By What Power Books Are Prohibited

By the Holy See, through what organs

62. Some books are prohibited by the Holy See and for the universal Church (art. 45): this can be done both by the Supreme Pontiff himself, or through Apostolic Letters, and by the competent Roman Congregation, that is, either by the Holy Office or by the Congregation of the Index. For the Congregation of the Holy Office sometimes still exercises this office of proscribing books, which had been entrusted to it by Paul III in the year 1542 as to the supreme tribunal of faith and morals; nevertheless, books are generally condemned through the Sacred Congregation of the Index, which, instituted by St. Pius V, is called, as it were, the assistant of the Holy Office. Finally, it can happen that a book, from its special subject matter, pertains to the province of some other Congregation; thus books on liturgy, on the cult of the saints, pertain to the Congregation of Sacred Rites. In which case, this Congregation also will be able to prohibit a harmful book.¹

¹ Not rarely do the Roman Congregations thus have cumulative jurisdiction.

By Ordinaries

63. Others, however, are prohibited by the Ordinaries of places and for their own diocese. A certain similar faculty belongs to a regular Prelate as regards his own subjects, at least from his dominative power. For he cannot make an authentic judgment concerning a book. Pennacchi, op. cit., n. 67, end.

Office of local Ordinaries

Moreover, the zeal of Ordinaries is stirred up in this matter both by article 21 of the Constitution and especially by article 29. For here is repeated the command, already contained in the mandate of March 26, 1825, which Leo XII added to the Decree of the Sacred Congregation of the Index, and inculcated again by Pius IX, August 24, 1864, through the letters of the Sacred Congregation of the Index Inter multiplices,¹ "that they strive to proscribe books and other harmful writings published or spread in their Diocese, and to remove them from the hands of the faithful" (art. 29).

They can proceed also as Delegates of the Apostolic See

To what this clause looks

At the same time, by the same article, there is renewed the faculty given through the aforesaid letters Inter multiplices, by force of which the Ordinaries of places can proceed in this matter even as delegates of the Apostolic See. This faculty looks to this: that no one "under the pretext of defect of jurisdiction or under some other sought-out color presume with rash boldness to despise the judgments and proscriptions of Ordinaries, or to hold them as not issued" (letters Inter multiplices).

¹ The document is set forth in Collectanea Prop. Fidei, n. 1889; Avanzini, op. cit., I, pp. 136, 137; Arndt, op. cit., n. 165, pp. 209-211; Pennacchi, op. cit., n. 67.

Whether exempt Regulars are held by the prohibitions of Bishops

64. Hence you will ask whether or not exempt Regulars are held by Episcopal prohibitions.

Opinions of those who affirm, and arguments

Most affirm that they are held. And some indeed subject Regulars in this matter even to the ordinary jurisdiction of the Bishop, either because these Regulars do not demonstrate their exemption, or because this is a cause of faith, in which Regulars are subject to the Bishop.¹ So Pennacchi,² Ciolli.³

But others argue rather from the power of proceeding even as delegated by the Holy See, which is confirmed to Bishops by article 29 of the Constitution Officiorum. So Palmieri,⁴ who acknowledges that he is moved by this reason alone, and Wernz.⁵

But neither group seems to us to establish the matter.

General force of exemption

For Regulars properly so called - and also members of certain Congregations, for example of the Congregation of the Most Holy Redeemer - have a general privilege of exemption which, as commending the authority of the Supreme Pontiff, receives a broad interpretation;⁶ and the houses of Regulars, by a fiction of law, are as if torn away from the Diocese.⁷ But outside the diocese, of himself, a Bishop has no power. Therefore that principle has force which we remember was handed down in the school of law at Rome: as regards jurisdiction, the Bishop has no power over Regulars except what is expressly granted to him in the law.⁸

But the contrary assertion of the distinguished Pennacchi, by which Regulars would have to bring forward an Indult concerning each exemption, plainly overturns the accepted notion of the exemption of Regulars, suppresses the generality of the privilege, and is repugnant to authors and to the Constitution Romanos Pontifices itself.⁹ For they propose the causes in which Regulars are subject to Bishops as exceptions and temperaments of the privilege that has been made. Nor do Doctors omit carefully to prove the individual derogations.

Moreover, among the exceptions, which nevertheless they have collected with most diligent care, the present case is nowhere indicated.¹⁰ Yet the doctors do not pass over this matter, since they expressly teach that Regulars are subject to Bishops in the publication of their own books, which, equally as those by seculars, are to be subjected to the previous censorship of the Bishop.

Nor is a stronger argument sought from the kind of prohibition which in some way concerns faith. For Regulars are subject to Bishops in causes of faith only insofar as judicial cognizance of causes which pertain to the Holy Office belongs privatively - that is, with regular Superiors excluded - to Bishops, who are born Inquisitors.¹¹ But from this it does not follow that Bishops have a general power of commanding things which are thought to benefit faith.

But that regular Superiors have their own role in this matter of books is clear from the authority which is given them by articles 15 and 36; it is clear from the Brief of promulgation of the new Index, by which Leo XIII, September 27, 1900, equally commits to Bishops and to Superiors of Regulars the care of urging the laws of the Index, each for his own subjects.

Force of the clause: "also as delegates of the Apostolic See."

Thus far concerning the former opinion opposed to us.

But those later authors who draw reasons from the delegated power of Bishops do not seem to bring us stronger arguments.

Certainly, Bishops need delegated power in order to be able to give precepts to Regulars as such.

The Holy Synod of Trent granted this power to them several times in the chapters De Reformatione. It also permitted Bishops to establish certain things concerning exempt persons and Regulars "even as delegates of the Apostolic See," as when it gave them the mandate of visiting monasteries in which regular observance does not flourish.¹²

But by what law do you infer from this: whenever this faculty of proceeding also as from Apostolic delegation is attributed to Bishops, any general act of theirs obliges exempt persons and Regulars? By what canon is this declared? Reverend Father Wernz himself¹³ does not deny the ambiguity of that clause. He brings forward three interpretations of it. "It can scarcely be denied," he himself continues, "that there are not lacking ancient and new authors who ... less rightly restrict that word also to signifying cumulative jurisdiction alone (over one's own subjects)." These, therefore, at least tacitly, disagree from Fagnani, whose support Father Wernz uses. But what of that interpreter of law? In chapter Ad audientiam 3, De ecclesiis aedificandis (III, 48), nn. 46, 47, 54, he sees contained in the clause "also as delegates" a delegated power by which Bishops can also dismember parishes subject to Regulars.

But if we wish to transfer this into our argument, we shall say by parity: by force of that clause the Bishop will be able to proscribe with a censorial mark the books of all, even of exempt persons and Regulars. But Fagnani himself has no universal opinion by which he contends: a Decree which the Bishop issues even as Delegate of the Apostolic See always affects exempt persons and Regulars.

Indeed, does not Fagnani himself, whom we know to favor the causes of Regulars little, nevertheless in chapter 19, De officio iudicis ordinarii (I, 31), n. 5, deny that a Bishop delegated by the Pope can proceed against exempt persons, if no mention of exemption has been made in the letters; and testify that this is the doctrine of Hostiensis and John Andrew?¹⁴ Moreover, in our age, neither De Angelis¹⁵ nor Santi¹⁶ attribute to this obscure clause, "also as delegate of the Apostolic See," efficacy of itself to widen the spaces of the ordinary power of the Bishop, but rather efficacy of warding off whatever impediments could obstruct the exercise of this authority.

Therefore we shall say thus: that clause gives Bishops a more expedited power and removes obstacles which could impede the end for which the delegation was made.

Was perhaps extension to Regulars demanded here by the intended end?

By no means. In the present case, there could of itself have been intended equally a greater and more certain efficacy of proscription for touching the books of all, rather than an extension of episcopal prohibition to exempt persons who are entrusted to the care of other Prelates. Now: a) if we consider the letters Inter multiplices, by which that faculty was first conferred, Pius IX, through these letters, stirred up Ordinaries to exercise their power of proscribing books, so that harmful writing might be met more swiftly in individual dioceses when evil was pressing.¹⁷ And once the necessity of prompt coercion had been declared, he immediately connects the granted delegation.¹⁸ But what could the exemption of Regulars do against this swift coercion, whose obstacles he wished to remove? Are not Regulars, outside rare cases of necessity, prohibited from dangerous readings by their own Superiors? But various pretexts of another kind could stand in the way, for example the lack of the condition required by Clement VIII (below here), approval received from one's own Bishop, etc., on account of which they might perhaps contend that jurisdiction was lacking in the Bishop for proscribing the book itself, and might hold his judgments "as not issued." And in truth, questions were being raised concerning the power of a Bishop to punish certain books. Cf. Albitius, De Inconstantia in Fide.¹⁹ And difficulty could be made by the declaration of Clement VIII, by which he had declared concerning this faculty of Bishops: "the case will be very rare, nor is this power to be used without a most grave cause, and the Holy See must be made more certain concerning its use."²⁰ Cf. also the letters of Propaganda Fide, August 11, 1855.²¹ Besides, when the exemption of Regulars is the cause or occasion of a delegation of this kind, the exemption is generally expressly derogated from. b) If we look to the present article 29, the delegation is joined with the indicated office, by which Bishops must see to it that harmful writings "be removed from the hands of the faithful." Who are those faithful if not diocesan subjects?

For this reason, until the Holy See defines the contrary, we judge that the opinion can be retained which makes Regulars immune from Episcopal prohibitions. With us Péries,²² Génicot,²³ Oietti,²⁴ Piat,²⁵ Van Coillie,²⁶ and practically Sleutjes²⁷ defend this. At the same time, however, Regulars, according to their prudence and humility, will beware lest by openly reading those things which the Bishop has prohibited, or even by openly receiving them within their houses, they be a scandal to diocesan subjects, or seem by some ostentation of immunity to undermine the authority of the Bishop.²⁸

¹ We omit certain futile reasons, as when they say that exemption ought not give a privilege of running into danger in faith or morals. By a similar reason you could demonstrate that the prohibition of one Bishop binds neighboring dioceses and perhaps the whole world. But the question looks to this: to which Prelate belongs the care of providing for the safety of Regulars. And if, from article 26, the faculty of reading books prohibited by the Holy See does not contain the faculty of reading books condemned by Bishops, it is clear that this regards those who are held by the prohibition of Bishops.

