved, others non-reserved (canon 2245, § 1). We shall speak specifically of reservation.

¹ Session 25, chapter 3.

² An unknown delinquent must be warned by edict before a censure is inflicted, according to the norm of canon 1724, compared with canon 1720, 1 and 2 (cf. also canon 1717, 3).

³ Recourse extends more broadly than appeal, since the former can be extrajudicial, but the latter cannot in present Law.

1144. D) Contumacious. For contumacy it is required that the delinquent know, at least habitually, even if he does not actually think about the prohibition and penalty, that something is prohibited by ecclesiastical law and under censure, and nevertheless freely act against the ecclesiastical prohibition.

But the following excuse from contumacy: a) grave fear, indeed even light fear when the censure is brought against those presuming, acting with rash daring, doing something spontaneously or knowingly or deliberately; b) ignorance of the law or penalty which is not affected, crass, or supine.¹⁸

¹⁸ Yet when a censure is brought against those who sin "rashly," "with rash daring," "knowingly," "deliberately," etc., even crass or supine ignorance excuses, but not affected ignorance. Cod. jur. can., 2229. - If there is question of a penalty ferendae sententiae, he is called contumacious who, having been canonically warned, perseveres in the delict (can. 2233, § 2).

1145. Various things to be noted. a) "Unless they are expressly named, Cardinals of the Holy Roman Church are not comprehended under a penal law, nor Bishops under penalties latae sententiae of suspension and interdict."¹⁹ Moreover those who hold the supreme principate of peoples, and their sons and daughters, or those who have the right of immediately succeeding to the principate, incur only penalties inflicted or declared by the Roman Pontiff.²⁰

¹⁹ Code, c. 2227, § 2.

²⁰ Code, c. 2227 and 1557.

b) In censures, the more benign interpretation is to be made.²¹ Hence censures brought upon the people do not bind the clergy; those brought upon the clergy do not bind the people, nor regulars who emit solemn vows, but more probably they bind religious of simple vows.

²¹ Code, c. 19, 20, 2219.

c) Someone can be simultaneously liable to several censures of different species (excommunication, suspension), or to several of the same species (for example, several excommunications): either because by the same or distinct action he has committed different delicts, each of which has a censure annexed; or because the same delict is punished by different censures by distinct Superiors; or because the delict punished by censure is repeated several times. - Censure ab homine is multiplied if several precepts or several sentences are violated.²²

²² Ibid., 2244.

d) In doubt whether a censure has been contracted or not, the censure does not bind,²³ unless there is doubt whether the penalty, inflicted by a competent Superior, is just.²⁴

²³ Can. 2233.

²⁴ Can. 2219.

Caia came for confession to Paul, a missionary priest in England, to whom she disclosed that in the preceding year in Italy she had stood by at a duel in order to encourage a friend fighting a duel. Caia further said that she had not been able to obtain absolution from the parish priest in Italy, since he affirmed that the case was reserved to the Pope. In answer also to Paul’s question, Caia replied that she knew the Church forbids every participation in a duel under penalties, but that she had performed a work of charity which it would have been inhuman to refuse; indeed, that she would do the same thing again in the same circumstances. Paul, however, wishes to know what he can and ought to do in the case. Hence it is asked: