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ELEMENTS
Ecclesiastical Law.
it-it i
THE u I ONST, i?i ISTOLICA - >i POPE I THE
COUNCU "i i i'i \ \ i i« w AND i in. i \ i i CIS! 01 'i HE ROM
CONGREGA I i< • •
hiXASTSD i iTruii.v K) i m i)i • IPUNl 01 rHE CHURCH IN THE UNITED STAi ORDINGTOTH NT INSTRUi tf MAGNOPES
and in: rUIRD PLENARY COUNCIL Ol BALTIMORE.
A/^
HY
REV. S. B. SMITH, D.D.,
FORMEK£,v PROFESSOR 01 IW, AUTHOR OV " NOTKS ON THF SECOND PLENARY COUNCIL
OP HALTIMOKS;" OP " COrNTER-rOINTS IN CAWON LAW; " "THE NEW PROCEDURE IN
CRIMINAL AND DISCIPLINARY CAUS8S OF ECCLESIASTICS," ETC., ETC-
Vol. III. ECCLESIASTICAL PUNISHMENTS.
THIRD EDITION. New York, Cincinnati, and Chicago :
BENZIGEB BROTHERS.
PRINTERS TO THE HOLY APOSTOLIC SEE.
TORONTO 5, -A.
DEC 17 I
3157
Jlifeil tiMrstat.
H. GABRIELS, S.T.D.,
Censor Deputatus.
UmprimaHrtr,
* MICHAEL AUGUSTINUS,
Archiepiscopus Neo-Eboracensis. i)atum Neo-Eboraci,
Die 12 Aprilis, 1888.
Copyright, 1888, by Bbnziger Brothwk.
PREFACE.
After fifteen years o\ ceaseless toil and unwearied study, we have at last finished these Elements of Ecclesiastical La The first volume was published in 1877; the second in 1882;
the third and last is now given to the public.
This third volume dials with a subject which grates harshly on (he ear of the reader. Punishments are never agreeable, either to the superior imposing, or to the subject receiving them. Yet they are coeval with fallen man, and will exist as long as man. Hence the necessity of a full and clear knowledge of them. By this knowledge, the superior will be enabled to impose them wisely, justly, moderately; the inferior, to safeguard and protect the rights given him by the law of the Church.
The law of the Church has determined the various kinds of punishments which can be inflicted. They are of two kinds: preventive and repressive. The latter are sub- divided into punitive and reformative. The chief repres- sive punitive remedies are : Penal transfers, removals from office, disqualifications for offices and orders, and infamy. The principal repressive reformative penalties are : Suspensions, excommunications, and interdicts.
4 Preface.
The law of the Church has also defined (a), what actions are punishable ; (o), what specific penalty is annexed to a punishable action ; (c)y how the superior proceeds in impos- ing the remedy; (d), how the inferior can protect himself against unmerited punishment.
All these points are fully and accurately explained in the present volume. They are treated with special reference to our own times, and to this country, to England, Ireland, and to other English-speaking countries. Hence we have taken into full account the latest Instruction of the S. C. de Prop. Fide, Cum Magnopcrc, issued in 1884, and the Third Plenary Council of Baltimore. For the same reason, we explain the law as it is now, not as it existed formerly.
We have spared no pains to make the book perfectly accurate and reliable. Consequently we have taken nearly all our quotations from the originals, not at second hand.
We avail ourselves of this occasion to express our heart- felt gratitude for the kind, indulgent, and generous patron- age bestowed upon our works by the clergy of this and other English-speaking countries.
Paterson,
Feast of St. Monica, May 4, 1888.
PREFACE TO THE SECOND EDITION.
The present volume, like the first and second, met with a
welcome reception. The Dublin A and other foremost
journals bestowed upon it the most flattering encomiums.
The present edition has been greatly improved. A lar. number of printers' typographical mistakes have been cor- rected. Many other changes have been made. Some of
them are intended to make expressions which were some- what obscure clear and unmistakable. O'hers affect the matter itself. In this manner we have sought to make the present edition as accurate and satisfactory as possible.
Paterson, April 22, 1889.
195 .56
BOOK III.
ECCLESIASTICAL PUNISHMENTS.
[656. We shall divide this book into four Parts : the I will treat oi punishments in general ; the second, <>l preven- tive or paternal remedies; the third, oi repressive punish- ments which are called vindicatory ; the fourth, oi repn sive punishments which are termed correctional.
PART I.
ECCLESIASTICAL PUNISHMENTS IX GENERAL.
1657. In this part we shall explain the true nature of pun- ishments; what actions are deserving of them; their aim ; by whom they can be imposed, etc.
CHAPTER I.
TRUE IDEA OF ECCLESIASTICAL PUNISHMENTS.
Art. I. Has the CJmrcJi a Right to Inflict Punislnncnts ?
1658. As we have already shown, the Church is a Sov* ereign State, that is, a perfect and supreme society, estab- lished by our Lord for the purpose of leading men to heaven. l We say, a society ; now what is a society ? Speak- ing in general, it is a number of persons associated together.
1 Supra, vol ii., n. 702 sq. ; Tarqu., n. 4, 41.
8 True Idea of Ecclesiastical Punishments,
in order to attain, by united efforts, some common end. We say, perfect; because she is complete of herself, and therefore has within her own bosom all the means sufficient to enable her to attain her end. ! We say, supreme, because she is subject to no other society on earth. Like every society, the Church is an external organization. For she is composed of human beings, who have a body as well as a soul. She is, in fact, by the will of her divine Founder, a community, an association of men, governed by men. 2
1659. Like every external organization, the Church must be governed by laws and regulations that will enable her to fulfil her mission and attain her end. The aim and end of the Church is the worship of God and the salvation of souls. Any action or omission, therefore, on the part of her mem- bers, which hinders her from carrying out her mission or reaching her end, and, consequently, whatever contravenes the regulations made by her concerning the worship of God and the sanctification of her children, is punishable by her. For God, having given her a mission, also gave her the means or the power to fulfil it. Hence she can establish, in fact has established, laws, and regulations, obligatory on her members. If the members violate those laws, they not only sin against God, but they offend also against the order, discipline, laws, or regulations established by the Church.
1660. That the Church can punish her members for such infractions of her laws, is evident from her very character as a society, and is, moreover, apparent from divine reve- lation, as we have already shown. 3 St. Paul the Apostle writes to the Corinthians : " And having in readiness to avenge all disobedience."4 We have also seen that the Church can inflict temporal and physical as well as spiritual punishments.
1 Tarqu., n. 6. 2 Soglio, vol. i., p. 137.
3 Supra, n. 705-710. 4 II. Cor., x. 6.
/'//<< iaea ( tiastical Puni$hmen< 9
Art, 11.
II hat is a Punisknttnt
[661. What thin is meant by <j punishment / Sp< neral, a punishment (potna) is an evil, a pain 01 asufferii whether oi the bod} 01 the soul, inflicted foi « rime.1 When .1 person transgresses .1 law, he always do in ordei to
satisfy Ins disorderly passion, and procure for himseli some unlawful enjoyment. The lawgiver punishes him for his disobedience, bj depriving him oi some lawful gratificati* or l>\ making him suffer some pain, either in his soul, or in his body, and thus the illicit pleasure is atoned for and expiated l>\ the privation and suffei From this it will
be seen thai punishment and Efuill arc correlatives. Th< can be no punishment where there is no crime ; othei the punishment would be unjust and barbarous." " Sine culpa" says the law of the Church "noii est aliquis pu- niendus." ' Now there is no guilt, no crime, where there is no premeditated, intentional violation of the law. Hence there must be, not simply a material, but also a formal crime.
1662. Punishments are either secular or ecclesiastical, according as they are established by the civil or ecclesias- tical power. Ecclesiastical or canonical punishments, of which alone we here speak, are the pains, sufferings, or privations, inflicted by ecclesiastical authority, in the man- ner prescribed by the sacred canons, upon Christians who have transgressed the laws of the Church, and have thus committed a crime, in order that the offender may be made to feel the gravity of the wrong done by him, be brought
1 Munchen, 1. c, vol. ii., p. 8. - Stremler, 1. c, p. 3. 3 lb., p. 4.
4 Reg. jur. 23. in 6° ; Reiff., 1. c. , 1. 5., t. 37., n. 2. Natural law itself teaches, that, as those who observe the law should be rezvardtrd, so those who break it should be punished.
True Idea of Ecclesiastical Punishments,
back to the path of duty, prevented from repeating the crime, and also that others may be deterred from following his bad example. x The chief object of the ecclesiastical punishments, in the strict sense, is to cause the laws of the Church to be respected and observed. 2 Hence canonists very properly say that canonical punishments are estab- lished for the purpose of maintaining the external order or public discipline of the Church.
Art. III. What arc Crimes ?
1663. What is meant by a crime in the canonical sense of the term f We have just said that ecclesiastical punishments are inflicted for crimes, not sins. Let us explain the differ- ence between the two. By a crime (crimen, delictuni), in its legal or canonical acceptation, is not meant every sin, but only certain grave sins, to which the law of the Church has attached a punishment. Thus St. Augustine says : " Apos- tolus Paulns, quando elegit ordinandos . . . non ait : ' Si quis sine peccato est ' (hoc enim si diceret, omnis homo repro- baretur, nullus ordinaretur), sed ait: ' Si quis sine crimine est,' sicut est homicidium, adulterium . . . Crimen autem est peccatiun grave, acensatione et damnatione dignissimum." 3 St. Thomas likewise writes: " Aliud est crimen, et aliud pecca- turn. Peccatum dicitur quodcumque sive magnum, sive parvum, sive occultum, crimen autem magnum et infame."4
1664. A crime, therefore, is an unlawful act or omission punishable in the external forum of the Church. 5 Now, as we have seen, the Church, in her external forum, punishes only those unlawful acts or sins, which not merely offend God, but also violate the rules, regulations, and laws en-
1 Phillips, Lehrb., ^ 180., p. 375. J Cavagnis, vol. i., pp. 85, 93, 97
3 Can. Apost. 1., dist. 8^. 4 Lect. 2, Com. Ep. ad
s Pellegr., P. 4, Sect, vii., n. I.
»5»9
t
Tt Hi fdi a oj Eccli > nishm \ \
acted bj her, and which, therefore, are not onlj offensiv< to God, but also detrimental to the public discipline ol the
Chin < h. ' \ in, on 1 b< ' 'i bel band, 1 an} a< tion 01 1 >m sion, wliu ii 1 - 1 « > 1 1 1 1 .11 \ to law, divine 01 natural, but whi< h dors not redound directly to the detriment oi th 1 Consequently a sin simply disturbs the moral oj while
a crime also violates the social order, that is, the external re- gime or public discipline ol the Church.1 Whether th< are actions that ma} be punished as crimes, not b Eire transgressions oi an ecclesiastical law and disturb the social D\ external order oi the Church, that i !siasti<
discipline, but purely as sins or offen gainst God and
violating the moral order, we shall not here undertake- to show. The Church can, it is true, treat grave sins as crimes; but even she does so only when the sin takes the
form of an action which is also injurious to others, and thus dangerous to the common good of the faithful. *
1 Soglia, vol. ii., j). 531. 2 Streraler, 1. c, p. 65.
3 Cavagnis, vol. L, p. 90; Tarqu., n. 25, p. 17. 4 Munchcn, 1. c, vol. ii., p. 24.
CHAPTER II.
THE VARIOUS KINDS OF ECCLESIASTICAL PUNISHMENTS.
Art. I. Penances,
1665. Taken in their broadest sense, ecclesiastical punish- ments are divided into punishments of the forum internum and punishments of the forum externum. The former are imposed in the internal forum, or in the tribunal of penance, and are called penances {pcenit entice) rather than punish- ments (pevnee).1 The latter are inflicted in the external or judicial tribunal of the Church. Penances are voluntarily received and performed, while punishments are inflicted upon those zvJio may be unwilling to accept them. For a person who commits a crime can be punished therefor, whether he consents or not to the punishment. 2 Again, penances are imposed, not only for crimes, but also for mere sins, and that even though purely internal ; punishments only for crimes which are external, and which violate, not merely a divine law, but also an ecclesiastical, that is, not only the moral order, but also the social or disciplinary order of the Church. In the present volume, we speak of punishments only, not of penances.
Art. II. Punishments.
1666. The punishments of the external forum are divided {a) into preventive and repressive ; (b) reforming and vin-
1 Reiff., 1. 5, t. 37, n. 17. • Cavagnis, Insti. Jur. Publ. Eccl., vol. i., p. 99. Romoe, 1882.
/ at iou i kinds of Ecclesiast /
iIk atoi \ " dinai j and exl ra< \\ dinai j I ind
lata senttnti temporal and spiritual. W< shall n
hi icil\ explain ea< h i >i i bese cjivi
i. Preventive and Repressive Punishment
[667. Ul ecci< al punishments are eithei preventive
01 repressive. Thus the instruction Cum Magnoperi ofth< Congr. de Prop. Fide, speaking oi canonical punishmei sa) s: "I [ae< vero remedia, alia preeventiva sunt, alia t ; ■
j." The preventive punishments or remedies are tl which aim chief)} at preventing the fall oi those \» who are already on the Inclined plane oi evil. Thus the above instruction (id) says: "Ilia (praeventiva remedia) quidem ad praepedienda mala, scandalorum stimulos amoven- dos, voluntarias occasiones el causasad delinquendum pro imas vitanda. ordinantur." The chief preventive remedies are spiritual retreats, canonical warnings, and precepts. Repressive punishments arc those which aim at bringing hack the offender who has fallen into crime to the path of duty, and at wiping out the consequences of his guilt. Thus the Instruction Cum Magnopere^ Art. II., decrees: " Hasc vero (remedia repressiva) eum in finem constituta sunt, ut delinquentes ad bonam frugem revocentur, ac culparum consectaria de medio tollantur."
§. 2. Reforming and J Indicative Punishments.
1668. Repressive punishments are subdivided into those which primarily have in view the good of the offender, and, therefore, aim principally at reforming him or bringing him back to the path of duty ; and those which have for their chief object the common good of the faithful, and therefore aim directly at making the guilty party suffer and atone for his guilt, in order that others may be deterred from follow- ing his bad example, and that thus the social order of the
14 I ari'ous kinds of Ecclesiastical Punishments,
Church, that is her discipline and law, may be upheld. The first are called correctional punishments {poence medi- cinalcs, censurce) ; the second, punitive, or punishments proper and in the strict sense of the term (pama?, pcence vindicative).
1669. This distinction is also clearly indicated in the an- swer of the S. C. de Prop. Fide to questions of our American Bishops relative to the Instruction of July 20, 1878, on Com- missions of Investigation. 1 [ere are the words of the Prop-
anda: " Instructio diei 20 Julii, 1878, lata est de casibus, m quibus ecclcsiastica poena seu censura sit infligenda." Here the words parna and censura are carefully distinguished from one another. By pcena the Sacred Congregation means Hndicatory punishments: by censura, correctional.
1670. In drawing the distinction between the end and aim of these two classes of punishments, we must guard against *in erroneous impression. It would be a mistake to suppose, \hat, in inflicting punishments proper or vindicatory, the Church excludes altogether the reformation of the delinquent: or that, vice versa, in imposing correctional punishments, she does not aim at terrifying others from crime and maintain- ing respect for her laws and discipline. In all her punish- ments, whether medicinal or punitory, the Church always has a twofold object in view : first, to cause the offender to t-epent and amend ; second, to deter others from crimes.
1 67 1. In other words, she always aims both at the good of the offending individual and at the common good of the Church. All ecclesiastical punishments therefore, both puni- tive and correctional, have a twofold object, viz., (a) the amendment of the offender, (d) and the atonement or retri- bution for, and consequent repression of, the crime, and an example or warning to others. 1 The difference, then, in the aim of these two kinds of punishment is this : In correctional punishments, the amendment of the culprit is the preponder-
1 Arg. Cap. Novit ille 13 (II. 1) ; Salz., vol. 4, p. 81.
Various kinds of Ecclesiastical Punishnunls, 15
oting motive x .iikI the atonement foi the crime the tecondai
wlici eaa in \ iii* 1 1 * ativ< punishments 1 h< >n < >\ 1 he
offendei is but I he set on 1 », and 1 he r< tribufl
01 atonement foi the 1 rime th< < hiel and primary ob 1 1 t This distinction between medit inal and vindii atorj puni incuts is made by all canonist . and i ot the utmost imp tance and must be carefulh borne in mind. '
this division it ma} perhaps be ob that the Instruction June 1 1 , [880, ol the S. C. EE, et RR« as also the instruction Cum Magnoperex issued by th< ( de Prop. Fide, in [884, for the United States, has modified the discipline oi the Church, and made the above division untenable, at the present day at hast, in those countries where tin- above Instructions obtain. For according to these Instructions all repressive punishments whatever, and consequently not only those which are usually termed medi- cinalf but also those which arc' punitivey appear to aim equally, nay primarily, at the reformation or correction of the offender, and only secondarily at the atonement for the crime. Thus article II. of these Instructions says : " Haec vero (re- media repressiva) eum in finem constituta sunt, ut delin- quentes adbonam frugem revocentur, ac culparum consectaria de medio tollantur."
1673. We answer : We do not think the objection will hold. The article quoted from the Instruction does not ap- pear to warrant the inference that all repressive punish- ments are primarily correctional. Unless we are mistaken, it means simply that all repressive punishments — whether called vindicatory or correctional — have more or less both ends in view : namely (a) to cause the delinquent to amend ;
' Schulte, K. K., vol. 2., p. 387.
* See Reiff., 1. 5., t. 39., n. 5; Schmalzg., L 5, t. 37, n. 4, 5 ; idem, 1. 5, t. 39, n. 1. 2, 5; Leuren, For. Eccl., L 5, t. 37, q. 492, n. 4; idem, L 5, t. 39, q. £50, n. II ; Santi, Prsel., 1. 5, t. 37, n. I. 2 ; idem, 1. 5, t. 39, n. 1 ; Miinchen, vol. 2, pp. 119, 176; Prsel. S. Sulp. vol. 3, pp. 224, 247; Sanguineti, Inst., p. 459.
1 6 Various kinds of Ecclesiastical Punishments.
(b) to deter others from crime, (V) and thus to preserve so- cial order, and cause- the law to be observed and respected. It is true that the cud ot the Church is to save souls, to go after and reclaim the lost sheep. She never loses sight of this, even when she inflicts what are called vindicatory punishments. But from this it does not follow that in some of her punishments she cannot aim principally at the atone- ment for the crime and the maintenance of her laws. 1
1674. Correctional punishments are inflicted upon those who are guilty of crime and are contumacious or incorrig- ible at the time, but of whose amendment there is yet some hope. They arc to be preceded not only by a trial, but also by the canonical admonitions and the precept, as we shall see. For their chief aim is to amend the delinquent. Hence, when the superior finds that a subject has committed an offence which is deserving of a reforming or medicinal punishment, he shall first warn him ; and should the canoni- cal admonitions prove of no avail, he shall give him the precept. When even the precept fails to recall the delin- quent to the path of duty, he can proceed with the trial, preparatory to inflicting censure.
1675. Vindicative punishments are imposed upon those offenders, of whose conversion scarcely any hope is left, or who are convicted of atrocious or heinous crimes, which it is necessary to punish in order to deter others from similar crimes, or to avert or to repair scandal. 2 Yet even these punishments aim also at the reformation of the offender, though only secondarily. The Church never excludes this aim altogether from any of her punishments. s For her mis- sion or end is to save souls. Hence, when the Superior finds
1 Sanguineti, Inst., p. 459, says : " Cum igitur Ecclesise finis sit salus animarum, etiam in poenis materialibus, quibus plectit delinquentes, id potissimum curat, ut eo- rum salutem obtineat. Hinc pcense ecclesiasticae, etiam materiales, sunt medicinales, saltern quoad fieri potest."
PraeL S. Snip., vol. 3, p. 224. 3 Sanguineti, Inst., p. 459.
i
/ arious kinds <>/ EccL riastical l*unishih
\ h.ii « mm of I of an < >ff< ii' i a hi( I
desei \ in-, of a \ indu at \\ e punii hm< sal h <>m
parish 01 <»Nk <• he will, ev< n then, as .1 rule, laudablj the delinquent repeated admonitions and the precept; and only when these prove ineffectual will he proceed to th< 1 1 1.1I. prepai atorj to inflict ing punishment
[676. We say, laudably ; foi be is not obliged, as in th< oi correctional punishments, to giv< the warnings and the precept, but ma} . absolutely speaking, proceed at on< < to a trial and, upon conviction, impose the penalty. We aj al as a rule; for sometimes v. g., where the offence it very hei- nous and notorious the Superior may find it n iry or opportune to dispense with the admonitions and the precept
This whole teaching is beautifully laid down by the Third Plenary Council of Baltimore, n. 300, 309, to which we icier the reader.
Art. III.
Is the procedure for inflicting reformative punishments dif- ferent from that for imposing vindicative? Meaning of causa criminalis and causa disciplinaris.
1677. From the division of ecclesiastical punishments into punitive and correctional, some canonists take oc- casion to divide ecclesiastical proceedings and causes into disciplinary (causa discip/iuaris), and criminal (causa crimin- alis), according as the punishment to be inflicted is correc- tional or punitive. Here we may be allowed to digress somewhat from our subject, in order to explain these terms — causa discip/iuaris and causa criminalis — especially as these two phrases occur in the titles or headings of all the recent Instructions of the Holy See which treat of ecclesiastical trials. For proof of this, see the Instruction of the Propa- ganda, July 20, 1878, on Commissions of Investigation; the
iS / arious kinds of Ecclesiastical Punishments,
Instruction of the S. C. EE. et RR. of June 11, 1880; the Instruction Cum Magnopere, 1884. The heading of the latter Instruction is: " [nstructio S. C. de Prop. Fide de modo ser- vando in cognoscendis et denniendis causis criminalibus et disciplinaribus clericorum in Fcederatis Statibus Americas Septentrionalis."
1678. What then is the meaning of these two phrases? According to some canonists, who divide ecclesiastical pun- ishments into correctional and vindicatory, a disciplinary pro- ceeding, trial, or cause (causa disciplinaris) is that where med- icinal punishments are imposed. By medicinal remedies, they mean not merely censures, but also other remedies having the amendment of the offender in view, v. g., assign- ment to a religious house for a time.1 A criminal trial or cause (causa criminalis), according to them, is one where vindicatory punishments are imposed.2 This division of trials is based on the fact that the proceedings which take place prior to the infliction of vindicatory punishments dif- fer, so far as the canonical warnings and the precept are concerned, from those which precede the imposing of cor- rectional punishments. Thus, in the infliction of the latter, not only a previous trial is required, but moreover a pre- vious canonical warning and the precept; while in the im- posing of punitive remedies the trial alone is, absolutely speaking, requisite. The trial proper is the same in both cases. The difference lies in this, that for vindicatory pun- ishments the trial is, strictly speaking, sufficient ; for cor- rectional, the previous canonical warning and the precept are necessary besides the trial.
1679. We say, absolutely speaking. For the authors in question observe that the line" must not be too strictly drawn between causce disciplinarcs and cansce criminales. In fact, they say, and justly, that all ecclesiastical punishments
1 Miinchen, 1. c, vol. 2, p. 7, n. 8; p. 8, n. 9. 2 Droste, 1. c, pp. 2, 3.
/ ariom kinds oj EccUsiastical (s. 19
have always more 01 l< the amendment ol the delinquent in \ icw , that, consequently, if a rule, laudable, thou
perhaps not strictly obligatory, to giv< not merel) the trial,
but also the ca lical warnings and the precept, prioi to
Imposing even vindicator] punishments. Hence, the} practicall) speaking, the proceedings i»\ which vindicath punishments ai e inflicted ai e, in most thi ami
those by which reformative or medicinal on< ed.
Thus Droste, as edited l»\ Messmer, writes: " Eccl< iia tical punishments are l>\ custom divided into corrective and vindicative... According to tins, we ma} distinguish b tween disciplinar} and criminal proceedings... Il<>v. the terms disciplinary punishment and strictly called punish- ment, as well as disciplinary and criminal procedure, arc often interchanged ; the more, as the boundary Line between them cannot be easily drawn in practice."1
[680. These writers say again: "We have already re- marked above (n. 3) that the division of punishments into corrective ones, whose direct object is the amendment and reformation of the delinquent, and vindicative ones, whose direct object is mainly the restoration of the disturbed order and retribution, is in most cases rather logical than real. For all punishments effect more or less in the offender a change for the better. . . From this it will be seen that a strict di- vision of the procedure into disciplinary, i. e., such as applies to corrective or reformative means, and criminal, i. e., such as imposes a penalty for the committed offence, is not prac- ticable."2
1 68 1. The above explanation of causa? criminales and causes diseiplinarcs appears to be also in harmony with the rollow- ing authentic declaration given by the S. C. de P. F in an- swer to questions proposed by Bishops of the United States in regard to the Instruction Qua7nvis of July 20, 187/ " In-
1 Droste —Messmer, p. 17. * lb., pp. 78-79.
•*rt Various kinds of Ecclesiastical Punishments.
str-uctio diei 20 Julii 1878 lata est de casibus, in quibus ec- clesiastica pcena seu censura sit infligcnda, aut gravi dis- ciplinari coercitioni sit locus."1 Here then the Holy See declares that the trial prescribed in the Instruction Quamvis shall take place in all cases where (a) a vindicatory (pcena) or {&) correctional punishment (censura) is to be inflicted, or (c) where there is room for a grave disciplinary correc- tion. Now the above Instruction Quamvis, as is expressly stated in its title, prescribed the trial or mode of procedure which had to be followed by the Bishops of the United States " in cognoscendis et definiendis causis criminalibus et disciplinaribus clericorum." Consequently the Holy See would appear to mean by causa? criminates, causes where vindicatory punishment is to be inflicted, and by causa dis- ciplinares those wrhere correctional or reformative measures are imposed.
1682. A second explanation of the above clauses is, that by the phrase causa? criminates are meant causes, proceed- ings, or trials where transgressions of the moral law, as punishable in the ecclesiastical external forum, — v. g., drunk- enness, concubinage — are punished ; by the phrase causa? disciplinarcs those where an infraction of a purely disci- plinary law of the Church — v. g., the non-recital of the divine office — is chastised, whether the chastisement consist in a reformative or in a vindicatory punishment. Perhaps a better insight into this solution will be gained by recalling the division of the sacred canons into, (a) dogmatic, (b) moral, (c) and disciplinary. 2 The dogmatic canons relate to matters to be believed ; the moral are those which define the rule of action in matters which are intrinsically good or bad, such as false oaths, adultery, theft. The disciplinary canons are those which refer directly to the external discipline of the Church, that is, to the order, rules, and regulations made by
1 Our Elements, vol. ii., p. 422. Second edition, 1888. 3 Supra, vol. i., n. 137.
Various kinds oj / \stical Punishm 21
her for hei ;•< \\ I i ninni! .i .m extCl nil S< N l< ' Su< h I
the canons which determine the mode and tunc of fulfill:: the <li\ ine and naf ural precept . m hi m vei Lhi 1 not d< >ne h\ the <li\ ine 1 >r nat ural law itself ; u< h ai e, ok r, 1 he
rules which regulate the observance oi Sunday, oi regard the Paschal Precept, the appointment toe< < l< il offi( 1
the administration oi the sacraments oi othei a< I oi divine worship, the recitation oi the divine office, the celibac) of the clerg} , etc,
[683. Whatever m;i\ be said concerning this explanation, it should be observed here that the Church never inflii punishments for acts which arc mere sins,—*'. «•., which of- fend God i"~ the moral order, but do not at the same time redound to the detriment oi her external polity; nor, 1 ■versa, for acts which offend merely against her external social order, but do not in any sense contravene the moral order or law.
1684. A third opinion is that causce disciplinares mean causes and proceedings where a preventive remedy is im- posed ; causa criminates those where repressive punishment . vindicatory or correctional, are inflicted. Finally, a fourth opinion holds that by can see disciplinares are understood causes and proceedings where the violation of the precept is punished ; by causa criminates those where reatns communes and the violatio legum ecclesice are chastised.1 See our Ncio Procedure, n. 29, 30.
Art. IV. Ordinary and Extraordinary or Discretionary Punishments.
1685. Sometimes the law itself, that is, the Sacred Canons or lawful custom, determine the specific punishment for a certain crime. Thus the can. Si quis suadente diabolo, 29,
1 Cf. Instr. Cum Magnopere, art. x.
22 Various kinds of Ecclesiastical Punishments.
Caus. 17, Q. 4, enacts, that, if any person maliciously mal- treats an ecclesiastic, he shall incur excommunication. Here is a penal law having a determinate punishment or sanction annexed to its violation. Punishments of this kind are called ordinary {poena ordinarid). 1
1686. At other times the law or custom enacts, indeed, that a certain action or offence is punishable, and therefore it has a penal sanction annexed, though only a general one ; yet it does not determine what particular punishment is to be inflicted, but, either implicitly or explicitly, leaves the ecclesiastical judge free to inflict that punishment which he may deem proper and just, considering the quality of the crime and the circumstances of the case. These punish- ments are named discretionary (pcencz arbitrarice, poence extra- ordinaries). It should be observed, however, that in inflicting extraordinary or discretionary punishments the judge cannot proceed from arbitrary motives, but must be guided by right reason. His will must be the will of a good man {boni viri arbitrium) and not of a despot. 2 In other words, he is obliged to impose such punishments as will seem equitable and just in the estimation of good and pru- dent persons, considering the quality of the crime and the circumstances of the case.
1687. However, while in such a case the judge is allowed a certain discretion, he can, in no case, as was seen, inflict punishment for actions or offences which are not expressly designated in law as punishable. Consequently the Instr. of the S. C. de P. F. Cum Magnopere, issued in 1884, for the United States, distinctly says, that, when the Ordinary or other ecclesiastical judge pronounces sentence of condem- nation, he shall expressly mention the canonical sanction — i. e., the law of the Church which authorizes him to inflict the punishment in the case. The words of the Instruction
1 Reiffi, 1. 5, t. 37, n. 5. • Arg. 1. 6 et 1. 76, fif. Pro Socio (xvii. 2); Ferraris, v. Poena, art. i., n. 46.
/ i ncls <>/ /•( > /'■ • /
are " P r ac t i t u t a d i < n t < n t i a pronuntiatui
damnationi sit lo< quae ( i >in i .1 imputatum applicatur." (Art X X X I \
Art. v.
Punishments " ferendoe and lata sentential*
1688. Ordinar) punishments are enacted l>\ the law, either (a) in such a manner as t<> be incurred ipso jure or ipsi . thai is l>v the ver} fact of the commission oi tl
crime ; i/>) or only alter the judge has pronounced < condem- natory sentence in the manner prescribed by thi red Canons.1 The former are styled punishments lata sententt the latter ferendaj sententt
Art. VI.
Temporal and Spiritual Punishments.
1680. Finally, it should be observed that the punishments of the Church may produce not only spiritual, but also temporal effects, and accordingly they may be either tem- poral or spiritual. The temporal punishments of the Church are those which chiefly affect the temporal or worldly interests of the delinquent. They may be such as more directly affect (a) the soul, such as the loss of good name; or the (/;) body, such as whipping, exile, detention in a monastery ; (c) or also the property or possessions of the offender, as pecuniary fines. Spiritual punishments are those which deprive the culprit, either temporarily or perma- nently of a spiritual office or privilege, or of the exercise of sacred Orders, such as dismissal from benefice or office, privation of ecclesiastical burial, of active and passive vote in ecclesiastical elections, etc. 2 However, as Stremler 3 well
1 Schmalzg., 1. 5, t. 37, n. 11. 2 Schmakg.. I.e., n. 14. 3 L. c, p. 9.
/4 Various kinds of Ecclesiastical Punishments.
remarks, this distinction between temporal and spiritual punishments must not be so strictly drawn as not to allow in one also some of the elements of the other. Thus dis- missal from ecclesiastical benefice, office or dignity, (with us in the United States, dismissal of a rector) is a spiritual punishment ; yet it brings also with it a temporal punish- ment, since it causes the loss of the salary or income, and dishonor. The distinction, therefore, is based simply on the predominant or principal effect of each of the two kinds of punishment. "
1 Sanguineti, 1. c.; p. 461.
CHAP! II' ill.
w 1 1 1 : n AM> r.\ w HOM ECCU ICA1 PI m \h
1MI.U III).
An i. I.
For what unlawful acts can a Person be Punish
O, Q, For what Cause can ecclesiastical re] ft pun-
ishments be inflicted ? A. First, Canonical Punishments, whether vindicatory or
Correctional, can be inflicted only for crime, and for no other cause, as we have already seen.1 Hence no person can be
punished, save when he has committed a crime. This truth is founded in the very law of nature, and is also repeatedly and solemnly inculcated by the law of the Church, as a fundamental and essential condition of all punishment. Thus the sacred canons say : " Rem, quae culpa caret, in damnum vocari non convenit." 2 The Roman law expresses the same principle thus : " Sancimus ibi esse pcenam, ubi est noxa."'
1 69 1. Now, as we have already shown, a crime, in the canonical sense of the term, is an act or omission contrary to the law of the Church, and imputable to its author. 4 We say imputable ; now, where an act is wot wilful, that is, wrhere it is done without due knowledge or free will, it is not a human act, is not imputable to its author, and there- fore not punishable. Hence a violation of a law which proceeds from a want of knowledge, from grave fear, or
1 Supra, n. 1569. gCap. 2, de Const. (I. 2.)
8 L. 22 C. de poenis. 4 Tarqu., 1. c, n. 25.
20 When can Ecclesiastical Punishments be Inflicted.
from violence is but a material, not a formal, violation of the law, and therefore no crime. But of this later on.
1692. Second, The crime must be external. For it is manifest that internal acts or mere thoughts, and conse- quently offences which are committed merely in thought, cannot be proven externally and therefore lie beyond the pale ot the Church's external tribunal. Hence the Roman law, ' as adopted by the Church says: " Cogitationis pcenam nemo patitur." 2 And the Glossa, commenting on the canon Erubescant 1 1, dist. 32, writes : " Ex hoc patet, quod ecclesia non judicat cle occultis." ■
1693. Third, The crime must be personally committed. In other words, a person can be punished only for a crime which he has himself committed, and not for a crime which another person has perpetrated. Hence the rule: "Non debet aliquis alterius odio praegravari." * Our natural sense of justice tells us that the punishment should not extend beyond the criminal himself to a third party who is innocent. Thus Pope Boniface VIII. expressly enacts that excommu- nication should not be inflicted upon a whole body corpor- ate or community, but only on such members of said body as have been duly convicted of crime, lest, as he adds, the innocent might suffer with the guilty. His words are: " In universitatem vel collegium prroferri sententiam excom- municationis penitus prohibemus. . . Sed in illos dumtaxat de collegio vel universitate, quos culpabiles esse constiterit, promulgetur . . . volentes animarum periculum vitare, quod exinde sequi posset, cum nonnunquam contingeret innoxios hujusmodi sententia irretiri." 6 As to the sense in whicn an innocent person may sometimes be affected by or suffer (not punishments in the proper sense) through the crime of a third party, see Kober, Suspensions, p. 51. 6
1 L. 18 ft. de pcenis, (48, 19). 2 Can. 14, dist. I. de pcenit.
3 Cf. Munchen, 1. c, vol. 2, p. 46; Kober, Kirchenbann, p. 130. * Reg. 22 in dJ. ■ Cap. 5, in 6° (V. II.) 6 Reiff., in reg. jur., reg. 22-23.
// % (teal Punishments
[694. . the 1 nine must be mortal 01 Not
o!il\ 1 he law oi 1 ii' ( 'inn ( li. I'm 1 he verj la •• 1 »i nal m 11 s that there should be a just proportion i> tw< en 1 he < rime and it punishment, and that therefore, il the punishment s»\ ere, the ci ime must als< > be gi ievous. I h 1 t<
diet X i V..1 sp< aking of censun writ u If, accordi to the opinion oi all canonii 1 md heinous < rime
is required, in order to authorize the Superior to inflict a censure which is me rel) iae sententiat%\\ ismanifest that
a far greater md moi rable crime is n< try in order
that a person ma} be punished with a censure latae senten- tiae" What the Pope here says of censures, applies equally to all the other ecclesiastical punishments. For all the pun- ishments established by the sacred canons, whether they 1 punitive or correctional, arc heavy and severe punishments, and therefore cannot be inflicted for Light offences.1 Be- sides, as we shall see, no ecclesiastical punishments, il we except sentences tx inf. conscientia, can be imposed save by a canonical trial. Now it were ridiculous to have recoui to judicial proceedings for offences which are not of a very grave character.1
1695. Fifth, the crime must be, moreover, complete. Hence, for instance, a person who strikes another person, with intent to kill him, does not incur the penalty of murder, if he merely wounded him, or broke his arm, but did not really kill him. Consequently also the sole attempt to commit a crime, or the mere co-operation, whether by advice, com. mand, or otherwise, cannot be punished with the punish, ment decreed by the law for the crime itself, unless the law expressly states that not only those who commit the crime, but also all those who give aid, counsel, etc., or who attempt to commit the crime, shall incur the same penalty, as though they had perpetrated the crime itself. The rea-
1 De Syn., 1. x., c. I, n. 5. a Prael. S. Sulpit., vol. 3, n. 758.
3 Craisson, Man., n. 6325.
28 When can Ecclesiastical Punishments be Inflicted?
sim of this principle is, that penal laws must be strictly construed.
1696. Sixth, it must be proved Juridically, that is, by a trial, as prescribed by the sacred canons. This is founded in the very law of nature, and is repeatedly inculcated by the sacred canons in the most emphatic and solemn manner, as we have already shown. 1 In the United States no less than elsewhere, the crime must be proven and proved juri- dically, that is by trial as conducted either according to the latest Instruction Cum Magnopere of the Propaganda, issued in April 1884, or before the commission of Investigation, where it still exists by Papal dispensation, in the manner pointed out by article XII. of the Instruction Cum Magno- pcre. The only exception to this rule is that introduced by the Council of Trent, which in its 14th session, chapter I. on Reformation, authorizes Bishops, as we have already seen,2 to inflict suspension in certain extraordinary cases, ex informata conscientia, i. c, without any previous trial.3
1697. Besides, in the case of repressive punishments which are correctional or reformative, it is necessary that, before the trial is begun, the canonical warnings and the precept, as laid down in the Instruction Cum Magnopere, shall be given as we have shown. In the case of repressive punishments which are vindicatory, the trial alone is, absolutely speaking, sufficient. But even in their case, the admonitions and the precept will, as a rule, be laudably given before the trial is commenced, as we have stated already.
1698. Thus our divine Master, on the occasion of confer- ring upon His Church the power to inflict repressive pun- ishments, whether vindicative or reformatory, at the same time pointed out in a manner unsurpassed and as a pattern for all times, the order and the course of the criminal and
Supra, n. 1279-1306. 2 Supra, vol ii., n, 1282 sq.
:i See our New Procedure, n. 87-88.
When <<n: /■<</< siastical Punishments be !>■ disciplinai y procedure, in t intern /
in te •nn i/r in.
//, lucratus ft xtrem inum. Si <u<t,>n t, <
auditrit adhibe tecum adhui unv turn stet omn \
mttmfi nnonaudi 't tibi sicut tthnicus ft
public anus" ' Hereout Lord speaks first of a private reproof, and t hei ef< \\ e oi paternal wai n I a repi < k>( I" ft >i i
w Itnesses, and const quently oi the warnings in a legal form .md oi the precept ; and lastly, l»\ inf< ren< e, of the trial or criminal procedure.1 See our Procedure no
km'). Finally, t lie* crime must be dfsignatfdby law as punish able, as we have >een. Now there are two ways, in which the law designates a crime as punishable. First, the law expressly annexes a specified penalty to a certain unlawful a or omission; in other words, the law itself determines the particular punishment. Second, the law states thai an act is punishable, but docs not express what special penalty is attached to it, leaving the ecclesiastical judge free to inflict whatever punishmenl he may deem just. See our A\ Procedure, or a full and clear Explanation of the Instr. Cum MagnopfTfy n. 53 sq.
Art. II.
When are Persons Guilty of Unlawful Acts Free from
Punishments f
1700. Who are exempt from punishment. — We have already seen that a violation of the law, in order to be punishable, must be imputable to the person guilty of the violation. Now it is admitted by all, that only human acts are imputable. A human act is one that proceeds from a deliberate and free will. Hence it must spring from man as man, that is, from
1 Matth. xviii. 15 sq. - Cf. Cone. PI. Bait, iii., n. 300-309.
30 // 'hen can Ecclesiastical Punishments be Inflicted?
a human being as endowed with reason. The will is said to be deliberate when it determines itself freely to some act, with advertence to its malice or goodness. Hence the intellect or knowledge is the condition, free-will the effi- cient cause of a human act.
1701. Three things, therefore, are required to constitute a human act: I. knowledge; 2. will; 3. liberty. The will necessarily presupposes knowledge; since a person cannot will something which is unknown to him. Freedom in its turn presupposes both knowledge and will ; for liberty is the power of choosing between several things. Now a per- son cannot choose between two or more objects, unless he wills one or the other ; and he cannot will unless he knows} Opposed, therefore, to a human or imputable act are : 1. ig- norance or the absence of due knowledge ; 2. grave fear, or he apprehension of serious evil ; for a person acting from
jrave fear acts against his will ; 3. violence or force, that is, xternal or physical compulsion, actually inflicted upon a person by a third party.
§. 1. Ignorance.
1702. When does ignorance exempt from ecclesiastical punish- ments? Let us distinguish between the various ways in which a person may violate the law from ignorance. First, a person may be fully aware that his act is forbidden by the law, and yet be ignorant of the punishment annexed to his act. On the other hand, he may be unaware not merely of the punishment, but also of the law forbidding his act. Second, his ignorance may be conquerable ( ignorantia vinci- bilis) or unconquerable (ignorantia invincibilis), according as he can overcome it or not by due or ordinary diligence. Invincible ignorance is twofold : physical and moral. Ig- norance is physically unconquerable, when it can in no way
• Konings, n. 3.
When can EccUsiastical Punish m, tits he hi
be i< in«»\ ed ; morally, w hen it < an be lai< ' • due
diligent <
1703. In like mannei . 1 in< ible or < onquerable 1 is threefold 1, imply suck simplicili
iiaiiK I \ w hen, to 1 < ni«>\ e it, d ertion
used. 1 hough not en< tug h . ntia < \ w hen
no pains at all, oi scarcely any, are taken to overcome it ;
3, studied or intentional {ignorantia affectata), when a person wilfully or designedly and Intentionally shuns the means oi removing his ignorance, in order thai he ma) not be diverted from his purposes. '
\~o.\. It is certain, that, so far as correctional punishments (commonly called censures) are concern* d, ignorai fen
though conquerable, provided, however, il be nol studied, whether of the law or merely of the punishment, exemj from the punishment. ' We say, whether of the law; this point requires no further explanation. We say, or merely of the punishment ; this would seem rather incorrect at first sight.3 For a person who knows that the action which he is performing is forbidden by the law certainly commits a sin, and seems therefore liable to the punishment annexed by the ecclesiastical authorities to his act, even though he is unaware of this punishment. Yet it must be borne in mind that the reforming punishments, of which we are now speaking, are inflicted not simply for a wilful violation of the law, but for a violation of the law of the Church, which, be- sides being wilful and malicious, is also stubborn and obstinate, or joined with contumacy. Now the law of the Church takes it for granted that a person who violates the law, with a knowledge, indeed, of such law, but not of the penalty an- nexed, would not persist stubbornly in his perverse conduct, if he knew the punishment he would incur thereby. Hence
1 Konings. n. io. * Cap. 2. in 6° (I. 2) ; Konings, 1. c, n. 1664, qu. 2-3.
3 Supra, vol. i., n. 67S, sixth edition. 1887.
3 2 When can Ecclesiastical Punishments be Inflicted?
such a person is not regarded as contumacious, and therefore does not become liable to medicinal punishments.
1705. We have said, moreover, provided it be not studied; for such ignorance springs from design and utter indiffer- ence to or contempt of the law, and is therefore justly placed on the same footing with full knowledge. Hence an act which proceeds from such ignorance is just as punishable as though it had been done with full knowledge and delib- eration.
1706. Practical inference. From what has been said, Reif- fcnstuel and canonists in general infer that the faithful are very often exempt from correctional punishments or cen- sures, even when imposed by their own Ordinary, v. g., by episcopal statute; since they frequently do not know the penalty attached to an act which is f 01 bidden, though they may be aware of the fact that the act is prohibited.1
1707. As to vindicative punishments, ignorance, even though invincible, merely of the piinishment, does not, as a rule and absolutely speaking, exempt from such punish- ments. The reason is, that these punishments are inflicted directly and mainly for the purpose of making the offender suffer and atone for his crime, and only indirectly to cause him to amend. Hence they are incurred by any one guilty of crime, i. e., of a wilful violation of the law. Now a per- son who knows the law, and yet violates it, is certainly guilty of a wilful and malicious violation of the law, though he is unaware of the punishment ; and therefore he becomes liable to such punishments.
1708. We say, as a rule; for where it is expressly provided by the law that only those shall incur the penalty, who pre- sumptuously (temere), or advisedly (consulto), or knowingly (scienter) violate the law, or commit a crime, there mere ig- norance of the punishment, even though vincible, that is,
1 Reiff., 1. 5., t. 39, n. 32.
When can / ' Punishment* A Inflid
even though it could have been removed by ordin lili
h e, exempts from tin punit foment.1
i We li.i\ e als< > said, absolutely r/ I uld
be <\ ei i e nembei ed thai in .ill hei punishm< nl in
those- winch .in- called ; he ( Ihui ■ h, lik< od
mother, seeks not merel) lovindicati oi uphold the law, but also to i \m the delinquent. ( [uently all i
tical punishments, even those which are termed punitn partake more or less oi a reformative chai Heno
while, strictl} speaking, vindicatory punishment in-
curred even by those who are ignorant oi the punishment, yet practically the Church or ecclesiastical judge will not unfrequently in thes ither retrain altogether from
inflicting the punishment, or at least consider the ignoran a mitigating circumstance, and impose a lighter punishment
1 710. 0. Docs ignorance of the lawt (not merely of the pun- ishment), exempt from vindicative1 punishments?
A. i. First of all, it is certain that intentional or studied ignorance {ignorantia affcctatii) does not exempt. It is, more- over, beyond controversy that invincible ignorance exempts from the punishment. For a person thus ignorant violates the law without knowledge, and therefore without will or malice ; he is on that account excused from sin, and conse- quently also from all punishment.
171 1. 2. But does conquerable or vincible ignorance oi the law also exempt from punishment? Here canonists differ; the common opinion is that it does not exempt. The rea- sons on which this view is based are that such ignorance proceeds from culpable, imputable neglect to inquire into the existence of the law, and therefore does not excuse from sin nor from punishments that are punitive.2 Those, how- ever, who maintain the opposite contend that this reasoning holds indeed where a person is ignorant of the law owing to
' Cf. Munchen, 1. c, p. 45. 8 Reiff.. 1. 3, t. 5, n. 321, 322; ib., 1. 5, t 37, n. 5.
34 IV ken can Ecclesiastical Punishments be Inflicted?
the fact that he takes no pains at all, or scarcely any, to find out the law, but not where a person uses some diligence, though not enough, to remove his ignorance. For, they say, the Church inflicts her punishments only for a wilful, intentional and malicious violation of her laws. Now it can- not be said that a violation is wilful, in the full and penal sense, when it proceeds from ignorance as described. This view, they contend, seems also borne out by the sacred can- ons. Thus Pope Boniface VIII. says: " Ligari nolumus ig- norantes ; dum tamen eorum ignorantia crassa non fuerit aut supina." ! Here, according to these canonists,2 the Pon- tiff establishes the general rule that all ignorance of the law, save that which is gross or affected, exempts from punish- ment, whether punitive or correctional. Hence, they say, conquerable ignorance of the law (not merely of the punish- menf) exempts from punishment.3
1 712. This opinion, they say, is also in perfect harmony with the aim of ecclesiastical punishments, and with the more recent legislation of the Church.4 For all ecclesias- tical punishments, even those called vindicative, aim more or less at the amendment of the delinquent ; they are con- sequently imposed more or less for stubborn persistence in crime. Now a person cannot be said to be stubborn and incorrigible, when he does not know the law, even though his ignorance be conquerable and therefore sinful, provided, of course, it be not studied or affected.
1 71 3. One exception, however, must be admitted to this rule , namely, where a person, by reason of the duties of his office or position, is bound to make himself acquainted with the laws and regulations bearing on his office or duties. For in this case it is plain that a person is under a special
1 Cap. 2 de Const, in 6° (I. 2.) 2 Cf. Reiff., 1. c, 1. v., t. 39, n. 30.
3 Kober, Kirchenbann, p. 205-208 ; Munchen, 1. c, p. 45, n. 17. A Cf. Instr. S. C. de P. F. Cum Magnopere, art. II ; Cone. PI. Bait. III., n. 72, 300, $09.
When can Ecclesiastical Punishment* be Inflicted '
obligal i< »ii ol using i »i dinai y diligence to i >nn I
m u .iiu e, and to become at quainted with his duti< 1 1 n< c conquerable ignorance will not excuse him from punishment Thus a rector <>i a parish, in the United States, who neg- lects his duties .is rector, cannot plead, in extenuation, ig- norance of these duties, I li^ very ignorance is ol itseli a crime, rhe law ol the Church ver) justrj says: "Necig- norantia te excusat, si scire debuisti% ef quam debuera . non curast i diligent iara adhibere." '
i;i|. Another remark in regard to ignorance must be borne in mind. In the forum externum o\ the Church, the ignorance oi the law is not presumed, but must be proven. For, once the Church has properly promulgated a law, she justly takes it for granted that it has come to the knowledge of all whom it concerns, except those who are very illiter- ate. I lenee, if a person pleads ignorance as an excuse for a criminal act, the burden of proof lies upon him, i.e., he must show conclusively that he really labored under such igno- rance as will exempt him from punishment, according to the principles above laid down.
§. 2. Forget fulness and Ifiadvertence.
171 5. What has been said concerning ignorance applies also to forgetfulness and inadvertence. For it is clear that when a person violates a law of the Church from forgetful- ness or inadvertence, he does not wilfully violate it, unless his forgetfulness or inadvertence be culpable. Perfect for- getfulness and inadvertence are therefore placed on the same footing with invincible ignorance, and consequently exempt from ecclesiastical punishments, whether correctional or punitive. In like manner, imperfect forgetfulness or imperfect inadvertence is placed on an equal footing with conquerable ignorance.
1 Cap. ult. de injur, (v. 36) ; Miinchen, 1. c ; Kober, 1. c, p. 206.
Konings, n. 10.
36 When can Ecclesiastical Punishments be Inflicted?
§. 3. Violence and Fear.
1 7 16. As ignorance juris et facti exempts from ecclesiasti- cal punishments, in the sense explained, so does violence (vis, violentid) or the application of physical force, and grave tear {met us) or the apprehension of grave evil, as of death, of loss of property, of mutilation, etc. Whoever violates a law of the Church, under these influences, does not act with that free will and malice which are necessary to render him liable to ecclesiastical punishments. Besides, no human or ecclesiastical law obliges under such serious inconveniences. It is only when the violence is inflicted, or the threats that produce the fear are made directly for the purpose of ex- posing the Church and her laws to open contempt, that the person who is thus threatened or coerced is bound to resist the pressure brought to bear upon him, and that on pain of incurring the ecclesiastical punishments.1
1 71 7. It will be readily seen, from the above, that the great principle underlying all that has been said is this : that an action, even though otherwise criminal, done with- out a bad will, or an evil intention, is not a crime ; that no person can have a wicked design, unless he acts with knowl- edge and free will. Hence a person commits a crime only when he violates the law knowingly and wilfidly.2 From this it also follows that infants, idiots, lunatics, and imbeciles are incapable of committing crimes, and therefore can- not be punished for acts which would otherwise be crim- inal ; for they cannot harbor any criminal design or volition.
1718. Finally, we observe that in employing the term law, in the above places, we mean the ecclesiastical law, not the secular. Moreover, we use the term in its broadest accepta- tion ; in other words, by the word law, we understand all enactments and regulations whatever, which emanate from any competent ecclesiastical authority, that is, decrees and
1 Kober, 1. c, pp. 208, 209. 9 Cavagnis, I.e., p. 90.
When com Eicltsuuticat Punishtn
itatutefl ol P >pes, Bishops, and oth< I with jurisdii
i ion in foro txtet no ; <>i general, plenary, provincial and dio
.III S) IK'lls.
Art, in.
Who can Punish
1711). Who com impost tccUsiastical punishment There question (a) either ol making penal laws, (£)oroi actually in- flicting punishments decreed by law. \ to the former, it is evident that only those can enact punishments by law, who can make laws, namely the Pope, Bishops, and prelai having quasi-episcopal jurisdiction. As to Wv apitu-
lar, (with us, administrators) sec supra, n. (^7. As to the latter case, those1 only can actually iniiict ecclesiastical pun- ishments, who are lawfully appointed ecclesiastical judg with ordinary or delegated power. The power to pro- nounce sentence inflicting punishment pertains, as we have repeatedly seen, to the forum externum.
§. 1. Can the Bishop exercise contentious jurisdiction out of his own diocese ?
1720. The ecclesiastical judge must, as a rule, be in his own territory, when he inflicts punishment ; (or the law of the Church forbids the exercise of contentious jurisdiction out of one's own territory. Thus the Cap. Quamvis says : ,l Sacris canonibus (est") generaliter interdictum, ne quis Episcopus jurisdictionetn in dicecesi exerceat aliena." ■
1 Clem. Cap. unic. de for. Comp. (II. 2.) : cf, supra, n. 210.
This decretal or constitution was issued in the ^fieenth general Council, held at Vienne in France, in the year 131 I, by Pope CJpuent V. 1 1305-1314). The occasion of its promulgation was this : There was at t\e above Council a number of Bishops, especially from Italy, v. g., from Milan, Vicenza, etc., who had been expelled from their sees, by their enemies, barons and powerful noblemen and rulers. It was at the request of these exiled Prelates that the above constitution was promulgated.
Glossa ia Clem., cap. Quamvis cit., v. quamvis.
38 When can Ecclesiastical Punishments be Inflicted?
1721. From this rule, however, the following two cases must be excepted: 1. Where the Bishop of the place con. scuts to the exercise of such jurisdiction in his diocese, and the contending parties also agree to it. 2. Where the Prelate or Bishop is unjustly expelled or driven from his diocese ; for in this case the expelled Bishop can remain in some neighboring diocese or other convenient place, and there, having asked, though not obtained permission from the ordinary of the place, erect, his own judicial tribunal and exercise full contentious jurisdiction over all his subjects, provided, however, he cannot exercise this jurisdiction through a substitute in his own diocese, and provided that, in the case of his subjects who did not participate in his expulsion, they be not obliged to go more than a two days' journey to reach the Bishop.1 Of course, as will be readily seen, what has been said applies only to cases where a Bishop is actually about to inflict punishment. For a Bishop may everywhere exercise voluntary jurisdiction, and consequently he may everywhere enact penal laws or statutes.2
§. 2. Can a Bishop exercise voluntary jurisdiction outside
his diocese ?
1722. We have just said, " A bishop may everywhere exercise voluntary jurisdiction." As this teaching is of great practical bearing, we shall dwell upon it at some greater length, though it is here but an incidental question. We have already explained what is meant by voluntary and contentious jurisdiction (n. 210). Nevertheless, we deem it useful to elucidate the matter still further. Voluntary juris- diction differs from contentious both as to the subject matter, and the manner in which it is exercised.
1723. Voluntary jurisdiction is that which regards matters
1 Cap. Quamvis, cit. a Prod. S. Sulp., vol. 3., p. 239.
// 'fun ca
m .til. in B w hit h I bf I lil h< -p 01 Sup( i l( II ><
Dordinc to his < w n pi u< lent ju< lgm< nt, guided n< >f
1 1 .11 \ iim itives, but l>\ i he i uli s * >i nat ural i am I equit
,imi w hi( h he t .mi ex< rcis< wit h( ml i he foi malif i( i< li< ial
proo dure Sin b is r) t '< |urisdi< t ion,
by which the Superioi grants favors, privi I facultii
etc.; {6) the Ugislativ< and admini
winch he enacts laws, even though penal, makes appoint*
iiu in stoec< lesiasl ical offi< i jurisdh tion,
l>\ which be c< \\ his su mantu r.x
i | \\\ contentious jurisdiction is that which i ence to matters which are the subject oi controversy, and which must be decided according to the formalities laid down by the law of the Church for I and not by the
nunc will of the Superior. Causes oi this kind arc those where there is a dispute between I intending parti
name]} , (a) matrimonial causes, (6) and those relating to eccle- siastical offices and benefices; (e) the punishments of the Church, (namely those which exceed the limits of paternal correction), such as excommunication, suspension, interdict, dismissal, penal transfer, etc. In the decision of these causes, the superior must observe the rules prescribed by the Church, i. e., he must observe the juridical formalities of trials.
17.25. Now it is certain, as we have seen above, that an Ec- clesiastical Superior or Judge, whether he be an Ordinary or merely a delegated judge, must be in his own territory or diocese when he exercises contentious jurisdiction, and that he cannot, either licitlv or validly, exercise it while he is outside of his own district or diocese, excepting in the case of his unjust expulsion.2 For by an exercise of such jurisdiction in the territory of another he would evidently
1 Prael. S. Sulp., n. 279. 3 Cap. 7. deoff. legat. ^1. 30) ; L. 2 ff deoff. proc. (I. 16); Kober, Excom., p. 125.
40 When can Ecclesiastical Punishments be Inflicted f
disturb the latter's jurisdiction. On the other hand, all canonists agree, and it is certain, that a Bishop may exercise voluntary jurisdiction, wherever he ))iay be, as well while he is outside of his diocese, as white he is actually in it.1 For he does not thereby infringe upon the rights of the Ordinary of the place, since no external apparatus or display of authority is needed in the exercise of voluntary jurisdiction.
1726. This is beyond controversy, so far as concerns the ordinary voluntary jurisdiction of the Bishop. Does it also apply to the delegated voluntary jurisdiction of the Bishop ? In other words, and to make the question more practical : can the Bishops, v. g., of the United States, exercise the faculties they receive from the Holy See — which, it is needless to say, are delegated faculties — when they are out of their own diocese ? The reason of this question is, that the Holy See, in granting these faculties, has of course the right to prescribe that they cannot be used by the Bishop when he is out of his own diocese. In fact, it would seem at the first glance that the Holy See had in reality made this condition. For in some of the faculties usually com- municated to our Bishops, the Holy See enjoins on our Bishops " Nee illis uti possit extra fines suae dicecesis."2
1727. But as Father Konings well explains, 3 this re- strictive clause applies to those in whose favor the above dele- gated faculties are exercised, but not to the Bishop himself or the one exercising these faculties. The former must indeed be (a) a subject of the Bishop, i. e., have a domicile or quasi- domicile in the diocese, or be there as a vagus, (b) and also be actually in the diocese at the time the dispensation or favor is conferred upon him. For it is certain at present, from an answer of the S. C. Inq., given May 2, 1877, to the Synod of Maynooth, held in 1875, that the Bishop need not be in Lis diocese when he exercises the faculties granted him by
1 Prael. S. Snip., n. 756. 2 Fac, form I. and C. 3 Com. in. Fac. Ap. n. 118
// fk$n tan / < tie* A Infl\ \ \
Rome.1 l li<- dcci i< >n b foll< >wa i " Ad post ulatum t< inn.'' (S3 11. 1 >1 Ma} n.) " di ula Fat ultaturn i
1 1 tra fin re pi msum fuit : \ rl >a 1 f< u mulac
ii.i intelligenda, ut Episcopus uti possil facultatib
ci :>.i subditos, qui ai in quo dispensandi sunt in propria dio
1 commorantui i quamvis ipst Episcopal extra warn d\ at" *
1 0 -in sc, w here the above phra t( .
Is not appended to the faculties, the Bishop can them in favoi <>i those \\ ho are his subji n when th
are .11 the time out oi the diocese, just as in th< of his
ordinary voluntary jurisdiction, which a Bishop or Superior can exercise over his subjects, even though neither he nor they are in the diocese at the timi There is but one case where a Bishop cannot exercise his ordinary volun- tary jurisdiction when he is outside his own dio ly, where it would involve the exercise oi Pontifical func- tions (Pontificalia), v.g.% when a Bishop confers tin & la- ment ot Confirmation, or oi I [oly Orders. 4 For, as w seen above (n. 575), a Bishop cannot exercise Pontifical functions in the diocese of another Bishop witiiout the con- sent of the Ordinary of the place.
§. 3. Rules which guide the Judge, when he inflicts
Punishment.
1729. We subjoin a few of the general rules to be followed by judges: 1. Only the Supreme lawgiver — namely, the Sovereign Pontiff — can establish or introduce any new eccle- siastical punishment. Consequently the inferior Ordinarv or delegated judge can impose only such punishments as are provided by the sacred canons. This is also stated in the Instruction Cum Magnopere of 1884, article I., as follows :
1 Konings. in Fac, cit, n. 120. 2 lb. Com p., t. 2., p. 412.
3 lb., in fac, n. 124. 4 Craisson, n. 281.
4: When can Ecclesiastical Punishments be Iuflicted?
" Ordinarius pro suo pastorali nuinere tenetur disciplinam correptionemque clericorum ita diligenter curare, ut . . . remedia a canonibus statuta . . . provide adhibeat."
1730. — 2. The remedies or punishments established by the sacred canons are divided into two classes : Preventive and repressive.1 The Preventive remedies are imposed on Eccle- siastics who give scandal, or remain in the proximate volun- tary occasion of sin: they arc intended to remove the cause of the scandal, and the occasion of crime, and thus to prevent the Ecclesiastic from falling into crime.2 The repressive punishments are inflicted upon Ecclesiastics who are not merely in the occasion of sin, but have already fallen into grievous offences. They are imposed for a twofold pur- pose : (a) to bring the delinquent back to the path of duty ; {b) to deter others from breaking the law. 3 While all re- pressive punishments have these two ends, nevertheless some of them tend more directly to reform the delinquent, others to vindicate the law, and cause it to be respected and observed. The latter are called vindicative punishments, the former reformative, as we have seen.
1 73 1 . — 3. In inflicting ecclesiastical punishments, the judge should naturally bear in mind their end or aim. Punish- ments are a means to an end. The means should be such as are adapted to the end. Now, as we have seen, in all her punishments, the Church acts more like a good mother than a severe judge. The Church's mission is the salvation or sanctification of souls.4 Hence, in all her punishments, even in those which are called punitive and vindicatory, she aims, not merely at vindicating the law, but also reforming and reclaiming the delinquent. She never excludes this latter aim altogether.5
1 Instr. Cum Magnopere, Art. II. 2 lb.
3 [b. 4 Sanguined, 1. c, p. 459.
6 Cf. Stremler, p. 154; Droste — Messmer, pp. 66, 167; Schulte, K. K. R., vol. ii., P- 3»7-
Whin can /,..' ishmenU be In 43
1 1 n »in 1 lu ., ii toll- >ws, 1 hat . w hen an eccl< falla mil . 1 1 inn , not hin a 1 ule, be d< 1 be
amend and repairs hi offence, I tut if he pei ( 1 niiiii.il coin ' . Ii* should, as a 1 uie, be fii st w ai ned n (•IK ; ii the admonitions prove oi no avail, h<- should be \ en 1 be i»i ecepf j ii <\ en 1 he lat ter product ct, h<
should be piii on trial, and, il convicted, I"- visited with medicinal punishments, namely ires; and il even th
fail to reform him, vindicator) punishment >uld foil
We have jusl said, as a rule: for where the often* e committed is oi great enormity and therefore shows that the delinquent acted with exceeding great malice prepen and is. so to say, hardened in crime, or where the greatne of the scandal given requires it, the vindicat ive punishmen may be inflicted at once, that is, without the previous ad- monitions or precept, though not without a previous trial. -
[734, -5. In general, it may be said that it belongs to the conscientious discretion of the Ordinary to determine what particular punishment he is to inflict in a given case • whether he is to impose a preventive or a repressive remedy ; whether the repressive measure is to be a reform- ative or vindicatory one; what particular preventive medi- cinal or punitive measure is to be imposed. Thus Article III. of the Instruction Cuui Magnopere enacts: 4k Conscien- tiae ordinarii remittitur cujusque remedii (praeventivi vel repressive) applicatio, canonicis prasscriptionibus servatis pro casuum ac circumstantiarum gravitate."
1735. — 6. Where the law itself clearly states what punish- ment shall be incurred for a certain offence, the judge should, as a rule, inflict this punishment and no other. Where the law leaves the judge free to inflict whatever pun- ishment seems fair and equitable, he should be guided in
1 Sanguined. 1. c, p. 460. 2 Cone. Plen. Bait. III., n. 300.
44 When ran Ecclesiastical Punishments be Inflicted?
his action by good and conscientious motives, and always incline' to clemency rather- than to severity. Thus Pope Ho- norius 111. i A. D. 1220) speaking to the Ecclesiastical Judge,
\s: " In his vero, super quibus jus non invenitur expres- sum, procedas sequitate servata, semper in humaniorem partem deelinando, secundum quod personas et causas, loca
tempora videris postulare." J For other excellent rules for the guidance of the Judge, see Rota, Enchir., n. 752-761.
v also, in regard to the discretionary power of the Ordin- ary, our New Procedure, or a clear and full explanation of the Instr. Cum Magnopcre, p. 25, sq.
Art. IV.
Upon Whom ca?i Punishments be Inflicted?
1736. Upon whom can punishments be inflicted? Upon all subjects who are juridically convicted ol crime.2 We say, subjects ; here the question arises : In how many ways may a person become subject to an Ecclesiastical Judge so as to bd punishable by him ? The answer has been given above, Vol. II., Nos. 781-813.
1 Cap. 11. de transact. (I. 36). * Craiss., Man., n., 6317.
PART II. /■( ( LESL XSTIi Al PRE I 7 NTIVE PL WISH \f£ (Remedia /
m ml Remarks*
1737. Having thus fai shown what is meant l>\ canonical or ecclesiastical punishments, for \\ li:ii • l>\ \\ hom and in what manner the} are inflicted, we shall nov tkoi ea< li oi these punishments in particular. As wc have < en, the canonical punishments oi the external forum of the Church are divided into two classes, -preventive and repress. The chid preventive punishments are (a) spiritual exei
(£) admonitions, (1) and precepts. All the other canoni punishments, whether punitive or correctional, are called repressive punishments.' Under the present heading we shall treat of preventive punishments; in the succeeding, of repressive.
1738. What is meant by preventive remedies? They are those which have for their object not so much the punish- ment for a crime already committed, as the preventing or hind- ering it from being committed. Hence they are thus described in the Instruction Cum Magnopcrc, Art. II. : "Ilia (remedia praeventiva) ad praepedienda mala, scandalorum stimulos amovendos, voluntarias occasiones et causas ad delinquen- dum proximas vitandas ordinantur."
1739. While, however, these remedies are intended to act as preventives of crime, and are therefore imposed, generally speaking, upon Ecclesiastics who are in culpable danger of
1 S. C. EE. et RR., 1880., Instr. Ordinario, art. ii. et ix. ; S. C. de P. F., 1884, Instr. Cum Magnopere, art. iv. et ix.; Rota, Enchir., p. 408.
46 Ecclesiastical Preventive Punishments.
failing into crime, and who, by these remedies — namely, timely warnings, spiritual retreats, precepts — are to be brought to a realizing sense of their danger and approaching spiritual shipwreck, and thus snatched from their near spiritual ruin, it does not follow that these remedies cannot be imposed in cases where grave offences have been already committed.
1740. For, as we have seen, the law of the Church gives the Ordinary a great deal of discretionary power. It allows him, even where grave offences have been already perpe- trated, either to refrain altogether from inflicting repres- sive measures, or to remit them, if he judges it best, and if the enormity of the crime or the greatness of the scandal does not demand otherwise. Hence it permits him. a fortiori to apply preventive remedies, even where repressive ones could be justly imposed. All this is clearly implied in Ar- ticle III. of the Instruction Cum Magnopcre, and also in the Third Plenary Council of Baltimore, n. 309.
1 74 1. How many kinds of preventive punishments are there? As we have seen, chiefly these three : spiritual exer- cises, admonitions, and precepts. We shall now briefly dis- cuss each of them.
CHAPTER l
ilkl I i \i :
(Spiritualia /■ vercitia.)
Art. I.
How are Spiritual I: xercises Preventive Remedu
\i. We bave shown (n. 1 66 1.) that a punishment Is an evil, a pain or suffering, whether oi the bod j or the mind Inflicted for crime. Now a spiritual retreal may be im- posed in two ways, first, as a general means oi sanctifi< tion : second, as a punishment for censurable conduct.
[743. Spiritual exercises as a means of sanctification. The ministers oi the Church should, above all, strive to be holy and perfect. Hence they should frequently follow the < ample of our divine Master, and retire for a few days into solitude, in order to gain new strength in the service of God. It is for this reason that the Roman Pontiffs, especi- ally Pope Innocent XII., by encyclical letter of the S. C. EE. et RR., Feb. 1. 1700, and Pope Pius IX., in the encyclical Qui Pluribus, exhort Bishops to urge the entire clergy oi their respective dioceses, especially Rectors of parishes and confessors, to make a spiritual retreat once a year. The words of Pope Innocent XII. are: " Sanctitas sua eosclem Ordinarios admonet et hortatur ut. . . universos ex clero sibi subjecto, sed praecipue animarum rectores. confessarios . . . diligenter excitent ad eadem exercitia spiritualia saltern semel in anno peragenda." 1
1744. Hence also the schema 3, de vita et hon. cleric, cap.
1 Cf. Lucidi, de V. SS. LL., vol. 3., p. 295,
48 Spiritual Exercises.
ii. of the Vatican Council, proposed this enactment : " Et quo- mam in medio corrupti saeculi facile evenit, ut de mundano pulvere etiam religiosa corda sordescant, ad ecclesiastici vero ordinis dignitatem et sanctimoniam retinendam ac fo- vendam, pinm spiritualium exercitiornm institutum vel maxi- ma conducat ; omni studio curent episcopi ut clerici, prae- sertim parochi et confessarii, singulis saltern trienniis vel quad- ricuuiis certo dicrum spatio in opportunum aliquem locum iisdem peragendis exercitiis secedant." 1
In accordance with these directions, the Fathers of the Third Plenary Council of Baltimore, n. 75., enact: " Sta- tuimus itaque ut Episcopi clerum suarum dicecesium quotan- nis vel saltern singulis bienniis in sacrum istum secessum du- cant ut omncs mente cordeque renovati ... ad munus sacri ministerii fructuosius peragendum redeant." For similar reasons Pope Alexander VII., in his Const. Apostolica Sollici- tudo, Innocent XL, by encyclical letters of the S. C. EE. et RR., Oct. 3, 1682, and Benedict XIV., in his encyclical Ubi primum, ordained that all who were promoted to sacred or- ders should be obliged to make a retreat of ten days, prior to their ordination. 2
1745. Spiritual exercises as punishments. — Now it is plain that this sort of retreat has nothing about it which savors of punishment ; for it does not contain anything that could humiliate or debase a person, or lower him in the eyes of others. On the other hand, when the Superior commands an inferior, out of the above cases, to make a retreat, it is evident that such a retreat is humiliating and painful to human feelings, since it implies some wrong-doing and there- fore lowers a person in the estimation of others. Hence it is a punishment. Consequently this sort of retreat, which is the one of which the Instructions Sacra hcec and Cum Mag-
1 See Martin, Doc. Cone. Vatic., p. 132.
f. Bened. XIV., Inst. eccl. 104; De Syn., 1. II, c. 2., n. 16; Rota, Enchir., p. 417.
49
mptn ipeaV and ol which we hcr( treat cannot tx ira
pi. \ e foi .111 oit. ii. i ion w hi< h
to .in offen< e and pai tak< i >i it rial m • Su< h an \ olunta occasions and i au natcl) to ci imc. Sw h
are also other acts which, though not ofthemselvi rtiul, \»i appeal sinful in the eyes oi others and thus produce
tndal. The* a< I . moreovei . must be not <»< « ult, hut i ternal and Inn >wn to ot hei s. '
in. All this is clearl) indicated 1>\ the Instnn tion Cum Magnop< r, when that the preventi emedies, and
consequentl) also the spiritual exercises in the < tre or-
dained foi the purpose ol removing the occasion oi scan- dals .md the voluntary proximate <>< casions of sin. A Bish- op, therefore, has the right to impose a special spiritual re- treat upon an Ecclesiastic who is the occasion oi scandal, or who remains voluntarily in the proximate occasion of sin, and who consequently, though not yei guilty of crime, folio a slippery road leading to spiritual ruin. Such conduct is indeed already in itself an offence, though incipient, if we may use the word.
Art. II.
Hoiv arc they imposed ?
1747. Censurable conduct is not enough. The Bishop, before imposing any of the preventive remedies and con- sequently also spiritual retreats, is moreover obliged to ver- ify in a summary or informal, though not superficial man- ner, by due inquiry and examination of witnesses and other evidence, the existence of the above acts calling for a pre- ventive punishment. This is expressly enjoined by the In- struction Cum Magnopcre, art. v., in these words : " Antequam vero ea (remedia praeventiva) adhibeantur, summaria facto- tum recognitio prteccdat oportet."
1 Acta S.S., vol. 15, p. 377.
50 Spiritual Exercises.
1748. The object of this inquiry is chiefly twofold; 1. In order to prevent the punishment in question from being inflicted upon a person who may not be guilty of any of the above acts; 2. to prove the existence of these acts before the higher judge, in case the person who is commanded to make the retreat or undergo any other preventive punish- ment appeals against this command. ' For this purpose, also, the Instruction Cum Maguopcre expressly enacts that a written record shall be preserved by the Bishop or Or- dinal v of this inquiry. J
1749. Finally, in what manner is this preliminary inquiry to be conducted? 1. The object of this inquiry is to authorize the Bishop to impose a preventive, i. e., a paternal remedy, and not a repressive punishment, vindicatory or correctional. I [ence this whole investigation should partake of a fatherly character and be conducted in a paternal spirit. Consequently it should be made by the Ordinary in person, since the Bish- op is pre-eminently the father of his clergy. 3 If the Bishop. for good reasons, is hindered from conducting it himself, he may depute another Ecclesiastic to do it for him. This Ec- clesiastic should be a man of great prudence and integrity, who will not be swayed by feelings of hatred or dislike, and who is therefore wholly free from any prejudice against the person whose conduct is being investigated. 4
1750. — 2. It should be made in an informal manner, i. e., in a plain, simple manner, and without any juridical formality. For, as has just been said, the whole proceeding is con- ducted by the Bishop as a fatJicr rather than as a judge. * This is also indicated by the words of the Instruction Cum Maguopcrc, art. v., — summaria factorum recognitio. In order to verify the facts in the case, it will nearly always be neces- sary either to examine witnesses, or experts, or other evi~ dence. But this examination of witnesses, etc., should be
1 Instr. Cum Magnopere, art. v. 2 lb. 3 Acta vS. S., vol. 15, p. 380.
4 Rota, Ench., p. 414. 6 Droste, 1. c, p. 76.
it itua ' && >
i , hi, in. ted, a wa ccn, u if h< >ul any judi< ial foi malil rhcrcforc neithei the diocesan prcsecutoi noi the notar) should take .iu\ pari 111 M . i "' !'«■ i"' B( iii at II , I ii« i »tii oi these officials begins only aftci the Bishop, ha in
\,iiu applied the preventive measun makes up hi mind to ordei the trial prioi to imposing a repressive remedy.
i ji, j, h is conducted non citato mi constitute no% that is, the accused person has no right to be called to 01 to be present at the examination ol witnesses 01 ;-i\ other part "I this investigation. ' For it is made merely for the informs tion oi the Bishop. Besides, the accused cannot be invited or railed upon to defend himself, unless there < rists already at least .1 half proof oi his guilt, which is not supposed to be the case at this stage of the proceedings. Then again, the witnesses, or other evidence in the case, are not examim
for the direct purpose Of Obtaining juridical proof and of inflicting repressive punishments, but merely for the sake of gaining extrajuridical information and of imposing fa- therly remedies. However, after this investigation is con- cluded, it is advisable for the Bishop, before he imposes the preventive measure, to call the accused to himself and in- form him of the information and evidence obtained in the inquiry, as we shall presently see. 2
1752. — 4. The whole inquiry, v. g., the examination of the witnesses, etc., should be made as secretly as possible, so that it may not become known in public : because otherwise the good name of the person inquired into would suffer. 3 Nay, it should be conducted in so prudent a manner that it will not become known even to the accused himself, lest otherwise his feelings be unnecessarily hurt. 4
1753. We have seen that the preventive punishment "an- not be imposed upon an Ecclesiastic, save when he is g\s ^tv
1 Rota, Enchir., pp. 413, 414. 3 Pierantonelli, Praxis etc., p. 74 sq.
8 Rota., 1. c, p. 414. 4 Droste, L c, p. 77.
52
Spiritual Exercises.
of actions which arc the proximate occasions of sin or which give scandal. The question now arises: Is the Bishop obliged, before proceeding to inflict a preventive remedy, to have full proof {probatio plena) of the existence of the above actions, or is half-prooi {probatio semi-plena) sufficient ? ' All the commentators of the Instruction Sacra Ha?c of June II, 1880, agree that half proof is at least required for the pre- ventive remedies properly so-called. We say, property so- caltcd ; for some distinguish between the monitio pater na and the monitio canonica, and maintain that to give the monitio patcma, it is sufficient for the Bishop to have proofs or indica- tions of guilt or of the above sinful actions, which are some- what grave and strong, though they need not attain to the grade of half proof. 2 The other commentators who, as we shall see, teach that the canonical warnings, of which the Instruction Cum Magnopere, Art. IV., VI., speaks, mean both the paternal and the legal or canonical warning, say that half proof at least is always required. 3
1754. Whatever may be said on this head, all the above canonists agree that, if after the above inquiry or summaria factorum rccognitio, it is found that the evidence or proof of ihe faulty conduct of the person against whom the investi- gation was made, though not amounting to an imperfect or half-proof, is yet of a grave character and not to be despised, it is advisable for the Bishop, before going any further, to call the Ecclesiastic in question to himself and to inform him of the charges which have been made against him. As to whether he should also tell him who the witnesses or ac- cusers are, or where and how he obtained the information, must be left to the discretion of the Bishop. Droste * says that, though the law does not require it, yet in most cases it
1 We speak, of course, of extrajudicial proofs. For the inquiry which is to pre- cede preventive remedies is extrajudicial. See our New Procedure, n. 46.
• Pierantonelli, 1. c., p. 77 ; Droste, 1. c, p. 78. 3 Acta. S. S. 1. c, p. 37.
4 P. 78.
Spiritua< I ttra 53
w,ii be found a<h i able foi th B bop to i« I the m cuaed know who bis a< cusera tr< and ;tl <» \\ ho tin- w >t n<
that be maj not think that bia Supei ioi pbu 1 1 mon i on fidcn( e mi others than in bim, Next th< Bi bop should a I,,,,, for his statement oi the i a i and allow bim I irhat
be thinks proper In his oi* n defent e. M be in n
futing the charges, nothing further should l>» done. I>m if lu- dors not sneered in breaking the force oi the evident the Bishop should then, in .1 paternal manner, rep\ vtreat, and rebuke him in all kindness and doctrine without making any threat whatever oi punishment.1 II bethen promises to desist from bis evil course and repair the scandal be has given, and in realit] keeps his promise, nothing further should be done. 11 the Bishop docs not think it proper to
invite the Kcclesiast ie to eome to him, he may appoint an- other worth n and prudent Ecclesiastic to perform this office for him, or he may send the fatherly warning by I< t-
ter — which must be private and not official.2
1755. If the accused disobeys the fatherly admor.it ion, and the Bishop finds that there is at least a hall proof of culpa- bility, he may forthwith impose one of the preventive reme- dies, namely eithei the canonical admonition, or spiritual exercises, or the precept. However, before imposing the prccctptum, he is obliged first to give the canonical warnings. For the Instruction Cum Magnopere clearly states that the precept is to be given only when the canonical warnings produce no effect. s The precept not unfrequently contains a command to make a spiritual retreat.
1756. We say, and if the Bishop finds that there is at least half-proof ; for, as was seen, the Bishop cannot impose the preventive remedies, unless there exists at least half-proof of culpability. This half-proof may arise not merely from
1 Cone. Trid., Sess. xiii.,C. I., de Ref. s Cone, PI. Bait. III., n. 344.
3 Art. VII.; cf. Acta S. S., vol. 15, p. 381.
54
Spiiitaal Exercises.
the testimony of one trustworthy witness, as was seen above, n. 1753, but under certain circumstances also from the refusal of the party to come to the Bishop, when asked to do so, or from the admissions which he makes to the Bishop, in case he does come, or in general, from his extrajudicial confession, ! or other sources of information. On the man- ner of imposing preventive remedies, see also our New Pro- cedure, n. 60-64.
1 Acta S. S., 1. c.,p. 381; Pierantonelli, p. J.
CHAPTER [I.
CAN<»\I< \l ADM* 'MM' NTS,
{Monitio ( anoni
Ar i. I. What arc the Canonical Warnings?
1757. ^s n;,s been already noted, admonitions arc classed by the Instruction Cum Magnopere% Art. IV.. \'l., among the
preventive punishments Or remedies. What then IS nx ant
h\ a canonical warning? It is the Legitimate act oi the
Superior calling upon a subject to amend and correct his | prehensible conduct and to make due satisfaction therefor.1
We say, legitimate act, etc., because the canonical warning, in order to he competent, must be made in the manner pi scribed bv the Sacred Canons: hence its name canonical warning. That there are admonitions which are in no sense punishments, all will admit. Thus a general exhortation to perfection is an admonition; every sermon is a series of admonitions. Vet they are not regarded as punishments in any sense of the word; for they inflict no pain or humilia- tion upon the hearer, especially as they are addressed to all and not to any one in particular.
1758. But the case is different when we speak of a re- proof, or rebuke addressed by the Bishop to one of his Ec- clesiastics because of blame-worthy conduct. Such a warn- ing is, of its very nature, painful to the feelings of the per- son warned ; it is addressed to him individually and is based upon the belief that he is guilty of wrong doing at least in-
1 De Brabandere, vol. 2, n. 1397.
56 Canonical Admonitions.
cipient, and therefore it lowers him in the eyes of others. It is, therefore, :i punishment, whose object is to prevent further and greater evil than that which has been already perpetrated. And in reality, it is plain that, when a Bishop informs one of his Ecclesiastics that his conduct is repre- hensible and irregular, and indicates to him a different line of conduct to be followed, such a warning is naturally humiliating to the person thus addressed and grates harshly on his feelings, ■ no matter how delicately and prudently it may be given. Hence any such warning, even though made in a kind, fatherly, and informal manner (monitio paternd), is a punishment.
1759. This holds a fortiori of the warning which is given /;/ a legal manner (in forma legali), i. e.y with all the formali- ties prescribed by the sacred canons. For in this case the admonition, given as it is, in an official and formal manner, becomes evidently far more painful and humiliating than that which is given in a fatherly and informal way, and with all possible prudence and delicacy.
Art. II. When Can the Warning be Given ?
1760. Consequently the first condition of imposing the canonical warning is culpable conduct. In other words, the Bishop cannot reprehend an Ecclesiastic, even though it be merely in a fatherly way, 2 except when the latter is guilty of censurable acts or reprehensible conduct, as explained above in the case of spiritual exercises. For the very law of nature dictates that, as a rule, there shall be no punish- ment where there is no offence. 3
1 761. The second condition is, that this censurable con- duct shall be verified by a " summaria facti recognition as we
1 Miinchen, 1. c, vol. 2, pp. 239-241. 2 Rota, Enchir., p. 421. 3 Rota, 1. c.
Cat <U \dmonitions* 57
li.i\ c show 11 in ili« of i"i it hi1 1 1 "* •'
,i \ to explain again in w hat mann< 1 1 his inquii to be made, ii" 1 w 1 ha \ 1 full} unf< »lded 1 his point ab in speaking ol 1 !"• retreat here
; in w hat w <• li.i\ <• .1I1 < ."I \ affii med, namel} , 1 hat at : half-prooi, though extrajudicial, oi the guilt oi irregulai conduct must be obtained in the above preliminary inquiry, before a canonical warn an be given. Anj inferior
grade ol proof, though sufficient for the canonical warning given paternally, would make it incompetent and void, when given in .1 legal manner Canonists, mor< ov< that, even where the degree oi prooi of guilt would justify the Superior in giving the canonical warning proper, it is always advisable to let tin- paternal warning precede the canonical,
[762. Finally, the old adage should be borne in mind thai there shall be a just proportion between the guilt and the punishment As the warning in question, especially when conveyed in a formal and official manner, is very humiliating, especially to Ecclesiastics, and is, therefore, a serious punish- ment, it follows that it cannot be given, except when the offence or reprehensible conduct is of a grave character. Slight offences should not be noticed by the Superior — De minimis non curat Praetor.
Art. III.
Is it Necessary that the Canonical Admonitions shah be Given
in a Legal Manner ?
1763. Q. Is it optional with the Bishop to make the canonical warnings either in a paternal or in a legal man- ner ?
A. We premise: The reason why we ask this question lies in Art. VI. of the Instruction Cum Magnopere, which
58 Canonical Admonitions.
reads thus: "Canonicae monitiones vel secreto fiunt (etiam per epistolam vel per interpositam personam) ad modum paternae correctionis, vel servata forma legali adhibentur, ita tamen ut illarum executio ex aliquo actu pateat."
1764. We now answer: There are two opinions; one affirms,1 the other denies. The affirmative teaches that the above article enacts that the canonical warning can be made either in a paternal, i. e.} informal manner, or in a legal i. c, formal way, namely with the formalities pre- scribed by the Sacred Canons ; that the Bishop is therefore free to give the canonical warning in either of these two ways, as he may judge proper and opportune. According to this view it is immaterial and makes no difference whether the canonical admonitions are given in a fatherly or legal manner ; either mode is sufficient and both are not necessary. The Bishop is at liberty to choose the one or the other, as circumstances may demand. All that is necessary is that their execution or their having been really given be proved. 2
1765. On the other hand, this view would appear to be in open and direct contradiction with the prescriptions of the Sacred Canons. The latter require in the clearest, most emphatic, and peremptory terms, and under severe pen- alties, that the canonical warning shall be made only in a legal manner i. c, with all formalities prescribed by the Sacred Canons, 3 as laid down in our New Procedure, n. 70.
1766. To avoid this difficulty, some commentators of the above Instruction, v.g., Droste,4 interpret the above Article VI. of the instruction as having reference only to the paternal warning, which is made obligatory prior to the giving of the prceccptum, and hold that the canonical admoni- tion, in the strict sense of the term, consists in the prceceptum,
1 Cf. Acta S. S., vol. 15, p. 381; Rota, Enchir., p. 422. 2 Rota, 1. c, n. 632; Acta S. S., vol. 15, p. 381. 8 Cap. 48 de sent. exc. (v. 39); Kober, excom., p. 157 sq. 4 L. c, pp. 102, 103.
I anonuai . \dmanitiofi
<>i w in. h \i tii lea VII. and VIII • p- ik. In fa< t, I aj
the /*/"•< fftufHy both as to its intrin u form 01 mattei and it extei n. il f< >i in, ft < ., i he f< u malit i< \\ il li w hi( h it is to kx made, * 01 n sponds exa< 1 1 \ to the i anonii al warning pro]
as defined in the Sacred Cai i and i tplained l»\ can<
I lence, they continue, although Article \ I oi the atx i Instructions uses the words canonicct monitionesy if would, nevertheless, seem to speak rathei oi the paternal, or, il we may use the word. semi-canoni< a] or s< mi offi< ial, than ol the strut canonical warning, and to insinuate that, even win this warning is made in a legal manner, it nevertheh should, practical I3 speaking, take the place of the fatherly admonition, \\ hich, however, is made obligatory prior to the imposing oi the praceptum or the canonical warning proper.
[767, But it may he asked, if this he so. why should the above Article VI, employ the words monitions canoni and expressly allow the Bishop to make them in a legal manner? They answer thus : 1. As to the words canonica monit tones, the informal or fatherly admonition may and is in a wide sense justly called a canonical warning. For the Sacred Canons, and especially the Counc1'! of Trent, urgently exhort Prelates always first to make use of repeated fatherly warnings before coming to more official ones. '
1768. — 2. As to the second objection, the above Article VT. seems to insinuate that there are some cases where the Bishop mav tind it more opportune to give the warning in a paternal and informal manner ; and that there are others where he mav deem it better to give it in a legal and formal way. Thus the Bishop may know that, with regard to certain persons, a paternal warning, given in a most prudent and delicate manner possible, will produce the desired effect. In other cases, he may be morally certain, v. g., where he
1 Cone. Trid., sess. xiii., c. 1. de Ref.
60 Canonical Admonitions.
has already given repeated fatherly warnings in vain, that a formal admonition is necessary in order to impress the delinquent with a salutary fear and cause him to amend. The Instruction, therefore, would seem to have had these contingencies in view, and accordingly to have left the Bishop free to choose either mode of giving the required warnings, according to circumstances.
1769. — 3. It might perhaps also be said that, as the Council of Trent1 prescribes that at least two warnings shall precede the infliction of correctional punishments, 2 the moni- tioncs canonical of article VI. of the above Instruction might be regarded as the first canonical warning, and the pra>ceptnm as the second and last.
1770. Here we remark, in passing, that, even though it be said that the prceccptum constitutes the strict canonical warn- ing, and that the monitioncs canonical of article VI. of the In- struction, no matter whether they are made in a fatherly or legal manner, practically take the place of the fatherly warnings, it is certain that they also partake somewhat ol the nature of the strict canonical warning. For they must be given prior to, and serve as a basis for imposing the prceccptinn and for beginning the judicial proceedings. Thus, they constitute the first canonical warning — the prceccptum being the second. Now the mere fatherly warning, as com- monly understood by canonists, possesses neither of these qualities, since it can never serve as the basis of juridical proceedings, or be considered as the first of the two or three canonical warnings. Consequently, as we have said, the canonical warnings mentioned in article VI. of the Instruction are semi-official or semi-canonical warnings, par- taking partly and chiefly of the nature of the fatherly and partly of the strict canonical warning.
1 Sess. 25., c. 3. de Ref.
2 The Sacred Canons enacted prior to the Council of Trent require three warnings, as was seen.
( a tmoniti >. 61
1771. 'I'h' 1 md 1 >pini( m int< 1 preti t h< Article VI, oi the In truction Cum Magnop^
disjun( 1 \\ 1 l\ "I two kinds « »i admonitions the paternal and the canonical proper, and as imposinj 1 obligation
oi making the canonical admonition in a legal mannei and, therefore, as n<>i leaving the Bishop free to make it eithei legall) or patei nallj , as he ma] fit.
1772. This ap] to be the \ i< u taken by the Third Plenary Council of Baltm I 1 ouncil < that, in i cordance with the Instruction Cum Magnop< r< . An. VI., the paternal warning should be given first; next, the can- onical, which shall be made with all the formalities pi
ribed by theSacred Canons; finally the praceptum.1 The words oi the Council are: "Modo paterna reptionis
(Matt wiii.. 15 17) eum (inquisitum) moneat, u1 ad sensus meliores redcat ... at si . . monitiones paternas sperant, Episcopus monitiones canonicas adhibebit, servata omnino J< ma legali. Tics numero Bant, sc\ dierum spatio explenda . . . Ouod si monitiones in irritum cedant, Ordinarius jubel per curiam delinquenti analogum prceceptum intimari " . . . On this whole question, see our New Procedure, n. 65-69.
Art. IV. How arc tJic Admonitions given Paternally t
1773. Q. What formalities are to be observed by the Bish- op in making- the canonical warning ?
A, We speak here of the monitiones canonical of article VI. of the Instruction Cum Magnoperc. Having explained what these admonitions are, and what conditions are required prior to their being given, we now come to the formalities with which they are to be made. It is necessarv to distin- guish, at the outset, between the legal and the fatherly mam
1 Co»c. PI. Bait. III., o. 309.
62 Canonical Admonitions.
ner, in which the canonical admonitions are given. When given paternally, it should be made in as informal a manner as possible, so that the person warned may plainly see that it proceeds from the Bishop acting not as judge but wholly as father, who, in all kindness and paternal goodness, goes alter the stray sheep in order to reclaim it, in imitation of our divine Master.1 Hence this paternal admonition should he made secretly, charitably, and prudently.
1774. First t then, the canonical warning, when given paternally, should be secret, that is, nobody should be present at or made privy to it, except the Superior warning, and the Inferior warned. In other words, it should be made under lour eyes. This mode of making the fatherly admonition is laid down by our Saviour Himself : " If,'' He says, " thy brother shall offend against thee, go and reprove between thee and him alone." 2 This is also clearly pointed out by the Instructions Sacra ha?c of June 11, 1880, and Cum Mag- nopere of 1884, (Art. VI), when they say : " Canonicas moni- tiones vel secreto hunt (etiam per epistolam vel per inter positam personam) " etc. Consequently it should be made, if possible, (a) by the Bishop in person, (b) orally, (c) and as privately as possible, i. e., without any witnesses and in so secret a manner that it will not become known to any one. The best way, therefore, to make it would seem to be the one traced out above, under the heading of spiritual retreats.
1775. It consists, as was shown, in the Bishop's calling the delinquent to himself, making known to him the accusa- tions, hearing his explanations, and then, if the latter are not satisfactory, giving him the fatherly warning, i. e., pointing out, in a kind and prudent manner, the wrong he has done, or the danger he is in, and suggesting the proper remedies, v. g., the avoiding this or that place, such or such a person, or performing a retreat.
1 Matth., xviii., 12. 2 lb., 15.
CUnonica \dmonit\ t
1776. We ii."\ c said ab n U >i vrhere t he Bishop finds it Inopportune 01 impossible to make the ad- monition in i" 1 son, he can appoint some othei worth} and prudent person i< > make it foi him, But h< hould n< »i s< \> 1 t loi 1 ins 1 ni rpose eit hei his \ < nei al, oi any < >1 hei 1 >ffi cial ol his curia, lest it would seem to partake oi a judicial chanu tei . ' In like manner, it the Bishop deem - it inoppor- tune to g^ive the admonition orally t and thateithei in person, or through some other discreet person, he ma) send it to the delinquent by letter^ which, howevi r, a be private^ signed only bj the Bishop, and not count ed by his secretary, as official and juridical document
As in tlu- admonition given orally, so also in the one given by letter, no threat whatever should be made oi punishment
1777. Although this kind ol warning should be as < 1 ret as possible, wi a private record or memorandum of the
whole affair, and ol the inquiry that preceded it, should he
made and preserved by the Bishop, so that, in case of ap- peal, he may forward a statement of the case to the judge of
appeal, or else for the purpose of enabling himself to take ulterior steps, if need be. 2 We say, a private record ; hence neither the warning, nor the proof of its execution, nor the in- quiry, which preceded it, should be kept on file in the Episco- pal chancery. These papers should be kept by the Bishop in a private place, and apart from his official papers. 3 He must likewise, while giving it as secretly as possible, nevertheless give it in such a manner that he will be able from some act or other, v. g., from a letter of the person warned, to prove that the warning was really given to the delinquent. For if the person warned denies that he has been warned, the Bishop must prove it. 4
1778. Secondly, this admonition (the same holds, in a
1 Droste, 1. c, p. 80 ; Rota, Enchir., p. 423. - Instr. Cum Magnopere, Art. V. 3 S. C. EE. et RR.. 7 Oct. 1801 ; Droste, 1. c, p. 80. 4 Instr. Cum Mapiopere, Art. VI.
64 Canonical Admonitions
measure, also of the formal warning and the precept) should be made charitably, so that the person warned will see that it proceeds Irom compassion and kindness, and not from hatred or dislike. Lastly, it should be made with tact and prudence, i. c.% it should be made in such time, manner, and place as are likely to cause it to be received in good part.1
1779. Practical observation. — The Instruction Cum Magno- pcrc ol 1884 enacts, indeed, at least according to the opinion of some canonists, that it is optional to give the first can- onical warning either in a fatherly or in a legal form ; that if it be disregarded, the prceceptum, or second and last canon- ical warning, can be at once imposed ; that, if even this command be set at naught, the trial looking toward inflicting punishment can forthwith follow. Yet it is also plain that article VI. of the Instruction Cum Magnopcre, by its way of designating both the paternal and the legal warning as can- onical warnings, impliedly advises Bishops to proceed, as a rule, in the following order : first, to give repeated warnings in a fatherly manner ; next, if they prove abortive, to give the warnings in a more formal, i. e., in a legal manner ; finally, if even the latter produce no effect, to impose the formal precept, or canonical warning in the strict sense.
1780. This is also the course traced out by our Lord Him- self. First, the delinquent is to be admonished paternally, i. e.f privately. " If thy brother offend against thee," says our Divine Master, " go and reprove him between thee and him alone." Next, if the delinquent will not amend, he should be admonished in a more formal manner, i. e., before witnesses : " If he will not hear thee, take with thee one or two more, that in the mouth of two or three witnesses every word may stand." Finally, if he still remains obdnrate, he is to be handed over to the Church or judge, for trial and punishment. 2 It is true that this mode of procedure i* pre-
1 Corn, a Lapide, in Matth , xviii. 15. 2 Matth., xviii., 15-8.
( ■ tdtnont
i ibcd tin eel I \ foi pri vatc indi\ i( lual Bui il al o applii t>\ unpin at ii 'ii, i< » Supei ion For oui Lord exp] of nature, which tells us that, before proceeding to inflict punishments, the Superioi should do all in his po b)
kindness and fatherly advice, to re< laim i he offender, lest, i»\ being visited with punishments before l" ing warned in su< h a kind manner, the offendei m.i\ become still more hard ened in sin, '
1781. Hence, as w en, the Council oi Trent most earnestl) urges Bishops to strive, before inflicting any pun- ishment, " l>\ exhortation and admonition, to deter them (of- fenders) from what is unlawful ; to reprove, entn at, rebuke, in all kindness and doctrine, those who should happen to sin in any manner through human frailty, seeing that benevoL t towards those to be corrected often effects more than au- sterity; exhortation more than menace; charity more than
ver" The Council then gives, in these beautiful words, the reasons lor this course: "Since it is the office ot a pastor, at once vigilant and kind, to apply Jirst of all gentle fomentations to the disorder of his sheep, and afterwardsto have recourse to sharper and more violent remedies, when the grievousness of the distemper may require them."3
Art V. Formalities of the Admonitions when given in a legal Manner.
1782. We now come to the formalities which are to be observed when the canonical warnings are made in a legal or formal manner. The general teaching of Canonists is that the legal mode of making the canonical warning i?, as was seen, the following : The warning must (a) be repeated three times, except in case of urgent necessity ; (0) given in writing; (e) state precisely what is to be done or avoided ; (d)
1 Corn, a Lapide, Com. in Matth., xviii., 15. * Sess. xiii., c. I. de Ref. 3 lb.
66 Canonical Admonitions.
lav down a suitable and fixed time for compliance with the precept ; (e) mention the specific punishment that will be in- flicted, in case- the warning is disregarded ; (/) be read or handed to the delinquent in person; (g) in the presence of competent witnesses ; (//) be issued by authority of the judge. We shall now briefly explain each of these formalities.
1783. First, the warning must be repeated three times. This is expressly enacted by the Sacred Canons: " Sed quia modo multi inveniuntur decimas dare nolentes, statuimus, ut secundum Domini nostri praeceptum admoneanter semel, et sccuudo, et tertio. Qui si non emendaverint, anathematis vin- culo feriantur, usque ad satisfactionem et cmendationem congruam." 1 Observe here that this canon states that the admonition is to be repeated three times, according to the pre- cept of Our Lord. 2 Only in the case oi urgent necessity, v. g., when there is periculum in mora, is it allowed to give the warning but once. J When the Prelate gives only a single warning, he must expressly state in the warning that it is given peremptorily, or for the first and last time, and once for all.4 As we shall see further on, one warning is abso- lutely necessary to the validity of the punishment, whether correctional or punitive ; three are required for its licitness. These repeated warnings are prescribed in order that the stubborn disobedience of the delinquent may thus appear more clearly, and also that he may have sufficient time to comply with the warning, or to prepare for his defence. 6
1784. The above law is substantially retained in the In- structions of June 11, 1880, and Cum Magnopere of 1884. 6 For they enact that the canonical warnings shall precede the formal precept. Wherefore, if with us a Prelate im- poses the precept without having previously given the
1 C. xvi., Q. vii., can. 5 ; Cap. 96 de sent. exc. in 6. (v. 11),
' CI Kober, Excom., p. 150. :J Arg. Cap. 9 de sent, excom. in 6° (v. 11).
4 Kober, 1. c, p. 151. 6 Reiff., 1. v., t. 39, n. 24. 6 Art. VII.
( anonical Admonitions* 1
warning , eithei pateroall} i u legally, th< precept i ol no
i< >i •
ond% it b\h >til<l I • . i In < < uidit ion i re-
quii ed on pain i »i I he illi< itn( , though n< »t ol I h< ini alid of the warning. ' Incase of n< ty, it can be made orally.
But if, <>ut oi i he case o i ity, t he judge infli< I a coi
rectionaJ punishment, aftei an i ral admonition, he < i >mra
a mortal sin, and incut seven i >enall i
Bishops however do not incur these penalties
not expressly mentioned in the law imposing them.1
1786. Thirds it should state clearl} and unequivocally 1 1 m • precept m injunctionoi the Superior, namely, what tin- |" sou warned must do or avoid, in order to escape the thr< ened punishment.4 Fourth^ it should li\ a suitable and per- emptory time, within which the delinquent can obey this in- junction, il he wishes. When but :i single warning is given, a space ol at least six days must he allowed him, within which he may comply with the warning. In case the triple warning is given, a space of at least two days must intervene between each, so that the time for compliance with the ad- monition is the same in both cases, namely, at least six days.5 How ever, lor special and urgent reasons, or wJicre there is periculum in mora, this term may be reduced to a shorter time. v. g.t to one day or even less time. 6 The other for- malities will be explained below, when we come to speak of the prccccptum. See also our Nezv Procedure, n. 75.
1 Cap. Cum Medicinalis, de sent, excom. in 6°, -' Stremler, 1. c, p. 20.
3 Cap. 48 de sent, excom. (v. 39); Cap. 5 de sent, excom. in 6° (v. 11) ; Cap. 4 de sent, excom. in 6° (v. n.)
4 Pierantonelli, p. 188. 5 Cap. de sent, excom. in 6 (v. 11).
6 Kober, 1. c, p. 151.
CHAPTER III.
THE PRECEPT.
{Pncceptum.)
Art. I.
What is the Precept ?
1787. The third and severest kind of preventive remedies or punishments are precepts. We shall discuss three ques- tions : 1. What is here meant by a precept ? 2. What does it presuppose ? 3. How is it given ? — What then is meant by the Praceptum} The Instructions Sacra hcec of June 11, 1880, and Cum Magnopere of 1884, give the answer: "Quod si monitiones in irritum cedant, Ordinarius jubet per Curiam delinquenti analogum praeceptum intimari, ita ut in hoc ex- plicetur quid ipse vel facere vel vitare debeat, addita respec- tive pcenae ecclesiastical comminatione, quam, si praeceptum transgrediatur, incurret." 1 Hence the precept of which we here speak is the command of the Bishop or judge, formally directing a delinquent Ecclesiastic, i. e.t one who, upon the required previous informal inquiry, has been found guilty of reprehensible conduct and who has been duly warned, to do this or avoid that, on pain of being otherwise visited, serva- tis scrvandis, with such or such an ecclesiastical punishment. 2
1788. As will be seen, the precept bears no small resem- blance to the canonical warnings, when given in a legal manner, as above described. For this reason, as has been noted, some Canonists, and apparently not without good reasons, — regard the prceceptum as the real canonical warn- ing, in the strict sense of the term. 3 This analogy or, ac- cording to some, identity will appear more fully, when we
1 Art. VTIT. » Cf. Rota, 1. c, p. 430. 3 Cf. Droste, p. 102.
When can the Preiept ( inn/
i mih to sh< >u h« »w i he pi < < ept ii made. At pre ■< ni
nici e) \ i ii »S< i \ I I li.il I lw « .in- 'iii« .il M .11 ii . Iik h .1 1 < t< »
precede the precept, should indeed, no less i ii;m the precept, tatc what the delinquent must <l<> <>i .iv<>;d in <»oi< \ to i < ape punishment. I >m i he precept, m hile imp< • rn«
mand similai t<> that given in the warnings, imp il in .t
more formal, precise, final, and penal manner, and with
avei 1 1 suit s, in case oi disobedience. Hence the formal precept is designed to obtain l»\ compulsion what tin canon
.i warnings failed to effect by suasion o\ spontaneously, namely, the amendment oi the delinquent.1
Art. II.
WheH eon it be enjoined?
i;So. Our second question is: What docs the preceptor command presupp First, it must be preceded by the
canonical warnings mentioned in Article VI. of the Instruc- tion Cum Magnopere. This is clearly pointed out in the
words of the Instruction: ■ " Quod si monitiones in irritum ce- danty Ordinarius jubet per Curiam delinquenti analogum pi ceptum intimari." This order, consecutiveness, or gradation is obligatory, on pain of nullity of the procedure. Hence, if a Prelate, without first giving the canonical warnings, imposed the precept and subsequently ordered the trial for the violation of the precept, the whole procedure would be invalid.3 In fact, if, as we have shown, the canonical warn- ings inflict pain and are therefore punishments, it is evident that the precept causes far greater humiliation and is there- fore a severer punishment than the warnings, owing to the solemn and formal manner in which it is made. Now the Church, as a rule, does not make use of the severer punish- ment before she has tried the milder one. 4
1 Acta S. S., 1. c, p. 382. 3 Instr. Cum Magnopere, Art. vii.
3 Acta S. S., vol. xv., p. 383; Rota, 1. c, p. 430. 4 Droste, 1. c, p. 102.
yo When can the Precept be enjoined ?
1790. Consequently, as Rota l observes, if the precept were imposed by the Prelate without the previous warn- ings, it could be disregarded with impunity by the delin- quent, since it would be notoriously invalid ipso jure, being against the express provision of the Instructions of June 11, 1 8 So, and Cum Magnopcre of 1884. See our New Procedure,
n- 73-
We do not agree therefore with some authors, when they
contend that the precept need not be preceded by the ad- monitions. 3
1 79 1. The order or gradation, therefore, to be observed by the Superior, when he inflicts preventive remedies, is as follows : First, the canonical admonitions are given, and that either in a paternal or in a legal form; next, when these admonitions are disregarded, the precept is enjoined. The reason is obvious : a precept, owing to its formal and mandatory character, coupled with the threat of specific punishment, is far more humiliating than mere admonitions. Now the law of nature dictates that the graver punish- ments shall not be imposed until the lighter ones have been tried in vain.
1792. We say, " when he inflicts preventive remedies ; " for when, ow'ing to the gravity and nature of the offence, the Superior is constrained to proceed to repressive measures, the following order or gradation is to be observed. When there is question of repressive punishments of a reformative character, v. g, censures, the above gradation or order ob- tains, except in certain specified cases, explained by us in this volume. In other words, the Superior first gives the admonition ; next the precept, and finally the trial ; and, upon conviction, he imposes the punishment. But when there is question of repressive remedies which are vindi- catory in character, the above order need not, though it
1 Enchir. p. 430. 2 Cf. Droste — Messmer, pp.81, 144, 148 sq.
// 'hen can . ! 71
m. is l.m«l.il)i\ . in < »!• •■« rvcd I n < >i Ik 1 w ( u ds, 1 1 1 , m.i\ « 11 dei ' he 1 1 ial and, up< >n < 1 >m u 1 i< >n, \m\ 1 1\ c penaii ies, w if h< mi ha> ii n I he pn vl
and pre* epl .
1 1 is ow in- . we t iniik, i« » .1 w .mi oi adv< inction, that some writers have fallen into the mist 1 and w it bout du< 1 1 hat
the admonitions need not precede the precept, and that th< latter can be given at once, ij the Superioi judge - it expedi- ent;' or, in general, thai the Bishop titute criminal proceedings, it he has sufficient proof oi the 1 rime, and that he is not bound first to make use of extrajudi con ective means.
170}. Next, the precept presupposes an off< or cul-
pable conduct, and summary verification of such conduct, as has been described above under the article piritual
retreats. This follows from the fact that, as has just 1 : remarked, the warnings should precede the precept. Now the warnings themselves must be preceded by guilt, ascer- tained by a summary inquiry or investigation. We ob- serve, before giving the precept, the Bishop of judge should, if need be, continue and perfect the extrajudicial and in- formal inquiry (summaria facti cognitio) that preceded the giving of the warnings, so that he may have no reasonable doubt whatever of the culpability of the delinquent, and that he may be, if possible, even more certain of the guilt, than he was at the time he gave the canonical warnings. As has been seen, he cannot issue the precept, even validly, unless he has a moral certitude or at least a canonical pro- batio semi-plena of the guilt. ■
1 Droste — Messmer, pp. Si, 144, 14S, note 2, 149, 152.
2 Acta S.S., 1. c, p. 378; Rota, 1. c, p. 431 ; Pierantonelli, 1. c, p. 84 Oroste, 1. c, p. 106.
J 2 Hozl is the Precept given ?
Art. III. How is it given ?
1795. Q. What are the formalities with which the precept is to be given.
A, As in the case of the canonical warnings, given in a Legal manner, so also in the case of the precept, some of the formalities refer to the precept itself, its contents and form ; others to the serving of the precept upon the delinquent. The formalities which regard the precept itself are chiefly the following: 1. It is given, not by the Bishop in person, though at his order, but by the curia episcopalis, in the man- ner stated below. Herein the precept differs from the can- onical warnings, which, as was seen, are made by the Bishop himself or some person authorized by him, but not by the Curia. The reason of this difference is that the can- onical warnings, even though made in a legal manner, par- take more of a fatherly than of a judicial character, while the precept, though also to some extent a paternal and ex- trajudicial act, ■ nevertheless partakes more of a judicial than of a paternal character. 2 Hence it is proper that it should emanate from the judicial tribunal of the Bishop.
1796. Consequently we cannot agree with those writers who maintain that the precept is wholly an extrajudicial act. 3 For, while it is true, as all know, that not every for- mal or legal or official act is a judicial act, it is also true that those formal or official acts which, like the precept, lead directly to a trial and to repressive punishment, are judicial acts, just as the initiatory steps are considered a part of the whole proceedings to which they lead.
1797. — 2. It must, on pain of nullity, be in writing. We say, on pain of nullity ; for the Instruction Cum Magnopere,
1 Acta S. S., 1. c, p. 382. 2 Droste, 1. C, p. 101 ; Cf. Sanguined, p, 507.
3 Droste Messmer, p. 144.
He t ': I
\ii. XIV., exprcssl} enacts: "Intimation* et notificatioi semper in script lute fiant" It tatc clearlj and
iiiic(|ui\ i »t all} w hal is to be d< »m 01 tv( »ided, n hat 1 1
s< »ns t »i | >la< < are to be shunn< d. Mn i ob on
pain oi nullity, foi it is < videntl} a substantial part «»t tin l>i ecept. ' 4. It must . <>u pain i >1 nullit \ . m( nt i< >n 1 he Bpecific punishment, whethei corn 1 tional or punitive, that will be imposed ii the command is unheeded.
1 )S. This threatened punishmenl should, oi course, l><- in proportion to the offence. For the Light* r offen< es, spiritual exercises are usually imp< >se< I ; for tl and similai punishments are generally inflicted.4 5. It should li\ a suitable time, within which the delinquent may comply with t he injunction. I > 1 1 1 it need not, like the can- onical warnings, given in a Legal manner, be repeated thr< times; it is given hut on< \s will n, these for-
malities are substantially the same as those of the canonical warnings described above.
