The Author of Censure

11. Who can impose censures. He can impose censures who has either ordinary or delegated power for this.

1. Ordinary power is had by all and only ecclesiastical superiors having jurisdiction in the external forum.

a. The supreme pontiff has it over all the faithful, both taken collectively (diocese, province) and taken individually; he indeed receives this power immediately from Christ; all others participate in it from the supreme pontiff.

b. Apostolic legates have it in the territory assigned to them.

c. Bishops, archbishops, patriarchs have it over their subjects; however, archbishops and patriarchs cannot bind the subjects of their suffragans by censures; an episcopal vicar, who constitutes one tribunal with the bishop; when the see is vacant, the vicar of the chapter, who succeeds the bishop in jurisdiction, and a fortiori the chapter itself before the vicar has yet been elected.

d. Cardinals have it in the churches of their title.

e. A general council has it over the whole Church, and a provincial council over its province.

f. Abbots having quasi-episcopal jurisdiction have it.

g. Superiors of regulars (generals, provincials, locals) have it over their subjects from a privilege of the pontiff attached to their office,¹ yet according to the statutes of their order.

Parish priests do not have the power of imposing censures, because jurisdiction in the external forum does not belong to them.

2. Delegated power is had by all and only clerics to whom this has been committed by those having ordinary power.

Clerics: because all and only clerics are capable of ecclesiastical jurisdiction, which is required for imposing censures, unless by positive law they have been declared incapable of ecclesiastical jurisdiction, as married clerics have been declared.² Wherefore all lay persons and women, even abbesses, are excluded from the power, both ordinary and delegated, of imposing censures.

¹ C. Quum in ecclesiis 10. De maioritate et oboedientia (I. 33).

² C. Clerici un. De clericis coniugatis (III. 2) in 6°.

12. Conditions required on the part of the author. In order that an ecclesiastical superior can validly impose censures, there is required:

a. That he be in possession of reason and have the will of binding him against whom he imposes the censure: for to impose censure is an act of jurisdiction, which has its whole force from an act of the will. Wherefore a censure imposed by a drunken man would be null.

b. That he act freely, not by compulsion.

A censure carried from grave fear must of itself be called valid, because an act done from grave fear is of itself valid, unless it is annulled by special positive law; but a censure carried from fear is not annulled by positive law. Nevertheless the case must be excepted in which the one imposing the censure would have pronounced it only externally, without internal intention.

c. That he exercise power within the limits of his jurisdiction: for contentious jurisdiction cannot be exercised outside one's own territory.

Therefore a bishop existing outside his own diocese cannot impose censure, not even upon his own subject, unless he has obtained the consent of the bishop of the place in which he is found.

Nevertheless several cases must be excepted, in which a bishop, even existing outside the diocese, can impose censure:

a. If the censure is imposed not by way of a particular sentence, but by way of statute for guarding against future crimes.

b. If the censure is indeed imposed by way of sentence, which nevertheless does not need cognition of the cause, either because the contumacy is manifest, or because the cause has already been known in one's own territory.

c. If the bishop has been unjustly expelled from his own territory.¹

d. That he admonish the delinquent concerning the censure to be inflicted: for censure is imposed upon a contumacious person; but that contumacy may be established, a prior correction is required.

According to the diversity of censures, a diverse admonition is required.

a. In censures of a sentence already passed for future delicts, likewise in censures which are attached to some delict as of a sentence to be passed, legal admonition suffices, which consists in the law promulgated with the censure added: for a known law which threatens censure is judged continually to admonish subjects concerning their obligation and concerning the penalty to be incurred by transgressors.

b. In a censure which no law threatens, and which therefore is inflicted by man for a past or present delict, a canonical or express admonition is required, and indeed a threefold one with some interval of time (at least two days) between the individual admonitions. Nevertheless a single admonition suffices, provided it is expressed that it is peremptory, or that it avails for three. But in this case six days must intervene between the admonition and the infliction of the censure, unless the necessity of the fact advises otherwise.²

Note. A censure unjustly inflicted does not oblige in conscience, whether it is unjust because of defect of fault or because of defect of proof. Wherefore one unjustly censured is not bound to observe the censure in secret; but publicly, because otherwise it cannot be done without scandal, he is bound so to conduct himself as if he were bound by censure.

¹ Regular superiors can bind their subjects by censure by way of particular sentence wherever they are staying, because their jurisdiction is chiefly personal.

² C. Constitutionem 9. De sententia excommunicat. (V. 11) in 6°.

Who can impose censures? By ordinary law, every and only ecclesiastical superior having ecclesiastical jurisdiction in the external or contentious forum can impose censure, whether ordinary or delegated, namely the Pope and a General Council with respect to all the faithful; Cardinals in the churches of their titles; Primates and Archbishops, both in their own dioceses and in the dioceses of suffragans during the time of visitation, and also when there is question of a case brought to their tribunal, because then they have jurisdiction over the suffragans; Bishops in their dioceses, provided they have been elected and confirmed, although not consecrated; Legates of the Apostolic See in the provinces of their legation; Vicars General of Bishops, for they constitute one tribunal with the Bishops themselves; the Chapter, when the see is vacant and before the election of the Capitular Vicar, who afterwards enjoys such power exclusively; abbots, generals, provincials, rectors, conventual priors, guardians, etc., of religious orders with respect to religious subject to themselves; and all those to whom that power is specially committed by delegation from the aforesaid persons.

Therefore by common law both lay persons and all women, even abbesses, are excluded from this power, both ordinary and delegated. Likewise parish priests, since they do not have ordinary jurisdiction in the external forum, but only administration for the right ordering of the parish, do not have this faculty. As regards delegated power, this ceases with the death of the one delegating, when there is question of a case of justice, unless the case has already been begun by the delegate at least through citation. But one delegated to impose censures cannot subdelegate another, unless he has had express permission from the one delegating, or unless he is delegated at least for any causes whatsoever, or by the Roman Pontiff. CC. Perniciosa 1, Cum ab Ecclesiarum 3, Pastoralis 11, sec. Praeterea, Conquerente 16, Grave gerimus 19, de Off. iud. ord.; C. Cum Episcopus 7, e.t., in VI; C. Transmissam 15, de Elect.; C. Si pro debilitate, de Off. Deleg.; CC. Cum in Ecclesiis 10, His quae 11, de Maior. et obed.; C. Ea quae final, de Statu Monach.; C. Quaerenti 20, de Verbor. signific.; C. Cum medicinalis 1, de Sent. exc., in VI; St. Thomas, Suppl., q. 22, aa. 1, 2; Schmalzgrueber, nn. 3, 12-21, 40; Engel, nn. 12-15; Pichler, Ius Canonicum, book 5, title 39, nn. 4, 5; Lugo, Resp. Mor., book 6, disp. 6; E.M.

What is required so that an ecclesiastical superior can impose censures? It is required: 1. That he be possessed of reason; indeed that he have the intention of binding him against whom he imposes the censure. The reason is that to impose censure is an act of jurisdiction, which has its whole force from the interior will. 2. That he have jurisdiction free as regards its use. Hence an excommunicated, suspended, heretical, or schismatic Bishop cannot impose censures; the same is to be said of his vicar. Yet an occult heretic or excommunicated person validly imposes censures, although illicitly, because for the public good, unless he is to be avoided, the Church preserves jurisdiction for him. Indeed there are not lacking those, and it seems today the common opinion, who hold that even one publicly excommunicated validly imposes censures if he has not been denounced by name, or if he is not a public striker of a cleric from the Extravagant of Martin V, Ad evitanda, where it is sanctioned that a tolerated excommunicated person is not to be avoided in those things which pertain to public office, nor even by those who know this. L. 12; St. Thomas, Suppl., q. 22, a. 3. 3. That the one imposing censure act freely, not under compulsion. But whether a censure imposed from grave fear is valid, some deny, others more truly affirm: because an act done from grave fear is of itself valid unless it is invalidated by special positive law. But a censure imposed from fear is not invalidated by positive law. Therefore. Schmalzgrueber, n. 23; L. 12; E.M.

Can a Bishop impose censures if he is outside the diocese? R. Negatively. For no one can exercise contentious jurisdiction in another's territory. Yet the following cases are excepted: 1. If the censure is imposed not by way of sentence, but by way of precept or statute, for preventing future crimes. 2. If the censure is imposed by way of sentence which nevertheless does not need cognizance of the case and judicial commotion, either because the contumacy is manifest, or because the case has already been known in his own territory. If it needs judicial commotion, it is necessary that permission be given by the Ordinary of the place and that the parties consent; for no one unwilling can be drawn outside his own territory. 3. If the Bishop has been unjustly expelled from his own territory, for then permission sought from the Ordinary of the place suffices, although not obtained. C. Novit 7, de Off. leg.; Clementine, single chapter, de For. comp.

Can a Bishop existing in his own diocese impose censure on a subject existing outside the diocese? A Bishop, existing in his own diocese, can bind by censures through sentence a subject existing in another diocese, both for a crime committed in his own diocese and also if the subject commits a delict outside the diocese, but there is question of a matter which is in it, as if clerics who do not come to the synod are excommunicated. Nor indeed does it stand in the way that citation cannot be made outside the territory; for then it suffices that the guilty person be cited in his own house or in a public place. Likewise if a Bishop by special precept prohibited some delict to someone under censure, the absent person incurs this censure. For the precept is personal. Therefore, since a subject outside the territory is bound by the precept, he is also bound by the censure. Thus St. Alphonsus, n. 23, who calls the denying opinion probable when someone commits a delict outside the territory of the one administering law, and adds: But it is certain from C. Ut animarum 2, de Const., in VI, that if the Bishop has previously given no precept to the subject under penalty of censure, he cannot punish him with censure if he commits a delict in another diocese. And the same must be said if he commits a delict in an exempt place, because in that place he remains as if he were in a place outside the diocese, from C. Cum Episcopus 7, de Off. ord., in VI; C. Volentes 1, de Priv., ibid.; Clementine Archiepiscopo 2, e.t.

Through sentence or special precept: for if the prohibition has been made by territorial statute, a censure imposed on delinquents does not affect one existing outside the territory of the one establishing the censure, as is expressly decided in C. Ut animarum 2, de Const., in VI. But regular prelates can bind their subjects with censures in whatever place they exist, because their jurisdiction is more personal than territorial. L. 20; Engel, n. 31; La Croix, book 7, n. 28; Pichler, Ius Canonicum, book 7, title 39, n. 6.

Can a Bishop bind by censure another's subject committing a delict in his diocese? Pilgrims probably, according to Lugo and others, do not incur censures issued by the special law of some place; for they are exempt from the very obligation of observing the laws of that place. But if there is question of censures issued by man through sentence, they can indeed be bound by censures by the Bishop of the place after they have committed a delict in that place by violating common law, and not only the law of his diocese, and after the Bishop has cited them, yet only if that common law prescribes or prohibits something under excommunication and other penalties to be inflicted by an ecclesiastical judge; for then by reason of the delict the pilgrim obtains the forum of the Bishop of that place in which he committed the delict. But if the Bishop himself by his own authority threatens excommunication against one violating the common law, e.g., stealing, not restoring, etc., the excommunication is null. For the immediate delict because of which excommunication is imposed is the contumacy and disobedience of a subject disobeying the Bishop who prohibits theft or prescribes restitution under censure. But the Bishop can neither command a pilgrim who is not a subject, nor consequently impose a special sentence on him as one not subject. Yet others, with Engel and La Croix, contradict this opinion, because just as laws can be imposed by which pilgrims are bound, e.g., concerning not carrying arms, so censure can be added to those laws, and such a pilgrim by reason of the delict becomes subject to such a Bishop. Hence at least he can, as an inhabitant and stranger, be restrained by censures by the office of the judge, C. final, de For. comp. La Croix, book 7, n. 32; Engel, nn. 35, 112; Schmalzgrueber, nn. 47-48; L. 19, 26, 27; book 6, n. 591; Lugo, Resp. Mor., book 6, disp. 22; Laymann, chap. 4, nn. 5, 6.

Can Bishops impose censures on regulars? R. Affirmatively, if they are not exempt; for then they are subject to episcopal laws and censures in plainly the same way as other clerics. Moreover, if they have the Bishop as their proper prelate, they can be bound by censures by him just as other regulars by their proper superiors. Sanchez, in Decal., book 6, chap. 1, n. 11; Schmalzgrueber, book 3, title 35, nn. 61, 62.

Affirmatively, if they are exempt and commit a delict concerning those things in which, by force of canons and Constitutions, they are subject to the jurisdiction of Bishops. And in such a case Bishops proceed not by ordinary but by delegated power. S.C.C., February 17, 1632; Benedict XIV, De Synodo, book 9, chap. 16, n. 5; book 7, chap. 41, n. 5; Barbosa, De Off. et Potest. Episc., part 3, alleg. 105, n. 14 ff. Negatively, if the discussion concerns those regulars who in this matter enjoy special exemption. For a twofold exemption of regulars, or immunity from the censures of Bishops, must be distinguished. The first proceeds from this, that regulars in certain things are exempt from the jurisdiction of Ordinaries, and therefore as regards these things they cannot be punished either by censures or by other penalties. Yet since in other things they are subject to Bishops, when they commit delicts in these matters they can be punished by them, even by censures. But the other proceeds from this, that certain regulars enjoy a special privilege, namely Mendicants and Religious of the Society of Jesus, so that they cannot be punished by Bishops with censures, although they can be punished with other penalties if they commit delicts in those very things in which they are subject to the Ordinaries of places. The case from the constitution Inscrutabili of Gregory XV is excepted, namely "if in churches of others, which are not of their orders, without the license of the Bishop; and in their own churches or those of their orders, without having sought his blessing, or while he contradicts, they presume to preach." Innocent X, Brief Cum sicut accepimus, May 14, 1653, declaring another case in the cited constitution Inscrutabili of Gregory XV, added a case, namely that of hearing confessions. A third case must also be added concerning the form and habit of sacred images from the constitution Sacramenta of Urban VIII, March 15, 1642.

942. • Principles. - I. The Church enjoys true power to impose censures. This is proved from Sacred Scripture. For Christ handed over to His Church the power of casting out from her bosom delinquent and contumacious children by those words in Matthew 18:17: If he will not hear the Church, let him be to you as a heathen and a publican. Amen I say to you: whatsoever you shall bind upon earth shall be bound also in heaven. But this power includes the faculty of imposing censures, as is clear to all. It is established, moreover, from the universal and perpetual practice of the Church, and also from innumerable Councils, especially from the Council of Trent, session 25, chapter 3, On Reformation.

II. By ordinary right, all and only ecclesiastical Superiors having jurisdiction in the external and contentious forum can impose censures. This is apparent from the cited words of Christ in Matthew: Whatsoever you shall bind, etc. For by these words Christ gave to the Prelates of the Church, in the person of the Apostles, all power for the good and right administration of the Church. It is also established from several places in Canon Law.

III. By delegated power, all and only clerics to whom it has been granted by a Superior having ordinary jurisdiction can impose censures. The reason is that every cleric, and only a cleric, is capable of the ecclesiastical jurisdiction required for imposing censures. - See St. Alphonsus, no. 9 and following.

944. • Questions. - QUESTION 1. Can heretical, excommunicated, and suspended Bishops validly impose censures?

Reply 1. Affirmatively, if they are occult heretics, excommunicated persons, or suspended persons. The reason is that the Church, for the common good, does not take away from them the use of jurisdiction. Nevertheless, they act illicitly whenever they impose censures. - Thus commonly the Theologians with St. Alphonsus, no. 12.

Reply 2. Negatively, if they are excommunicated persons to be avoided, or not tolerated, because then they are deprived of all ecclesiastical jurisdiction. But what if they are indeed notorious, but not persons to be avoided? It appears that they can nevertheless validly impose censures, because, they say, this is gathered from the Constitution Ad evitanda of Martin V, where it is enacted that an excommunicated person who is tolerated is not to be avoided, in those things which pertain to public office, even by those who know it. - See St. Alphonsus, ibid.

945. • QUESTION 2. Can a Bishop impose a censure if he is outside the diocese?

Reply 1. Affirmatively, if the censure is imposed by way of precept or statute for preventing future crimes. - St. Alphonsus, book 7, no. 21.

Reply 2. Affirmatively, even if the censure is imposed by way of a sentence which nevertheless does not require cognizance of the cause and judicial proceedings; or even if it requires judicial proceedings, provided permission has been granted by the Ordinary of the territory.

Reply 3. Negatively, if the censure must be imposed with judicial proceedings and the Ordinary of the place refuses permission. Except if the Bishop was expelled by force from his own territory; for then it suffices that permission was sought from the Ordinary of the place, although it was not obtained. - See Schmalzgrueber, book 5, title 39, no. 26.

QUESTION 3. Conversely, can a Bishop existing in his own diocese impose a censure upon a subject existing outside the diocese?

Reply 1. 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 departed, he nevertheless does not cease to be subject to the jurisdiction of his own Bishop. Nor is it an objection that the citation cannot be made outside the territory; for it suffices for incurring the censure that the guilty party be cited at his own home or in a public place. - St. Alphonsus, no. 22.

Reply 2. Indeed, a Bishop can impose a censure upon a subject sinning outside the diocese if there is question of a matter pertaining to his diocese. Thus clerics who, when commanded to come to the Synod, do not obey can be excommunicated; otherwise, however, at least more probably, if the crime were consummated outside the territory ⁷. Except if there is question of a censure imposed against someone by way of a special precept for preventing a crime, as St. Alphonsus more probably teaches, book 7, no. 23, and Laymann confirms with valid reasons, book 1, tract 5, part 1, chapter 4, no. 7. - St. Alphonsus, ibid.; Suarez; Salmanticenses.

⁷ Since laws affect a territory, and therefore one who dwells outside it is not bound by the laws of his homeland, consequently one who sins outside the territory is not subjected to censures imposed by general statutes. This is plainly confirmed from chapter Ut animarum 2, On Constitutions, in the Sext. And since an exempt place, although situated within the boundaries of the diocese, is compared in this respect with places situated outside the territory, therefore, as the common doctrine holds, one sinning in an exempt place does not incur diocesan censures. See Laymann (book 1, tract 5, chapter 4, no. 6) and Schmalzgrueber (book 5, title 39, no. 49).

946. • QUESTION 4. Can a Bishop bind by censure another's subject sinning in his diocese?

Reply. Affirmatively. The reason is that every delinquent acquires the forum of the place in which he sins. Thus from Canon Law, book 2, title 2, On the Competent Forum, chapter 3. Although a Bishop more probably cannot impose a censure upon a stranger before admonition, he can nevertheless do so after the latter has sinned in the place and the Bishop has cited him ⁸. - St. Alphonsus, no. 26, and book 6, no. 591.

⁸ These things, as is apparent, are said of censures ab homine through a sentence. For if there is question of censures inflicted by a special law of that place upon those sinning either against the common law or against the proper laws of that place, according to the more common opinion, which exempts strangers and travelers from the obligation of observing the proper laws of those places, they do not incur them. But you would wrongly urge with certain persons (see St. Alphonsus, book 1, no. 156, doubt 2, and book 3, no. 332, section An autem) any probability whatever of the opposite opinion, namely, of the opinion which subjects travelers to the aforesaid laws. For probability is not sufficient for imposing an obligation, and much less for undergoing penalties. See Lugo, Moral Responses, book 6, doubt 22, nos. 3-5.

But the cases in which a traveler acquires a forum by reason of the offense and can be punished by censures may be seen in the same de Lugo (loc. cit., no. 6) and Suarez (On Censures, disputation 5, section 5, nos. 12, 13).

** The VV. here oppose twelve full columns (pages 868-874), something which could scarcely appear credible to one inspecting the character of this little Note. But perhaps the reader will be all the more astonished when he sees that with so great a mass they fight almost nothing but mere shadows.

1. For first, as though an opinion obliging strangers to observe the laws of a place where they remain briefly and precariously were fastened upon the Holy Doctor Alphonsus in the Note, behold the VV., after reporting his texts both from book 7, nos. 26 and 27, and from the places indicated in our little Note, seriously conclude (page 871): St. Alphonsus does not generally urge for foreigners the obligation of obeying the special laws of a place unless ... they have contracted there a quasi-domicile.

Reply. I deny the supposition. Indeed, for this very reason, within that parenthesis in the little Note, the reader is sent to read St. Alphonsus, book 1, no. 156, and book 3, no. 332: because there the Holy Doctor defends the more common opinion which exempts strangers and travelers from the obligation of observing the proper laws of those places; from which thesis, as from a foundation, it is deduced in the little Note that those strangers do not incur the censures of which it speaks. Wherefore, entirely without cause, the VV. afterward repeat in the same place: Therefore neither the Holy Doctor nor another with him WRONGLY URGES OBLIGATIONS! As though those words of the little Note, But you would wrongly urge with certain persons the probability of the OPPOSITE opinion, were referred to St. Alphonsus, when they are manifestly referred to the opposite thesis which the Holy Doctor rejects in the cited places. And, what may appear amusing, the VV. immediately add in the same place: But rather Father Ballerini wrongly confuses the questions!

2. But from the same preconceived opinion, that those words of the little Note, But you would wrongly urge with certain persons, etc., attack the opinion of the Holy Doctor, the VV. in the same place thus assail the following part of that little Note: As regards that principle recalled again here by Father Ballerini, namely, that any probability whatever does not suffice for imposing an obligation ..., it appears clearer than light that the aforesaid principle is false whenever, AS IN THE PRESENT QUESTION, it is extended to a probability NOTABLY AND CERTAINLY GREATER than the opposite.

Reply. Again, first, I deny the supposition; because in the little Note this is said most plainly of whatever probability may be attributed to the opposite opinion of Suarez or others, which binds strangers to the laws of the place and consequently subjects them to the proper censures of the same place. This opinion is rejected elsewhere in the Notes to this compendium (see Note at no. 94, volume 1, page 87), and there it is again insisted against it that the mere probability of this opinion does not suffice for inducing an obligation. But this is by no means asserted against the more common and more probable opinion exempting strangers from this obligation, which St. Alphonsus also defends; and for this reason St. Alphonsus is cited in Gury's text (book 6, no. 591), where the Holy Doctor writes: Foreigners are not subject to these censures unless they have contracted a domicile or quasi-domicile in the place where they were imposed; and he had premised the reason there: because excommunication cannot be imposed except upon subjects and the contumacious.

3. But, moreover, a certain excessive fervor for contradicting and attacking caused the VV. here to contradict St. Alphonsus also. Let us resume their statements: The principle recalled here by Father B., namely, that any probability whatever does not suffice for imposing an obligation, is false whenever, AS IN THE PRESENT QUESTION, it is extended to a probability NOTABLY AND CERTAINLY greater than the opposite.

Let us even prescind from the confusion which these words of the VV. introduce. But what finally is this notably and certainly greater probability? If you consider the purpose of the VV. refuting the little Note, you will certainly conclude that they designate the probability to which the force of inducing an obligation is denied in the little Note; for on that account this principle is insisted upon in the little Note. But this is none other than the probability of the opinion which subjects strangers to the laws and censures of the place. Therefore, according to the VV., does the opinion which obliges strangers to the laws and censures of a place have a probability notably and certainly greater than the opposite? Yet, apart from the fact that this would be asserted against the more common opinion of the Doctors, the VV. would thus now attack St. Alphonsus, who holds as more probable the opinion exempting strangers from the aforesaid laws and censures. It remains, therefore, that by those words the VV. designate not the opinion which obliges strangers, but the more common opinion, as it is called in the little Note, which exempts strangers and travelers from the obligation of observing the proper laws of those places. For they expressly say that this notably and certainly greater probability is so present IN THE PRESENT QUESTION that it excludes the principle employed here by Father Ballerini. Therefore, it is necessary that they attribute this greater probability to one or the other opinion, namely, either to that obliging strangers, as we said, or to that exempting them from this obligation. But they neither attribute it, nor can attribute it, to the obliging opinion, as we have seen, without attacking both St. Alphonsus and the more common opinion of the Doctors. Therefore, it remains that they contend that this greater probability pertains to the opinion which exempts strangers from the obligation in question.

4. But thus the VV. do not attack Father Ballerini, and, on the contrary, again attack the Holy Doctor Alphonsus. They do not attack Father Ballerini, I say; for what is contended in the little Note they themselves strikingly confirm when they assert that the opinion which in the case exempts strangers from observing the laws of a foreign territory, and therefore from incurring the proper censures of that territory, is notably and certainly more probable; and, on the contrary, they concede scarcely any probability to the opposite opinion which binds the same strangers to the aforesaid laws and censures.

5. But thus the VV. again attack the Holy Doctor Alphonsus. For they contend that the opinion in question is both notably and certainly more probable. Yet, as the illustrious Father Haringer, a distinguished theologian of the Congregation of the Most Holy Redeemer, testifies (in the Note to no. 40 of the Treatise on Conscience of St. Alphonsus), A notably more probable opinion approaches very closely to moral certitude, and is no longer strictly doubtful, but morally or quasi-morally certain, and THE OPPOSITE BECOMES SLIGHTLY PROBABLE; or, as St. Alphonsus says (loc. cit., no. 56), the opposite remains EITHER SLIGHTLY OR AT LEAST DOUBTFULLY PROBABLE. Therefore, while the VV. proclaim that the opinion exempting strangers, etc., is certainly and notably more probable, they consequently contend that the opposite, which binds strangers to those laws and censures, is slightly or at least doubtfully probable. Yet this is precisely what again openly conflicts with the opinion of St. Alphonsus. For even the VV. themselves (page 870) cite the text of St. Alphonsus from book 1, no. 156, in which the Holy Doctor admits that this opinion is sufficiently probable. For he writes thus: This opinion, which obliges strangers, IS SUFFICIENTLY PROBABLE; but the second, which says that a stranger is not bound by the laws of the place, etc., APPEARS more probable. There, moreover, we see the Holy Doctor asserting the greater probability of the latter opinion somewhat doubtfully, appears, whereas, on the contrary, the VV. proclaim it notably and certainly more probable and therefore morally or quasi-morally certain. But again the VV. themselves (page 869) transcribe another text of the Holy Doctor, from book 3, no. 338, where that same opinion is furthermore called by St. Alphonsus deservedly probable. Thus the Holy Doctor: Suarez, Pontius, Joseph de Januario, and Salas in Palaus affirm, namely, that strangers are bound, etc., WHO DESERVEDLY CALLS IT PROBABLE with Sanchez and the Salmanticenses.... Sanchez with Toledo, Azor, etc., nevertheless more probably deny it. Therefore, while the VV. will that what St. Alphonsus teaches to be both sufficiently probable, which the Holy Doctor again has both in book 7, no. 27, and in The Apostolic Man, tract 2, no. 41, and deservedly probable should be held as slightly or doubtfully probable, it is manifestly apparent that they also attack the doctrine of St. Alphonsus.

6. Moreover, another argument that the VV. here pursue shadows is found where they write (page 871): But the more common opinion does not exempt from the obligation of observing local laws all strangers, as FATHER BALLERINI SUPPOSES, but only those who do not have the intention of remaining for the greater part of the year.

Reply. From where the VV. could have taken occasion to imagine that, according to Father B., those also are exempted from this obligation who have the intention of acquiring a quasi-domicile through that long stay, who can finally divine? Indeed, in the text of Gury, to which the little Note is subjoined, there is question of another's subject, who is there rightly called a traveler; but the nature of the matter itself demands that the discussion in the Note be about exactly the same subject. Why, therefore, do the VV. contend that the same word traveler has in the little Note so broad a sense, which is otherwise contrary to common usage? Has Father B. at least elsewhere attributed to this word so broad, unusual, and improper a sense that it embraces also those who, while contracting a quasi-domicile, now become subjects? Therefore, here also the VV. pursue shadows. Let us come to another head.

7. The VV. write (page 873): We do not understand how the things which Suarez teaches here can be reconciled with the assertions of Father Ballerini.

Reply. Suarez (On Censures, disputation 5, section 5, no. 12) is cited in the little Note in order to indicate the case in which a traveler acquires a forum by reason of an offense and can be punished with censures. For Suarez thus proposes in no. 12 the case which he resolves in no. 13: The objection stands thus: If a stranger commits an offense in another's territory, by that offense he also becomes so subject that proceedings can be taken against him where he sinned; and nevertheless, even if a censure is imposed by sentence in that territory on account of that offense, he does not incur it, although such a sentence embraces all subjects. But to these things he answers there thus in no. 13: Since two things can be considered in a statute or jurisdiction, namely, directive force and coercive force, by reason of an offense a man cannot become subject first and immediately in relation to directive force, but in relation to coercive or punitive force; for he is said to become subject because he can justly be punished where he sinned. Consequently, however, he can be obliged according to directive force to all those things to which a just judge can oblige a guilty party, but not to other things, precisely by force of that subjection. But from this it follows that, if this guilty party is obstinate and contumacious against such a just mandate of the judge, namely, of the Bishop, he can also be compelled by him through censures. And indeed, suppose, for example, that what is intimated in chapter Si seduxerit 1, On Adultery and Defilement, happens, in which the guilty party is condemned either to marry the seduced virgin or to provide a dowry for her. The Bishop can certainly cite the guilty party by reason of the offense, although he is a stranger and nevertheless made a subject, and, when he has been convicted, condemn him to the aforesaid penalties. Behold, therefore, the case concerning which Suarez treats, namely, when the judge can compel a stranger, even by censures, both to appear before him or obey the citation and consequently either to pay the dowry or to marry the young woman, as St. Alphonsus also intimates (book 7, no. 26, at the end).

8. But to the texts of Suarez with which the VV. fill four columns (pages 872, 873), the obvious response is at hand: all those things do not pertain to the matter. Namely, the context of that section 5 looks to whether one acting in another diocese contrary to the general sentence of his own Prelate is bound by his censure; and Suarez (no. 14), according to his own opinion, which he nevertheless does not deny elsewhere to be merely probable, that local laws oblige not only subjects but also travelers, answers affirmatively. But the citation of Suarez in the little Note did not look to this, but to those things which the same author incidentally has in nos. 12 and 13 concerning a censure which is ab homine, and which we reported above. And to the same point pertain those things also which Suarez had likewise incidentally said in the same section 5, for example, no. 10: An offense alone can make one a subject in relation to a future judgment and consequently with respect to all those things which can be ordained to the punishment of that offense. And again, no. 11: Although an offense committed in a territory constitutes a man a delinquent of that forum, and, the forum being supposed, he can be cited and become contumacious. Therefore, the VV. have that by which they may understand how those things which Suarez has in that section 5 can be reconciled with the assertions of Father Ballerini.

9. Moreover, perhaps with more useful labor the VV. would have inquired how what St. Alphonsus has in this same question (book 7, no. 27) is reconciled with the doctrines of Suarez, where he writes: If a censure is imposed by way of a general statute for future offenses ..., then it binds even foreigners if they are there with the intention of remaining for the greater part of the year; otherwise, if they remain there in passing. Thus the Salmanticenses with SUAREZ, etc. After these things the Holy Doctor then continues: This opinion is more probable to me, but I do not think it improbable that travelers are bound by the censure both in the first and in the second case, even if they are somewhere for a brief time, because it is sufficiently probable that travelers become subjects if they remain in some place even for a brief time, according to the opinion reported in book 3, no. 332.

In this place, as is apparent, Suarez is cited by the Holy Doctor for the opinion which he calls more probable to himself, namely, that travelers are not bound by the censure because, if they remain somewhere for a brief time, they do not become subjects. Yet the same Holy Doctor writes thus in the place to which he refers, namely, book 3, no. 332: Are travelers bound to hear Mass which must be heard from a particular precept of the place where they are, even if they remain there for one day? SUAREZ affirms (On Religion, book 1, chapter 14, no. 9), Pontius, etc. Sanchez, etc., nevertheless more probably deny it. But let us now omit the erroneous citation of Suarez, which recurs in the Holy Doctor also in book 1, no. 156, namely, On Religion, book 1, chapter 14, no. 9; for it labors under a twofold defect, both because Suarez's On Religion has ten treatises, each of which has several books, and because that opinion is found in none of the first ten books but is found in tract 2, book 2, chapter 14, no. 8. But what is principal: how is Suarez cited by St. Alphonsus in book 7, no. 27, for the more probable opinion which exempts travelers who remain somewhere for a brief time from observing laws and incurring local censures, and then in book 3, no. 332, the same Suarez is cited for the opinion which subjects travelers to a local precept even if they remain there for one day?

10. But there is also another thing which requires an explanation from the VV. in the same no. 27 of book 7. For the Holy Doctor, as we have seen, writes there: I do not think it improbable that travelers are bound by the censure both in the FIRST and in the SECOND case, even if they are somewhere for a brief time, because it is sufficiently probable that travelers become subjects if they remain in some place even for a brief time, according to the opinion reported in no. 332. But the first case there is this: If a censure is imposed by way of a particular precept or sentence in a particular case, namely, if excommunication is imposed against those who do not reveal thieves, this does not bind foreigners because a particular precept cannot bind non-subjects. Therefore, St. Alphonsus does not judge it improbable that even the aforesaid excommunication is incurred by strangers because, as he says, it is sufficiently probable that travelers become subjects according to the things reported in book 3, no. 332. Yet Suarez, whom otherwise the Holy Doctor cites here in the first place and whose numerous texts the VV. report, on the contrary absolutely denies that an excommunication of this kind is incurred by foreigners. For thus Suarez says (On Censures, disputation 5, section 5, no. 10), as the VV. themselves report: A sentence of this kind, although general, is directly imposed upon persons in order to restrain and punish their contumacy; and therefore it is not extended to strangers, who, although they remain in another's territory, are simply not subjects there, nor does there intervene any title by which they become subjects. He then gives the reason for this resolution in the same place, no. 15.

11. Likewise the VV. report (page 868) those things which St. Alphonsus has in book 7, no. 26, and they are of this kind: For this reason Croix, book 7, no. 32, thinks, against the Salmanticenses, chapter 1, no. 37, with Pignatelli and Gibalinus, who cites a Declaration of the Sacred Congregation, that a Bishop can excommunicate even his Archbishop sinning in the Bishop's diocese. But the reason premised by St. Alphonsus is that by reason of the offense that Archbishop becomes a subject of the Bishop. Yet: 1. It is not true that the Salmanticenses are of the opposite opinion. For, indeed, when the Salmanticenses establish in the cited place, no. 37, that a non-subject can be excommunicated by a Bishop by reason of an offense committed in his territory, they except: unless such a guilty party was his Superior, as his Archbishop or Patriarch; but afterward, no. 39, they add the limitation: if he does this by his own authority. Concerning which below: We said in the conclusion, by his own authority, because an equal or inferior can indeed by delegation of another Superior excommunicate his own Superior. 2. On the contrary, the doctrine of St. Alphonsus, which is taken from Croix, is expressed in words too general, namely, that an Archbishop can become subject to his Suffragan by reason of an offense; for it must be restricted by those limits which Gibalinus skillfully adds (On Censures, disquisition 4, question 1, no. 4), namely, that this happens only when the Superior has sinned within another's diocese against a law sanctioned BY SOME OTHER SUPERIOR OF BOTH and promulgated in the jurisdiction of that inferior; for example, if laws concerning the administration of some orphanage, hospital, or University were so sanctioned by the Pontiff that it pertained to the Bishop to restrain disturbers even through censures. 3. In the text of St. Alphonsus, a Declaration of the Sacred Congregation ascribed to Gibalinus is adduced for this doctrine; but this is not true, nor did Croix say this, for Pignatelli, not Gibalinus, adduces it, and Croix attributes it to Pignatelli. Moreover, Pignatelli (Consultations, volume 1, consultation 170, no. 8), contrary to what St. Alphonsus after La Croix intimates, in no way speaks of an Archbishop who can be excommunicated by his Suffragan, but merely has these words: Thus also a Bishop offending the jurisdiction of another Bishop in the latter's diocese is made a subject, so that proceedings can be taken against him with censures, as the Sacred Congregation of the Council judged after Alterius ... in a certain case of Bari on 27 February 1627. These things fit our case less well, when a Bishop against his own Metropolitan or Patriarch not so much defends his own jurisdiction as protects, as delegate, a law of the Pontiff coercing even through censures.

12. Finally, I would not omit here a little Note which the VV. incidentally add (page 872), where they write: We observe here in passing that the texts of St. Antoninus, St. Raymond, Gerson, and Gabriel Biel which Father Ballerini adduces in the Annotation to no. 152, volume 1, to prove that mortal sin is not to be asserted unless it is certainly established, must be received with a grain of salt, as they say. For a twofold certitude can be had, one direct and the other indirect from reflex or concomitant principles (compare above, On the System, page 103, at II); in which place there is discussion of that certitude which arises for that side for which a certainly more probable opinion stands.

QUESTION 5. Can Regular Prelates impose a censure upon subjects existing in any place whatever?

Reply. Affirmatively, according to the common opinion. The reason is that the jurisdiction of Superiors is not merely territorial but rather personal; hence a change of place on the part of the subject detracts nothing from the jurisdiction of the Superior. - Thus St. Alphonsus, no. 20.

These things, however, must be understood of censures imposed by a particular sentence or by statutes of the Chapter or of the Superior General. For if some censure has been imposed by a statute by a Superior who has a special territory, for example, a province, then the limitation of place can be attended to, and therefore the exemption of those who sin outside that territory. See Croix, book 7, no. 28.

