Books forbidden by name (Can. 2318)

Defendentes——Also those who defend those same books or others prohibited by name by apostolic letters, such as Fénelon’s Explication des Maximes des Saints.

Legentes.—Those who read them without leave knowing that they are forbidden under censure.

Retinentes.—Retaining for any purpose whatever without leave. Canon 2322 III. Ad ordinem sacerdotalem non promotus si Missae celebrationem simulaverit aut sacramentalem confessionem exceperit, excommunicationem ipso facto contrahit, speciali modo Sedi Apostolicae reservatam; et insuper laicus quidem privetur pensione aut munere, si quod habeat in Ecclesia, aliisque poenis pro gravitate culpae puniatur; clericus vero deponatur. (One not promoted to the priestly order who simulates the celebration of Mass or hears a sacramental confession contracts ipso facto an excommunication reserved to the Apostolic See in a special manner; and further, if a layman, let him be deprived of any pension or office he may hold in the Church, and punished with other penalties according to the gravity of his fault; but a cleric is to be deposed.)

Preliminary Note. The word books in what follows must be taken strictly, so that small booklets, daily papers, etc., are excluded (n. 1114). The reason is that only those things which are said in book III, title XXIII, of the Code, and not those which are said in book V concerning books, are to be applied also to other publications (can. 1384, § 2). There is added that penal law must be interpreted strictly (can. 19).

I. They incur by the fact itself excommunication reserved to the Apostolic See in a special manner, once the work has been made public: publishers of books of apostates, heretics, and schismatics which defend apostasy, heresy, or schism; and likewise those defending the same books, or other books prohibited by name through apostolic letters, or knowingly reading or retaining them without due permission (can. 2318, § 1). Cf. the treatise on ecclesiastical penalties.

II. Authors and publishers who, without due permission, see to the printing of books of the Sacred Scriptures, or annotations or commentaries on them, incur by the fact itself excommunication reserved to no one (can. 2318, § 2). Cf. the treatise on ecclesiastical penalties.

1171. II. "When a work has been made public, the publishers of books of apostates, heretics, and schismatics which defend apostasy, heresy, or schism, and likewise those defending the same books or other books prohibited by name through apostolic letters, or knowingly reading or retaining them without due license."¹¹

¹¹ Code, c. 2318.

Here by the name of books are not understood manuscripts, newspapers, journals, periodical publications taken individually, books written by heretics of the first centuries...; true books of apostates and heretics are understood, not indeed if they merely contain heresy, but if they defend heresy; and books written by any author whatever, but condemned by name, with the title of the book expressed, under penalty of excommunication reserved to the Roman Pontiff, through letters given by the Roman Pontiff himself or in his name. - Those, however, are struck by excommunication who knowingly read, understanding what is written, or retain or publish or defend in any way these books. But those defend books who praise or protect their authors or doctrines precisely insofar as they defend or contain heresy or schism.

Bishops formerly, by force of Indult, had delegated power "of absolving from censures incurred on account of the retention and reading of prohibited books: with a suitable salutary penance imposed; and with the obligation remaining firm of handing over, according to law, either by oneself or through another, without any delay, and, insofar as it can be done, before absolution, the prohibited books which the penitent retains in his power." (Indult. S. Penit., n. 5). Today recourse should be had to the Holy See.

Argument of the chapter

Besides the obligation of conscience, which regards the penitential forum and was weighed by us above in n. 53, 61, the General Decrees are fortified by canonical penalties which are promulgated in the three articles of this chapter.

Moreover, two are latae sententiae, transferred here from the former law; but the third article establishes arbitrary penalties committed to the Bishop.

The clauses of conclusion follow those three articles; these no longer belong to Chapter V.

All and each who knowingly, without the authority of the Apostolic See, read books of apostates and heretics defending heresy, as well as books of any author prohibited by name through Apostolic Letters, and who retain, print, and in any way defend the same books, incur by the fact itself an excommunication reserved in a special manner to the Roman Pontiff.

Former law

125. By this article, in the same words, the Excommunication borne in the Constitution Apostolicae Sedis, n. 2, of the first series, is repeated. Therefore in itself it will receive a similar interpretation. Hence:

What "knowingly" means

1. Knowingly. By this word the case of any ignorance is excepted, even, probably, affected ignorance. Moreover the word is referred also to those retaining, etc.¹

Reading books. Whether periodic fascicles are books of heretics

2. Reading books, in a notable quantity. Cf. here above n. 57. But who are readers was said in n. 57, 50. Also before, n. 33 and following, we weighed what comes under the name of book, and in what manner periodic publications are to be regarded as books. From this, in order that they be judged to protect heresy as a book, it is required that the periodic publications themselves rather generally stain themselves with this vice.

What apostates are

3. Of apostates. We defined these above as those who entirely cast off the Christian faith externally and internally, whether they pass over to the errors of Mahomet, etc., or simply profess themselves to be perfect "free thinkers." Cf. Avanz., p. 8.

Heretics and a heretical book

4. And of heretics. It is necessary that the heresy be plainly established, either from the heretical sect to which the writer belongs, or, when the book is anonymous, or by an author hitherto Catholic, from manifest doctrine,² and proposed pertinaciously.

Therefore books of this kind are not those which principally belong to a Catholic author, although a heretic has appended scholia, unless these are the greater part of the book; nor those which report some text of heretics "even if you read with the mind of learning heresy." Laym.³ Cf. Piat,⁴ against Arndt.⁵

Nor books of infidels, Jews, schismatics, at least as such.

Nor are books of heretics which pertain to the first centuries of the Church, as now altogether harmless, comprehended here. Lehmkuhl, II, 923. Cf. above n. 66, where we transferred the same rule also to medieval heretics.

To defend heresy

5. Defending heresy. Not merely containing, or briefly defending as if while doing something else, but of set purpose, by bringing forward reasons. But it is not necessary that the subject matter of the book be religious. It is enough that the book defend one heresy in this way.

6. As well as books of any Author prohibited by name through Apostolic Letters. This clause requires:

Through Apostolic Letters

a) Apostolic Letters, or letters proceeding immediately from the Supreme Pontiff: a Brief, Bull, Encyclical, etc. Piat, on V. der Velden, p. 623.

Made by name

b) A prohibition made by name, that is, one by which a book is designated by its proper title. Yet a singular designation, for example of the author, is not demanded. Indeed, a generic indication of title seems to suffice. Hence B. P.⁶ judges that the clause is verified in the Constitution Ecclesiam, by which, in 1821, there were prohibited by Pius VII, under excommunication reserved to the Supreme Pontiff, "the catechisms of the Carbonari, the books by which they describe the things which are customarily carried on in their meetings, statutes, codes." But a disposition is not enough by which, for example, Innocent XI condemned all books and writings of Michael Molinos.⁷ Cf. Avanz.-Penn., Appendix III.

It is required that it be made under excommunication reserved to the Holy See

c) A prohibition under excommunication reserved to the Holy See. Thus the common opinion: Avanzini, Lehmkuhl, Bucceroni,⁸ etc. The reason is drawn from the end of the Constitution Apostolicae Sedis, by which this censure was borne. For Pius IX wished to narrow censures. Therefore it would in no way be likely that under the gravest censure (specially reserved) he prohibited books which his predecessors had condemned without reserved excommunication.⁹ Cf. Avanzini, cited place. Wherefore if, for example, you read without faculty the work of Lamennais, Les paroles d'un croyant, you will have committed no pontifical censure, since the apostolic letters by which it is reprobated contain none. The same is the case with the works of Jacob Frohschammer.

Those which were proscribed under another penalty latae sententiae have now been simply condemned, unless they are heretical and at the same time have defended heresy. Except those which, for the causes indicated elsewhere, have fallen from the Index.

d) Yet it is not necessary that those letters bear the penalty of excommunication specially reserved; otherwise the present clause would effect nothing special. Thus the authors.

e) Finally, the disposition affects future proscriptions equally with past ones.

Therefore in a few words: from article 47, those books which the Supreme Pontiffs formerly proscribed by name through apostolic letters under excommunication latae sententiae reserved to themselves are now prohibited under excommunication specially reserved.

What concerning future proscriptions?

Must it be said in the same way if certain books are hereafter condemned by the Supreme Pontiffs through apostolic letters by name? We think it must be said in the same way.

And Hollweck¹⁰ and Wernz¹¹ judge that in this article no times are distinguished. Nevertheless, since the legislator merely uses the past tense, while he could so easily have said prohibited or to be prohibited, the matter seems uncertain to us.

But if future proscriptions are touched, there is no cause why in these you should require mention of reserved excommunication, unless there is a cause on account of which the Pontiff must be judged to have been unwilling to refer himself to the present article, but to pronounce absolutely concerning the sanction.

What books are touched by this clause?

N.B. Because other apostolic letters by which works are condemned either do not bear the penalty of reserved excommunication, or indeed bear it but one afterwards removed, or do not indicate books by name, in reality this clause today has force only concerning 82 books which in the eighteenth century were proscribed by apostolic letters,¹² concerning the work of Fr. Vigil,¹³ and concerning two books of J. Nuyts,¹⁴ which Pius IX condemned by Briefs of June 10 and August 22, 1857. Wherefore in sentences of this kind inquiry must be made only from the beginning of the eighteenth century.¹⁵

Yet it easily happens that, on account of another cause, because they have been written by a heretic and defend heresy, they are prohibited by law under the penalty of excommunication specially reserved.

When those retaining are punished

7. And retaining the same books: knowingly and in that manner in which it is prohibited under grave obligation. Cf. above n. 51 and 58.

Who those printing are

8. Printing, in the commentaries on the Constitution Apostolicae Sedis, were understood as all who cooperate proximately, by mortal cooperation, toward "printing." Cf. Lehmk., II, 924.

But, from the general canon which we proposed at the beginning, we are not forbidden, the former law having been put aside, to explain this censure according to the benignity of the present Constitution. Now it seems sufficiently discordant that the same word "Printing" be taken in a different sense in two articles, of which one excepts the other. But in article 48, unless we wish, without a compelling reason, to interpret the words more strictly than formerly, the printer is he who undertakes the work to be printed: namely the impresser, whom in French we properly call l'Imprimeur. From another side it agrees very much with our benign law not to strike with censure those workers who cannot pass judgment on the books toward whose printing they cooperate, will for the most part be ignorant of the penalty borne, and not rarely are excused from contumacy by moral necessity. Wherefore the sentence of Hollweck¹⁶ is not displeasing to us, according to which those printing are only the editor and the "impresser." The corrector, however, will be punished as reading. With us concerning workers is Boudinhon.¹⁷

Those defending. Inefficacious defense suffices

9. And defending in any way. Cf. n. 48 and 55.

Observe, since the censure strikes readers, retainers, printers, and defenders in the same manner, namely directly and principally, defense is considered as a delict consisting in itself. Wherefore it is not necessary that the effect of the defense have been obtained, or that in reality, for example, you snatch the book from the flames. The act is judged consummated by the defense itself. Cf., for example, Lehmk., cited place.

What force special reservation has

10. By the fact itself an excommunication specially reserved to the Supreme Pontiff. Moreover this special reservation operates:

a) So that neither Bishops can for this case, even an occult one, use the faculty which they hold from chapter Liceat of the Council of Trent; nor is the case judged contained in the faculty simply given of absolving from reserved cases.

b) So that he who without faculty shall have presumed to absolve someone from that excommunication commits an excommunication simply reserved to the Holy See from the Constitution Apostolicae Sedis (after the first series).

c) So that one absolved, even in danger of death, by an inferior (that is, by one who did not have at least delegated faculty), must, under the penalty of falling again into censures, after he has recovered, within a month either seek a new absolution from one having faculty, or, either himself by himself or through the mediation of a Confessor, have recourse by letter to the Holy See and obey its commands.

¹ Cf. Hollweck, Die kirchl. Strafgesetze, sec. 107.

² Lehmk., II, n. 923; Bucc., II, p. 339; B. P., t. 7, n. 424.

³ L. 2, tr. 1, chapter 15, n. 1.

⁴ On V. der Velden, p. 621.

⁵ P. 124, 3, n. 103.

⁶ De Cens., t. 7, 456. Yet against this, Piat, cited work, p. 625, because works published after this Bull cannot be said to be prohibited by name through it.

⁷ Yet this cause has that peculiar thing, that there is only one work of Molinos, Guida spirituale, besides two little works which afterwards were published together with the former work. Nevertheless we judge that the nominal indication is lacking which is required for incurring excommunication. The propositions of the work were proscribed as heretical; but since the writer retracted the errors, the work does not seem to be that of a heretical author.

⁸ Appendix III, pp. 126, 129; II, n. 923; p. 340.

⁹ Nothing prevents our present Constitution, although in itself it softens the former laws, from increasing their sanction accidentally. From September 5, 1757 to November 11, 1784, by seven letters in the form of a Brief, works were proscribed under the penalty of reserved excommunication latae sententiae for laymen, and of suspension latae sententiae for clerics. In the same way, on August 2, 1851, two works of J. Nuyts were proscribed. That suspension is suppressed by our law; but, as it seems to us, now for all, even clerics, who unduly read those works, there remains, from our article 47, the penalty of excommunication which is specially reserved to the Supreme Pontiff.

¹⁰ Das kirchl. Bucherverbot, in this place.

¹¹ Ius Decretal., t. 3, n. 121, note 117.

¹² Cf. Hilgers, Der Index, p. 90 and following. He diligently explored this matter and afterwards accurately exhibits it in his valuable chronological Index of proscribed works (same place, pp. 418, 475). The same warns that those books can be found with difficulty, so that they can now do little harm.

¹³ Defensa de la autoridad de los gobernios y de los obispos contra las pretensiones de la curia romana (6 vols.).

¹⁴ Institutiones ecclesiasticae; Tractationes in ius ecclesiasticum universum.

¹⁵ Thus Avanzini, cited work, pp. 130, 131.

¹⁶ Cited work, pp. 48, 49, notes 1 and 2.

¹⁷ Cited work, p. 304. Wernz, n. 121, note 118, seems to favor us sufficiently.

Those who, without the approval of the Ordinary, print books of the Sacred Scriptures or annotations or commentaries on the same, or cause them to be printed, fall by the fact itself into an excommunication reserved to no one.

Difference from the Tridentine censure

126. 1. Thus, by expressing it more clearly, the Tridentine excommunication is renewed,¹ which nevertheless struck only anonymous books, while, according to interpreters of the Constitution Apostolicae Sedis (which confirmed the same censure), books which bear before themselves the name of the author are now also comprehended.

It is necessary only that the approval of the Ordinary was given

2. Without the approval of the Ordinary. It is enough, for escaping the censure, that it has been given, although perhaps not in writing nor appended in the book. And although regulars besides need the license of their Prelate, they do not commit the excommunication if the book is approved solely by the Ordinary of the place.

Who are printing?

3. Printing, in the present case, seem to be only those who either are owners of the typography or sustain their person, so that they conduct the matter in their name. For the Tridentine text in the cited place contains commands and penalties which cannot be accommodated to workers, etc. Cf. Pennacchi, Ballerini, Arndt,² Hollweck,³ against Piat (on Van der Velden), p. 861.

Causing to be printed

4. Causing to be printed: as the editor of the book, he by whose care the book is printed; not necessarily the author, for example, if he merely gave or sold the manuscript, caring nothing for the printing.

Who absolves from this excommunication?

5. Excommunication reserved to no one. Therefore every Confessor can absolve from it, provided that contumacy has ceased.

¹ Session 4 (Decree concerning the edition and use of sacred books). As Hollweck, Die Strafgesetze, etc., sec. 108, 1, wishes, also for this reason it is established a little more severely than in the Council of Trent, because the Tridentine decree did not clearly comprehend Sacred Scripture itself.

² Avanz.-Penn., t. 2, appendix 38, p. 232; note 62 on Gury, II, 789; cited work, pp. 246, 247, n. 180.

³ Cited place. This sentence, which earlier, by I know not what law, R. D. Van Coillie, Collat. Brugg., p. 551, had accused of too much benignity, he sincerely confessed in the Commentary in this place to be sufficiently pleasing to himself.

But those who have transgressed the other things which are prescribed by these General Decrees should, according to the diverse gravity of guilt, be seriously admonished by the Bishop; and, if it shall seem opportune, they should also be coerced by canonical penalties.

Arbitrary penalties

127. 1. This article, against transgressors who have violated other precepts of the General Decrees than those which are sanctioned by excommunication latae sententiae, establishes arbitrary penalties, since judgment concerning their opportuneness and gravity is permitted to the discretion of the Bishop, provided that they are canonical, that is, received in the ecclesiastical forum, and that a congruous admonition has first been made.

Sanction of particular Decrees

2. Although those penalties seem to sanction the General Decrees alone, particular decrees are fortified by the same penalties, since they prohibit individual books "under the penalties declared in the Index of forbidden books."

1. To n. 30. Concerning works which, every refutation omitted, set forth and report false dogmas, destructive of religion or morals, as the inventions and thoughts of others, Benedict XIV has words full of just severity in the Constitution Sollicita ac provida, sec. 21. Cf. p. 196.

2. P. 87, l. 19, read Clement XII.

776. Penalties against transgressors. - Penalties are also inflicted against some transgressors, namely, according to can. 2318:

1. "They incur excommunication reserved in a special manner to the Apostolic See by the fact itself, once the work has been made public: publishers" (that is, those who make the book public and care for its dissemination, as ordinarily are the author and the owner of the printing house) "of books of apostates, heretics, and schismatics" (but not of Catholics) "which defend apostasy, heresy, or schism" (by added arguments); - "and likewise those defending the same books or others" (of any writer whatsoever, even a Catholic) "prohibited by name through Apostolic letters" (in the form of a bull, brief, encyclical, etc., not through a decree of the Index alone, but by the Supreme Pontiff himself), by name (so that the proper title is expressed and not only the name of the author), "or knowingly" (so that ignorance excuses, even crass ignorance, yet not affected ignorance) "reading or retaining them without due permission."

2. "Authors and publishers who, without due permission, see to it that books of the Sacred Scriptures or annotations or commentaries on them are printed, incur by the fact itself excommunication reserved to no one."

In these, unlike title XXIII, can. 1384, § 2 (n. 773), books are to be understood in the stricter sense, namely, writings published by type which consist in some volume and are not so slight in bulk and weight that they are usually called by another name rather than books. Therefore newspapers are not comprehended, - nor periodicals or small fascicles, unless these are bound into one (Holy Office, January 3, 1892).