1799. Wecome now tQ the extrinsic formalities of the p cept, namely those which refer to the manner in which it is to be communicated to the delinquent. I Tow, then, is the pre- cept to be executed, i. e.t served on the delinquent ? The In- struction Cum Magnopere, Art. V 1 1 [., answers thus: " Praecep- tum delinquent a Curiae Cancellario coram Vicario Generali injungitur, autetiam coram duobus testibus ecclesiasticis vel laieis spectatae probitatis. i° Actus injunctionis praecepti signatur a partibus praesentibus, ct a delinquente etiam, si velit. 2° Vicarius Generalis jusjurandum testibus imponere potest de secreto servando, si prudentera natura rei, de qua agitur, id requiratur,"
1800. From this, then, it will be seen that the precept is {a) to be read or given to the delinquent in person, who is cited to appear in court, for that purpose ; (b) by the chancellor or
1 Acta S. S., 1. c, p. 383. ■ lb. 3 lb. * Droste, p. 105.
74 Hon) is the Precept given t
secretary of the episcopal curia; (c) in the presence either of the Vicar General, or oi two witnesses, who are either Ec- clesiastics or laics of marked probity, (d) An official re- cord is then written out by the chancellor, of the whole transaction, /. e., of the serving of the precept in the above manner ; this record should be signed by all present, namely by the chancellor, the Vicar General or the two witnesses, and also by the delinquent, if he wishes. Thus a complete juridical proof is obtained of the execution, i. e., of the de- livery of the precept to the delinquent.
1801. (e) Finally, the Vicar General can compel the wit- nesses to swear that they will not divulge the proceedings. The object of this enactment is to prevent scandal among the faithful, and also to shield the good name of the accused. In fact, as Rota 1 remarks, the ecclesiastical judge should have nothing so much at heart, as the honor and dignity of the ecclesiastical £tate. He should therefore do all in his power to prevent, as far as possible, the precept or other pun- ishment imposed by him upon an Ecclesiastic from becoming public. For, says the law of the Church : " Nee enim debet sacerdos publice pcenitere, sicut laicus."2 Hence, says the above canonist, a prelate should not impose, even for very grave crimes, which are not yet public, suspension from hearing confessions or saying mass, not only on Aveek days, but also on Sundays or holy-days. 3
1802, The above mode of serving the precept takes it for granted that the delinquent has been cited to appear before the curia in order to receive the precept, and that he has really appeared ; 4 or that he has been accessible without any citation. But if he fails contumaciously to appear on due citation, or maliciously renders himself inaccessible to the curia, the precept may be sent to him (a) by a trust- worthy person, who shall certify the serving of the precept,
1 Enchir., p. 432. 2 Can. Presbyter 5, Dist. 82.
» Rota, 1. c.,p. 433, * Droste, p. 104.
Hi th$ /'> < '</•' >/ f 75
.in< i u li< »• < testimony shall be full proof thereof ; 01 l»\ 1 1 ■•■ i tercel mail, care being taken that the acknowli men! i »i i he receipt or rejection of t hi registered lcttei con taining the preci pt be kept. Sin li a< knowledgmcnt « on ti t utcs lull i»i< k »i i 'I he < lelh ery.1 If even thi iblc,
. ii i he delinquent him elf, so i hat neit hei i he
inn the registered mail can reach him, ii ma} be left at his house, 01 ii he has none, posted on the dooi the chinch 01 othei public place, where it maj lour- to bis knowledge.
1 Instr. Cm ■-'•■. An. XIV.
PART III.
CANONICAL REPRESSIVE PUNISHMENTS WHICH
ARE VINDICATORY.
{Pcenoe v indicatives).
1803. Having discussed the preventive remedies, we come now to the repressive. As has been already noted, repressive ecclesiastical or canonical punishments arc divided into two kinds : / 'indicative (pcenoe, pcence vindicative^) and reformative {poena medicinales, censures). The former are repressive punishments in the strict sense, the latter are also repres- sive punishments in every sense of the term, though their chief and direct aim is medicinal, that is, to heal the spiri- tual infirmity of the delinquent, and their secondary, puni- tive or vindicatory of the law. We shall treat of vindica- tory punishments in this Third Part, and of correctional in the Fourth Part of this volume.
1804. The vindicatory punishments are divided into spiri- tual and temporal. The chief spiritual punishments are dismissal, penal transfer, deposition-, degradation, disqualifi- cation for ecclesiastical offices, and incapacity for the eccle- siastical state. ' The principal temporal punishments, still inflicted by the Church, are infamy, pecuniary fines, and as- signment to a monastery or house of retreat.2 Accordingly, we shall divide this Third Part into two sections, the first treating of the spiritual, the second, of the temporal vin- dicatory remedies of the Church.
1 Reiff., 1. 5, t. 37, n. 18. 2 Stremler, 1. c, p. 31.
SECTION I. Spiritual Vindicatory nmnts.
CHAPTER l.
DISMISSAL OF RE4 rORS ALSO IN THE UNITED i A i I
(Privatio).
Art. i.
rrect Idea of Dismissal or Privatio Officii.
1S05. Ecclesiastical offices, positions, and benefices, as we have seen,1 may be lost, not only by the death oi the incum- bent, but also by resignation, by transfer, by the acquisition oi another office or benefice which is incompatible with the first, and bv privation or dismissal. Canonists, therefore, properly say that a person may lose an ecclesiastical office or position in two ways : either voluntarily, as by resigna- tion, or compulsorily, as by dismissal or involuntary transfer. In the present chapter, we shall speak of dismissal ; in the next, of penal transfers.
1806. Dismissal, or absolute removal, {privatio deftnitiva, remotio a munere) is a canonical punishment which consists in this, that an Ecclesiastic is deprived of his ecclesiastical office or position, without being at the same time appointed to another, but without being- disqualified to hold other ec- clesiastical offices or positions in the future. 2
1807. We say, canonical punishment; for, to take away from an Ecclesiastic his office or benefice, and consequent-
1 Supra, vol. i., n. 380. * Supra, n. 402; Reiff, 1. 5, t. 37, n. 21 ; De Brabandere, n. 1511.
;S Dismissal of Rectors also in the United States.
Iv all the emoluments, advantages, and honor or standing and position attached to it, will evidently inflict great pain and suffering, bodily and mental, upon him. Hence all canonists agree, as we shall presently see, that dismissal is one of the greatest penalties of the Church. '
1808. We say, also, without being at the same time appointed to another ; since dismissal is a total removal from a partic- ular office or position, for the time being. Consequently it dillers, in this respect, from a transfer, made with or against the will of the incumbent. For by a transfer a person in- deed loses or is deprived of his office, but yet is appointed at the same time to another.
1809. We add, but wit J unit being disqualified, etc. Herein dismissal differs from deposition. The latter not only de- prives a person of his office, but also disqualifies him to be appointed to others in future. Dismissal, on the contrary, merely takes away the office which a person actually holds, and consequently does not incapacitate him from asking for, and obtaining other ecclesiastical offices, benefices, or digni- ties, in the future. Nay, it does not necessarily affect all the offices or benefices which a person possesses. Conse- quently, an Ecclesiastic who lawfully holds several positions at the same time, may be dismissed from one, without being deprived of the others.
1 8 10. It may be observed here that, while dismissal does not legally incapacitate a person from being appointed to of- fices in future, yet morally and practically it produces, in most cases, the same result. For a dismissal casts such a slur and discredit upon the Ecclesiastic dismissed, that he will find it very difficult, if not well nigh impossible, to ob- tain any other ecclesiastical appointment, from his own Bishop, or from any other Bishop.
181 1. We shall now proceed to discuss the dismissal, that
1 Schmalzg. 1. 5, t. 37, n. 128; Phillips, Comp., §. 87, p. 168, and §. 188, p. 377
Ot it of IrrcmovabL l<
It, absolute " enn >\ al, and n< >t mei ely ti I ol
I*. ii ishes 01 nil ii i he I tatted Stat(
to the general law ol the Church, as still in full force, the care oi souls, <>i the offi< e ol K< i toi ol •« parish, is to be conferred upon the incumbent for i I on equently,
w hei t\ ii i Ins law obtains and it obtai n whi
Rectors of souls are irremovable. \\ < Bay ; and it obtain*
" f\ > v, " \( ■(•( it i( )ii;ill\ , il is ii' >t iii I nil l« >i
in certain countries. Thus, in some missionary countrii .ill Rectors are amovibiUs. In other missionary countri m England, and at present, also in the I 'nit* d Stat and also in Prance and Belgium, some l\< anoni-
eallv irremovable, others are not.
1812, Accordingly, there are, at present, two kinds of
Rectors, also in the United States — removable and irremo
able.1 We shall, therefore, first speak oi the dismissal of Rectors who are irremovable; then, of the dismissal of tho
who are not irremovable.
Art 11.
Dismissal of Irremovable Rectors.
For the sake of greater clearness, we shall discuss under separate heads, first, the dismissal of irremovable Rectors in countries where canon law fully obtains ; secondly, the dis- missal of irremovable Rectors in the United States, England, and Ireland.
§ 1. Dismissal of Irremovable Rectors where the General Law of the Church fully Obtains.
181 3. Q. Why and how can Rectors who are canonically irremovable be deprived of their parishes, according to the general law of the Church, as still in force?
1 Supra, vol. i., n. 402, 409, sixth edition, 1887.
So Dismissal of Irremovable Rectors.
A. i. Only for crimes; 2. which are very grave ; 3. and cxprcsslv stated in law; 4. and upon a canonical trial.1 Hence the following rules must be observed in the dis- missal of irremovable Rectors.
1 8 14. Rule I. The dismissal can be inflicted only for crimes. In other words, the dismissal in the case can be inflicted, as a rule, only as a punishment for crimes committed by the incumbent. We say, as a ride. For the law of the Church has laid down certain cases where a Rector loses his parish or office ipso jure, even though he is not guilty of crime. Thus the Sacred Canons decree that an Ecclesiastic shall ipso jure lose or be deprived of his office or benefice, and consequently also of his parish, (a) when he obtains another benefice or office, which is incompatible with the first ; (b) when he enters a religious order and has made his profes- sion in it ; (c) when a person who is not yet a priest obtains the appointment to a parish, and neglects to be ordained a priest, within a year after his appointment.
181 5. These cases where an Ecclesiastic is deprived of his office or parish, even though he is not guilty of crime, are all expressly enumerated in law. For, as we shall presently see, an irremovable Rector can be deprived of his parish only for canonical cause ; that is, only for causes which are expressly stated in law.
1 8 16. Outside of the above cases, which are all expressly given in law, dismissal can be inflicted only in punisJnncnt of crimes committed by the Rector. In other words, the only other cause, besides the above, for which an irremovable Rector can be dismissed from his parish or office, is crime. 2 This is expressly enacted by the law of the Church, as still in full force. 3 The reason is, that dismissal is a punishment, nay a
1 Supra vol. i., n. 408, sixth edition. * Leur., For. Benef., P. Hi., Q. 169, n. 2; Reiff., 1. 5. t. 37, n. 5; Munchen, 1. c, vol. ii., p. 152.
3 Can. 38., c. 16, Q. 7; Can. 7, Dist. 56; Supra , n. 418.
punishment ol the I kind Now then c*n be no
punishment when then is no crime, as w< show aboi \ ol. I., ii- 418, rM th editic
i3i7. That dismissal is ;» punishment, na) a punishment ol the severest kind, is manifest from the irer} Idea of pun ishment and from the unanimou teaching ol canoni For, as we have shown above, .1 punishment is a pain%
./, inflicted for crime. Now, to take away from an Ecclesiastic his office or parish, and consequentl) all the emoluments, advantages, honor, standing, and position atta< bed to it, is evidentl} to inflict pain, sufferings humiliation, dis- . ami pecuniary loss. It is, in fact, as canonists say, a social or civil death. For as the natural death deprives a person i^i all advantages in the natural or physical order,
so dismissal deprives an Ecclesiastic of all that he values in the social or civil order of the Church.
1S1S. Accordingly canonists unanimously teach that dis- missal is one of the severest punishments of the Church. The great canonist Cardinal l)e Luca, as quoted and approved by the learned Jesuit canonist Leurenius, ' writes: " Privatio et amissio beneficii in materia beneficiali dicitur importare pcenam gravissinta nt et ordinariam . . . seu dicitur poena major, qua"* in jure ordinario dicitur assimilata poena mortis in temporalibus, eum sit mors civilis." 2 Leurenius himself says that dismissal ox privatio is a poena gravissima et ordinaria. There can be no doubt therefore that dismissal is a punishment, nay one of the severest or greatest of the regular or ordinary punishments of the Church. Hence the law of the Church, as well as the law of nature, prescribes that it shall not be inflicted save for crime.
1819. It is, therefore, in consonance with this principle that the law of the Church expressly provides, that, when an
1 For. Benef., P. iii., Q. 169, n. 2.
3 Card, de Luca, 1. 12. Benef, Disc. 35., n. 10 ; Disc. 75, n. 4. — Venetiis, 1734,
82 Dismissal of Irremovable Rectors.
Ecclesiastic, by reason of inexperience, want of knowledge or of ability, or by reason of old age or infirmity, becomes unable to discharge the duties of his office, parish, or bene- fice, he cannot be deprived of it, ' but simply that an assist- ant or coadjutor be assigned to him. 2
i S jo. Rule II. Dismissal can be inflicted only for crimes which are grave and atrocious. The reason is, that, as we have seen, dismissal is one of the severest punishments. Now there must always be a due proportion between the offence and its punishment. 3
[821. Rule III. The crimes must be expressly stated in lazv. In other words, dismissal can be inflicted, not for any and every crime, no matter how grievous, but only for those heinous crimes which are expressly designated by the law of the Church as being punishable, either ipso facto ox per senten- tiam, with dismissal. The law gives the Ordinary a certain amount of discretionary power in the infliction of minor punishments, but does not allow him to impose those which are severe, except in cases expressly stated. ' For the specific crimes which have dismissal annexed, ' whether ipso jure or only ferendee sententice, see above, Vol. I., n. 412- 415, sixth edition.
1822. Here it should be observed, that, by the older can- ons of the Church, dismissal was imposed for less grievous crimes than are now required, the severity of the ancient discipline having been somewhat mitigated by the more recent legislation of the Church. 6
1823. Rule IV. The crime must be fully proved by a regular canonical trial. 7 This is clearly and repeatedly laid down
1 Cap. 5, de cleric, aegr. (iii. 6). 9 Cap. 3, 4, de cleric, oegr. (iii. 6); Cone. Trid., sess. xxi., cap. 6; De Angelis, L 3., t. 6, n. 2 ; Prxl. S. Sulp., vol. iii., n. 836.
3 Leur., 1. c, Q. 169, n. 2. * Supra, vol. i., n. 410, sixth edition.
6 Leur., For. benef., P. iii., Q. 14. sq. ; Reiff., 1. 3, t. 5, n. 343 sq. * Leur., 1. c, Q. 169, n. I; Stremler, 1. c, p. 33 7 Permaneder, $$. 275, 443.
/ )ism i hi i Mi /V
id the i.iw oi ili< ( 'Inn < h. Poj candci III. in his
decretal ( on .■ (ii. i a we havi
\f\ ' (»i lid. J .in E< i lesiast i< . w ho had been di from his place without .1 trial, t<> l»< reinstated in his \ • ■ l > \ ins .\u h b ish op , sole I3 on the j \ 1 < » 1 1 1 1 < I t h at the d i had been imposed without .1 previous trial. The Gl commenting on the above de< retal I 'onqui r< nte, saj Nul
lus debet destitui vel spoliari etiam a praelato sun, juris ordine non set
1824, The reason why a previous trial is required is, that dismissal, as we have seen, is one ol the severest punish- ments oi the Church. Now it is a maxim of canon law that no regular or ordinary punishment whatev< r can be inflicted upon a person, unless he lias either confessed his crime, or been legitimately^ i. e., juridically, convicted of it. Thus Leurenius teaches : ■ uCum privatio sit poena gravis- sima et ordinaria, ut dictum est, hincintrat criminalistarum propositio, quod ad poenam ordinariam procedi non pot st, nisi contra legitime confessum vel convictum."
[825. It should be observed that a previous trial is re- quired, not only when dismissal is imposed per scntcutiam, but also when it is inflicted ipso jure. In other words, a previous trial is required, not only when there is question of inflicting dismissal for crimes which have dismissal an- nexed post sententiam, but also when there is question of inflicting it for offences for which the law imposes dismissal ipso jure. In both cases, the fact that a person has really committed the crime must be established by a trial. 3 But the sentence following such trial is different in the two cases. For, in the cases of crimes having dismissal annexed ipso jure, the sentence is merely declaratory ; that is, simply de-
1 Supra, vol. ii., n. 1105, second edition. 3 For. benef., P. iii., Q. 172.
3 Where the crime is notorious permanently, no trial is, strictly speaking, necessary. See our Neva Procedure, n. 107. But even in this case, it is safer ♦*» give a trial. See Cone. PI. Bait. III., n. 310.
84 Dismissal of Irremovable Rectors
clarcs that the crime has been committed, and that therefore the dismissal inflicted by the law itself {ipso jure) has been incurred. In the other case, the sentence is condemnatory.
1826. We have said, by regular canonical trial ; that is, by a solemn or formal canonical trial. For, as we have seen, the Sacred Canons ordain that, where punishments are to be in- flicted, it can be done only by a formal or solemn, not by a sumniary canonical trial. In 1880, however, the Holy See partly modified the prescription of the Sacred Canons by the Instruction of the S. C. EE. et RR., dated June 11, 1880.1 See above, Vol. I., No. 408, sixth edition; Vol. II., Nos. 1277, 1278, second edition; Our New Procedure, No. 581, sq.
§. 2. Dismissal of Irremovable Rectors in the United States.
1827. The Third Plenary Council of Baltimore has, in accord- ance with the schema agreed upon at the Conferences held in Rome, November, 1883, between the Cardinals of the Propaganda and our Archbishops, made the following en- actments. 1. " In singulis dicecesibus, auctoritate Episcopi, de Consultorum suorum consilio seligantur certse missiones, quae magis aptas videntur, ut parceciarum instar haberi pos- sint, atque a rectoribus missionariis permanenter institutis seu inamovibilibus sicut in Anglia regantur.
" Ejusmodi missio, cui praeficiendus erit rector inamovibilis, omnino instructa esse debet ecclesia congrua, schola pro utro- que sexu, domo sacerdotis usui accommodata, et proventibus sufficientibus et satis certis ad sacerdotis, ecclesiae, et scholaj necessariam sustentationem." 2
1828 — 2. " Missio cujus rector semel inamovibilis est consti- tutus, in posterum semper habebit rectorem inamovibilem, licet aliqua territorii parte juxta normam in n. 20 descrip- tam minuatur. Novarum autem parceciarum ex dismem-
1 This Instruction is given above, vol. ii., p. 424 sq. 2 Cone. PL Bait. III., n. 33.
Dismissal oj Irremovabli R$ctori 85
hr.ii [one effoi matai uni rc( ton n< m 1 1 unl inamo> ibita . 1 Episcopi .11niiMii.1i! 1 .ill con tituti fuerint Paroei a eadem dismcmbrationc efformata independent tamen constitu ciii in ab ec< lesia mat 1 u <■." '
1820 t. " Pro nuiu in- 1 ii 11. mi in in singulis dioe< rectores missionarii inamovibiles tali numero, /// inter onti die rectores decimus quisque sit inatnovibilisy dummodo
conditiones requisites adsint turn ex parte mil ionis, < uni 1 parte rectoris eligendi, Quae proportio (unus inter decern) ne inconsulto excedatur intra viginti primos annos r> concilium promulgal urn."