This article is subdivided into two paragraphs: 1. on the power of imposing censures; 2. on the conditions required in imposing censures.

477. Principle 1. There exists in the Church the power of imposing censures.

This is proved, first, from the Council of Constance, which condemned the thirtieth proposition of John Wyclif: "The excommunication of the Pope or of any prelate whatsoever is not to be feared, because it is a censure of Antichrist."⁴² Moreover, if Wycliffites or Hussites wished to return to the Church, they had to answer this question: "Whether he believes that the Pope or another prelate ... can excommunicate his ecclesiastical or secular subject because of disobedience or contumacy, so that such a one is to be held as excommunicated."⁴³

It is proved, second, from Sacred Scripture; for St. Paul delivered a certain one to Satan, "that the spirit may be saved in the day of our Lord Jesus Christ";⁴⁴ but by this delivering to Satan is understood excommunication. Christ the Lord said: "But if he will not hear the Church, let him be to thee as the heathen and the publican."⁴⁵

Moreover, if the Church has coercive power, as was proved above in n. 473, she must also have the power of imposing censures, as is evident of itself.

⁴² Denz. n. 610; cf. also proposition 19 of John Huss (Denz. n. 645).

⁴³ Denz. n. 681.

⁴⁴ 1 Cor. 5:3-5.

⁴⁵ Matt. 18:17.

478. Principle 2. The ordinary power of imposing censures rests with all and only ecclesiastical prelates having unimpeded jurisdiction in the external forum.

The reason is that the faculty of punishing with so grave a penalty as a censure is most fittingly reserved to prelates having jurisdiction in the external forum.

Those possessing a power of this kind are:

1. The Supreme Pontiff and an ecumenical council, for the whole Church.⁴⁶

2. Legates a latere within the territory of their legation (by mandate of the Supreme Pontiff).⁴⁷

3. Bishops over their subjects⁴⁸ (but not a vicar general without a special mandate).

4. The chapter of a cathedral church (before a vicar capitular has been elected; when he has been elected, the power of the chapter passes to him), and the vicar capitular while the episcopal see is vacant.⁴⁹

5. Prelates nullius and similar prelates who have jurisdiction in the external forum.⁵⁰

6. Provincial councils, and likewise chapters of religious orders.

As regards these chapters and, generally, as regards religious superiors, legitimately approved particular statutes are to be observed.

Note. Pastors have no ordinary power of imposing censures. Thus, at least, according to the discipline in force.⁵¹ Cardinals appear to have the ordinary faculty of imposing censures in the churches of their title.⁵²

⁴⁶ Cf. c. 1, I 8 Extrav. comm.

⁴⁷ Code of Canon Law, c. 266.

⁴⁸ If a censure is reserved to the Apostolic See, the Ordinary cannot impose upon the same delict another censure reserved to himself (Code of Canon Law, c. 2247, § 1). During a canonical visitation the Metropolitan can impose censures in the dioceses of his suffragans (ibid., c. 274, n. 5). The vicar general of a bishop, without a special mandate, does not have the power of inflicting censures and other ecclesiastical penalties (ibid., c. 2220, § 2).

⁴⁹ Council of Trent, sess. 24, c. 10, de reform.

⁵⁰ c. 10, X 1, 33; c. 8, X 3, 35.

⁵¹ Cf. St. Thomas, 4, dist. 18, q. 2, a. 2, sol. 1; St. Alphonsus, Theol. mor. l. 6, n. 11.

⁵² Cf. Code of Canon Law, c. 240, § 2.

479. Principle 3. The delegated power of imposing censures rests with clerics alone, to whom it has been legitimately committed by one having ordinary power.

Thus, at least, according to the discipline in force. A layman can indeed be delegated by the Supreme Pontiff to exercise ecclesiastical jurisdiction in the external forum, and this appears actually to have been done in the famous "Sicilian Monarchy."⁵³ A woman, however, does not appear able to impose censures even by a delegated faculty. Hence St. Thomas⁵⁴ says: "A woman cannot have any spiritual jurisdiction, ... whence she has neither the key of order nor the key of jurisdiction." When, however, in the Decretals⁵⁵ an abbess is said to be able to suspend clerics subject to her from office or benefice, there is not conceded to her the faculty of imposing a censure properly so called, the violation of which would induce irregularity; rather, such suspension is taken in a broad sense for a precept by which the abbess prohibits a cleric in some manner subject to her from the celebration of Mass until he has made satisfaction, meanwhile withholding revenues from him.⁵⁶ - Every cleric initiated by the first clerical tonsure is capable of ecclesiastical jurisdiction, and therefore the faculty of imposing censures can be entrusted to him.

⁵³ Cf. Sentis, Die "Monarchia Sicula" (Freiburg im Breisgau, 1869), 2 ff.

⁵⁴ 4, dist. 19, q. 1, a. 1, sol. 3 ad 4.

⁵⁵ c. 12, X 1, 33.

⁵⁶ Cf. St. Alphonsus, Theol. mor. l. 7, n. 11 ff. The holy Doctor thinks that opinion more probable which teaches that not even from the plenitude of power can the Pope delegate to a woman the power of imposing censures. Ballerini teaches the contrary (in the notes to Gury II, n. 943), and very many authors with him. Since this controversy is merely theoretical, without any practical utility, we omit it here for the sake of brevity. - A curious example of the jurisdiction of the Abbess of the Monastery of St. Mary of Las Huelgas, who still in the year 1868 contended that she possessed quasi-episcopal jurisdiction, may be seen in Anal. eccl. VI (1898), 257.

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.