² Op. cit., n. 67.

³ N. 61, p. 60.

⁴ Op. cit. on articles 26 and 29.

⁵ Loc. cit., n. 111, note 82.

⁶ From the general principle of St. Alphonsus, Appendix De Privilegiis, n. 8. Cf. Suarez, De Legibus, book 8, chapter 27, n. 7.

⁷ Constitution Romanos Pontifices of Leo XIII, beginning.

⁸ Cf. Piat, Praelectiones iuris regularis, vol. 2, pp. 195, 196, question 9, end.

⁹ Loc. cit.

¹⁰ Even in recent catalogues and after Apostolic delegation has been granted. Cf., for example, Piat, Praelectiones iuris regularis, vol. 2, pp. 202-205; Oietti, Synopsis rerum moralium et iuris pontificii, s.v. Exemptio.

¹¹ A cause of this kind was the suspicion of heresy which those reading books of heretics incurred, but not those reading obscene books. Cf. Albitius, De Inconstantia in fide, chapter 30, nn. 414 and 417, 418.

¹² Session XXI, chapter 8, De Reformatione.

¹³ Ius Decretalium, vol. 2, n. 696.

¹⁴ Even in a favorable matter, it was much doubted whether or not a Bishop could aid Regulars by faculties delegated to him of dispensing, etc. Besides, the jurisdiction of a Legate is delegated and of itself is not extended to Regulars.

¹⁵ Praelectiones iuris canonici on book 1, title 29, n. 2.

¹⁶ Praelectiones iuris canonici on the same place, n. 3.

¹⁷ Cf. letters Inter multiplices.

¹⁸ For thus it states: "If due obedience responds to these [exhortatory letters], most grave evils will be removed, especially in those dioceses in which the necessity of prompt coercion is urgent. But lest anyone under the pretext of defect of jurisdiction or under some other sought-out color ... His Holiness has granted ... that in this matter they proceed also as delegates of the Apostolic See." Nor does he say under the pretext of exemption, as would have been natural if he had been thinking of Regulars; but he uses those words which are easily referred to jurisdiction lacking absolutely, or as regards books.

¹⁹ Chapter 30, nn. 164-186.

²⁰ Declaration of Rule X, related by Albitius, Inconstantia in Fide, n. 186, and by Arndt, op. cit., n. 163.

²¹ Collectanea C. Prop. Fidei, n. 1886.

²² Op. cit., p. 164.

²³ Op. cit., I, n. 451.

²⁴ Analecta Ecclesiastica, 1898, p. 383.

²⁵ Nouvelle Revue Théologique, vol. 31, pp. 572-582.

²⁶ Op. cit., p. 27.

²⁷ De prohibitione, p. 18.

²⁸ But we deny that this scandal can scarcely be avoided, as Reverend Father Wernz thinks; for even without scandal there are held in the houses of Regulars books proscribed by the Holy See. Nor must they constantly manifest the faculty they have.

777. Those who can prohibit books are: the Supreme Pontiff; the Sacred Congregation of the Holy Office, to which the Index of books now pertains, per se; per accidens, other Congregations, books concerning matter competent to them; - particular Councils; - Ordinaries of places1 (can. 1395). Hence can. 1403, § 1:

"Those who have obtained an apostolic faculty of reading and retaining prohibited books cannot for that reason read any books whatsoever proscribed by their own Ordinaries, unless in the apostolic indult there has been made for them an express power of reading and retaining books condemned by any persons whatsoever."

Likewise, those who have obtained this general permission of reading books entered in the Index, or the faculty of granting it, cannot for that reason read, or grant a general permission of reading, writings prohibited by the motu proprio of the Supreme Pontiff, as is clear from a recent declaration for the very well-known prohibited newspaper: L'Action francaise, years 1927-39; but those must obtain an altogether special permission.

Those who have prohibited books can give permission for reading, as can their superiors and those who are delegated by them to this. Hence Ordinaries per se do not have power to grant a general permission of reading books condemned by the Apostolic See, but only if they receive a special faculty; nevertheless in this matter can. 1402 must be observed:

"§ 1. Ordinaries can grant to their subjects, as regards books prohibited by the law itself or by decree of the Apostolic See, permission for individual books only and in urgent cases only.

§ 2. But if they have obtained from the Apostolic See a general faculty of permitting their subjects to retain and read proscribed books, they are to grant it only with selection and for a just and reasonable cause."

This faculty of reading, since it is a personal privilege, has force everywhere.

1. "Also the Abbot of a monastery sui iuris and the supreme Moderator of an exempt clerical religion, with his Chapter or Council, can prohibit books to his subjects for a just cause, and the same, if there is danger in delay, can be done by other major Superiors with their own Council, yet under this law, that they refer the matter as quickly as possible to the supreme Moderator" (can. 1395, § 3).