[830 .|. " Institutio autem rectorum inamovibilium, ul praescripta, ultra triennium a promulgatione concilii compu- tandum non erit differenda.
" Inter rectores inamovibiles tamem rector ecclesice cathe- drafts non est ponendus ; et quando nova dicecesis erigitur, rector ecclesiae quam Episcopus in cathedralem eligit, ipso facto erit amovibilis."
[831 — 5. " Ad conditiones quod spcctat, quae ex parte eli- gendorum ad missiones inamovibilitatis privilegio insig- nitas requiruntur, ut quis sacerdos ejusmodi missioni praefici valeat, opus erit: 1. ut per decern saltern annos in dioecesi sacrum ministerium laudabiliter exercuerit; II. ut intra idem temporis spatium sese habilem probaverit ad parochiam administrandam et in temporalibus et in spiritualibus ; III. ut concursum faciat juxta normam infra statuendam. Inter eos qui hisce conditionibus satisfecerint, electio dignioris relinquitur judicio et conscientiae Episcopi, salva appella- tione juxta constitutionem S. M. Benedicti XIV. Cum ill mi, diei 14 Dec. 1742."
1832. According to this legislation, which now forms the law for this country, we have at present two classes of Rec-
1 lb., n. 34. a In regard to the meaning of the words pro nunc, see note b, on p. 411 of vol. i. oi the sixth edition of our Elements of EccL Law.
86 Dismissal of Irremovable Rectors.
tors : some arc irremovable, others are not irremovable, as we show in the sixth edition of the first volume of this work, n. 409, 416, and in our treatise entitled, " The New Proced- ure" or "clear and full explanation of the Instruction Cum Magnopere" We shall first speak of the removal (and by removal we here mean dismissal, not merely transfer) of our irremovable Rectors ; next, of that of our Rectors who arc not irremovable.
1S33. Q- For what causes, and in what manner can our irremovable Rectors be deprived of (not merely transferred from) their missions ?
A. The Third Plenary Council of Baltimore answers thus:1 " Rector missionarius permanenter institutus seu inamovi- bilis, a sua missione definitive removeri non poterit, nisi ob canonicam causam, et tarn in remediis praeventivis quam repressivis servata forma procedendi juxta normam Instruc- tionis S. Congregationis de Propaganda Fide de cognos- cendis et definiendis causis criminalibus et disciplinanbus clericorum, quae incipit Cum Magnopere, nuperrime ad Episcopos Fcederatorum Statuum Americas Septentrionalis directae."2 In other words, our irremovable Rectors can be deprived of their missions or parishes: 1. only for canonical cause, that is, for cause expressly stated in law; 2. and in the manner outlined in the Instruction Cum Magnopere, both as regards preventive and repressive punishments.
1834. We say, only for canonical cause — " nisi ob causam canonicam." By a canonical cause is meant a cause expressly stated in law. Now this law, as we have shown above, when speaking of the dismissal of irremovable Rectors in Catholic countries where canon law fully obtains, provides, 1. that an irremovable Rector can be dismissed in certain cases specifi- cally enumerated by it, even though he is not guilty of
1 Cone. PI. Bait. III., n. 38. 3 See this Instruction Cum Magnopere, together with an accurate and paraphrased English translation in our work entitled The New Procedure, p. 255 sq.
/ // \ Mi l< 87
Ci mi. . 1 hat, < mm i< le ol 1 h< 1 he di al < ann< >t
be inflicted 1) for < (6) which tnd
specifically mentioned in la
I'll .Ms.) the teaching <>l t h< Third Plenary veil
c/ Baltimore y when it I
vibilis deponi possit et debeal injure continentur, d ad 1 pertinent generatim omnia delicto in & men di
plinam ecclesiasticam vel jurasive spiritualia sivc temporalia missionis adducentia, quorum reus convii tus fuerit."1
[835. What are, in particular, the crimes « tated
in law, for which dismissal is imposed ipso facto, or can be Imposed per sententiam t For the answei Vol. I., N
412, } 1 3, sixth edition.
1836, To these canonical causes or offences, for which
dismissal is or can be imposed, by the general law ol the Church, upon irremovable Rectors here as elsewhere, the Third Plenary Council of Baltimore has added seven other causes or offences for which our irremovable Rectors can be dismissed. The wordsof the Council nvc : " Pro praesenti rerum nostrarum conditione ad has causas (canonicas) nomi- natim pertinere declarantur sequentes :
1. " [nobedientia pertinax in re magni momenti regulis ab Ordinario constitutis sive pro administratione ipsarum etiam rerum temporalium suae missionis, sive pro oneribus dicecesanis sublevandis." For the other six causes added by the Council, see Vol. I., No. 414, sixth edition.
1837. We say, secondly, and in the maimer outlined by the Instruction Cum Magnopcrc, both as regards preventive and repressive punishments. Now the mode of proceeding- prescribed in this Instruction is as follows : Before inflicting punishments proper or repressive measures, even those which are vindicative, the Superior should, as a rule, try paternal remedies, v.g., admonitions, precepts, retreats. When these
* Supra, n. 1816. " Cone. PL Bah. III., n. 38.
SS Dismissal of Irremovable Rectors.
remedies prove <>t no avail, he proceeds to inflict repressive measures, in such order, however, as to impose first milder punishments, :.g.f suspension, and afterwards the severer ones. The preventive remedies are to be preceded by an extra-judicial investigation ; the repressive, by & judicial, that is, by a canonical trial.
1 838. Consequently dismissal should, as a rule, be inflicted upon our irremovable Rectors1 (a) only after the preventive remedies and the milder punishments have been applied to them, without effect, and they have thus shown themselves incorrigible ; (d) by a canonical trial, as outlined in the Instruction Cum Magnopere. This is expressly ordained by the Third Plenary Council of Baltimore in these words of the above quoted passage : " Rector missionarius inamovibilis, a sua missione definitive removeri non poterit, nisi ob causam canonicam, et tarn in remediis pr&ventivis quam repressivis scr vat a forma procedendi juxta nor mam Instructionis Cum Magnopere." 2
1839. I11 fact> as we have seen, dismissal from office being a privation of what is dearest to man — namely, of his position, standing, and of the honor and emoluments connected with it — is one of the severest punishments of the Church. Now it is a general principle of canon law and also of natural justice, that, as a rule, the heavier punishments should not be inflicted until the more moderate ones have been applied in vain. 8 Therefore canonists all agree that dismissal should be made use of only as a last resort, and consequently only when all the milder remedies have been tried, but produced no effect.
1840. From what has been said it will be seen, that our irremovable Rectors, though not Canonical Parish Priests proper, 4 yet enjoy the right of inamovibilitas in the same
1 This applies, of course, also to irremovable Rectors in countries where canon law is in full force. (Prael. S. Sulp., vol. iii. n. 835.) • Cone. PI. Bait. III., n. 38. 3 Prael. S. Sulp., vol. iii. n. 835.
1 See vol i., note b under n. 654, sixth edition.
Dismissal oj Rectors wA not l>
manner as Canonical Parish Priest in the full ■ « n • of the
:, i m, w ill) the i m epl i< >n i hal the} i an be di
the .kMiiiom.iI s< \ en ( au i en in f he al oi
the Third Plena nciloj Baltimore
g, 3, /':s-'. our R who are not irremovable*
1 s 1 1 . Having seen svhen and Kom irremovable Re< toi . al 0 witii us, in.iv be dismissed from their missions or pai wt shall now examine when and how out Re< tors who arc not irremovable mav he dismissed or absolutely removed
I iom their missions.
|S|\ ( '. For what cause and in what manner can our
Rectors who are not irremovable be dismissed (not merely transferred) from their missions?
A. For the answer see above, Vol. 1., Nos. 415, 416, 417, 418. See also the work recently published l>v us, entitled The New Procedure , or a char mid full explanation of the Iiistr. •• Cum Magnopere" of 1884, chapter VIII., article XLV., Nos.
581-593-
1S43. In these places we maintain that, as under the
Instruction of July 20, 1878, so also under the Instruction Cum Magnopere of 1884, a removable Rector cannot, as a rule, be dismissed from his mission save (a) for crimes, (b) and by trial. 3
1844. That this teaching is correct, is now beyond doubt, as appears from a very important decision recently given by the S. C. de Prop. Fide, and graciously communicated to us by His Eminence, the Cardinal Archbishop of Baltimore. This decision is as follows : " Jamvero Emi Patres S. Con- cilio Christiano nomini propagando propositi in Comitiis Generalibus die 28 Martii 1887 habitis sequentia decreverunt : /;/ casibus remotionis per 'agenda \ seu privationis totalis ab officio Rectoris, (iibi de amovibilibus scrmo sit) in pcenam criminis
1 Cone. PI. Bait. III., n. 3 8; supra, vol. i, n. 414, sixth edition.
8 Our New Procedure, n. 591.
90 Dismissal or Rectors who are not Irremovable,
vel reatus disciplinaris, canonicus processus juxta prcefatce In- st ruction is " Cum Magnopcrc "' et Concilii III. Plenarii decreta cenfici debet"
1845. This is in harmony with the letter and spirit of the common law of the Church as laid down in the Sacred Canons. For it is a general principle of canon law, enunciated by Tope Gregory, that an Ecclesiastic, even though he be amovibilis, shall not be deprived of his office, especially when the care of souls is annexed to it, except when he has made himself unworthy of it by crime. The words of the great Pope are : " Satis perversum et contra ecclesiasticam probatur esse censuram ut frustra pro quorumdam voluptatibus suis quis privetur officiis, quern sua culpa v el f acinus ab officii quo fungitur gradu non dejicit."1 The Glossa, commenting on this passage, says : " Non enim privandus est quis jure suo, nisi pro gravissimo delicto." The same Pontiff decrees in another place : " Quam (ecclesiam) si juste adeptus fuerit, hanc nonnisi gravi culpa coram Episcopo canonica severitate amittat." 2 The Glossa, in explaining this passage, writes : " Et postquam ipsam (ecclesiam) juste fuerit (aliquis) adeptus, nonnisi gravi culpa inter veniente coram Episcopo or dine judiciario probato, earn perdat."
1846. This legislation is founded upon natural justice. For the dismissal, also of a removable Rector, is a privation, or taking away from him, of office, and consequently also of the honor, position, and emoluments connected with the office. Hence it inflicts both disgrace and pecuniary loss, and is therefore ^punishment, nay, a punishment of the sev- erest kind. Now the very law of nature prescribes that, as a rule, there can be no punishment where there is no crime, and that the crime must be established by a trial.
1847. Here it may be asked : What, then, is the difference between our removable and irremovable Rectors, if neither
1 Can. Satis 7, D. 56; Corpus Juris Can. cum Glossa, Lugd. 1555. 3 Can. Inventum 38, causa 16, Q. 7.
i .in in- di mm ' « I without .1 1 1 !•' I »i i In- .in above, Vol. I . No. 418, sixth edition. '
|. Dismissal <>/ Rtctori in Ireland, England, Scotksna\ and c/, ountrii
l. Dismissal in England*
1848. Q. 1 low are Rectors di d, that 1 ilutelj
removed from their missions, in England ;
./. We premise: First, there t, no canonical pat"
iskes in England. This appears from the following deci oi the First Provincial Synod oi Westminster, which still in force: " Neque enim paroecias circumscriben vet canonia instituere licet y turn ob locorura ubi existunf ecclesiae inter se distantiam, turn quod multis in casibus, ecclesiarum loco, missionibus inserviant oratoria virorum laicorum aedibus annexa, necnon alias ob causas, quas liic enumerare supervacaneum videtur. Quapropter Archiepis- copus et Episcopi supplicandum censuerunt SSmo Domino Nostro, ut dignaretur concedere ac sancire formarn regi- minis ab ipsis propositam, per quam. . .et parochial is regiminis methodus paulatim introducer etur. Quibus nosiris precibus SSmus annuit, ut patet ex decreto a S. C. de Prop. Fide die 21 Apr. 1852 emisso.
1849. — l- Hujus igitur vigore, donee a S. Sede aliter provideatur, in singulis dioecesibus, auetoritate Episcopi, de consilio tamen Capituli, ecclesiae nonnullae seligantur, quae magis aptae videntur, ut adinstar paroeciarum habcri possint.
1850. — 2. lis ordinarie praeficiatur sacerdos qui titulum habeat Rectoris Missionarii, qui ecclesiae et animarum curam gerat, qucmadmodum caeteri ecclesiis in Anglia praepositi . sed pcrmancntcr institutus habcatur. . . .
185 1. — 3. In caeteris ecclesiis seu missionibus, simpliccs missionarii, ad nutum Episcopi amovibiles, curam animarum
1 See also the Acta S. S., vol. iii., p. 506 sq; De Angelis, Prael., 1. i., t. 28, vl J,
92 Dis7)iissal of Rectors in Eiigland.
habebunt, intra limites unicuique missioni ab Episcopo pro tempore assignatos. " '
1852. We premise again: While there are no canonical parishes proper in England, there are, as is evident from the above passage, two classes of Rectors: some are appointed permanently (paroehi permanenter institute Rectores mission- arii) ; the others are amovibiles ad nutum Episcopi.
1853. We now answer: Rectors in England who are permanently appointed cannot be validly dismissed from their missions or quasi-parishes, (a) except for grave crimes ; (b) and by trial before the Commission of Investigation, which is to be established in every diocese, and is composed of five priests, presided over by one of their own number, as chairman. The manner of proceeding or of conducting the trial is outlined in the acts of the above Synod of Westmin- ster, 2 and is substantially the same as that given in the Instruction of July 20, 1878, for the United States.
1854. In regard to the dismissal of removable Rectors in England, the ecclesiastical legislation of that country is silent. It is, therefore, necessary to fall back on the general principles of canon law and canonical equity. These are set forth by us above, Vol. I., Nos. 415-420, sixth edition. They are, briefly stated, as follows : Dismissal, even of re- movable Rectors, is a privation or taking away of what is and should be as dear as life itself, namely of social standing and of the means of an honorable subsistence. Hence it entails not only dishonor and disgrace, but also the loss of support. Consequently it inflicts the greatest pain and humiliation. It is, therefore, a great punishment, and can, in consequence, be imposed, as a rule, only (a) for crime, (b) and by trial, in which the substantial rules of justice, as laid down by the very law of nature, are observed. What
1 Cone. Prov. Westmin. I., 1852, Decretum xiii. See Coll. Lac., Vol. iii, pp. 925, 959, 960.
3 Coll. Lac., vol. iii, pp. 925, 960.
Du xl oj A' in Ireland.
ml i.il foi ni.ilil iC8 "i i nI. oi |n I
the .in m abo> i Vol. II., N< | nd
idUum% [888.
//. Dismissal in Ireland,
[855. ( I I low .M< Pai rii l '' ' ii mussed from 1 1
Pai ishes in 1 1 eland ?
. /. Before answering we remark : The general laM ol the Church respecting canonical parishes and canonical pari priests is in lull force in Ireland. In other words, the churches or congregations are canonical parishes, and the Rectors canonical Parish Priests, in the proper sense oi the term. The} are consequently irremovable. ' Thiswastheir status prior totheSynod of Maynooth, held in 1 s 7 5 ; and it was not changed by thai Synod. Hence this status still exists in Ireland. His Grace, the Most Rev. \h\ Walsh, the present illustrious Archbishop of Dublin, wrote us, a short time since, in reply to our inquiry, that the ecclesias- tical status and legislation in Ireland are about the same, at present, as they were under the Plenary Synod held in Maynooth, in [875.
1856. We now answer : Parish Priests in Ireland can be deprived of their Parishes (a) only for causes or crimes expressly stated in the sacred canons; (/;) and by a canon- ical trial. However, the Synod of Maynooth states that in Ireland, owing- to the law of the land, the formalities of trials, laid down in the sacred canons, cannot be observed in every particular, and seems to leave the determination of the particular mode of conducting trials to the Pro- vincial Councils of the respective provinces. The words of the Fathers of Maynooth are: " Cum vero in hac regione omnes formae in jure canonico praescriptae pro judiciis ccclesiasticis nequeant observari, habita legis civi-
1 Cf. Syn. PI. Mayn., pp. 109. 299, 300.
94 Dismissal of Rectors in Ireland.
lis ratione, cavendum ut saltern ea omnia fiant quae ad veritatem inveniendam et ad justam rei defensionem ne- cessana sunt. Qua de re in Synodis Provincialibus sedulo agendum crit." ■
i 857. At the same time this Synod, in the decree just emoted, refers to, and embodies in its Acts, 2 the mode of proceeding adopted in England, and would therefore seem to recommend that the Parish Priests in Ireland be dis- missed upon trial, to be conducted before Commissions of Investigation, as is the case in England and was also prescribed for the United States in the Instruction of July 20, 1878.
1858. The obstacle on the part of the civil law referred to in the above decree appears to be the prohibition to swear in witnesses.
For, as appears from the testimony in the famous trial of the Rev. Robert O'Keefe, P. P., v. His Eminence Cardinal Cullen, the swearing in of witnesses by the ecclesiastical judge, in Ireland and also in England, seems illegal and pos- itively forbidden by the law of the land. Thus the Most Rev. Dr. Leahy, Archbishop of Cashel, being examined for the defence, and asked : " Now, in proceeding in canon law, must not witnesses be sworn ? " answered thus : " Yes, that is one of the formalities, and it is because witnesses cannot be sworn in such a proceeding in this country that an or- dinary judicial proceeding is impossible." 3 In the United States the swearing in of witnesses is not forbidden by the civil law, as we show above, Vol. II., Nos. 843, 1344.
1 Syn. PL Mayn., n. 261. 2 lb., p. 248. 3 See vol. ii., n. 843.
Supp ' L ' d Ri ' /<><
Aim III. Support >•/ Dismissed and Suspended /■< - lest i jj i. Support oj Dismissed Recti >
[850. Q, Is an Ecclesiastic who is dismissed from h ish, office, 01 benefice, to be left without an) support w\ evei . even though moderat
./. We premise: we say in the question, even ///< moderate; since there can be no question <>i giving Ec< l< as tics who are discharged for unworthy conduct an ample or even comfortable living, such as they had when th< were in good standing. The law oi tin Church, as laid down already by the great Apostle oi the Gentiles, is: "Th who work in the holy place-, eat the things that are of the holy place: and they who serve the altar, partake with the altar. . . they who preach the gospel, should live of the gospel."1 In other words, those Ecclesiastics only are en- titled in justice to a sustentatio congrua, 2 that is, comfortable living, in keeping with the dignity of their state, who work in the ministry. Consequently those who, by their own criminal conduct, render themselves unworthy to work in the sacred ministry, and are therefore deprived of their office or suspended from it, have no right to this ample and honorable support, derived from the income of the office. The reason is plain. For, to give such Ecclesiastics the same ample support which they received while they
1 I. Cor., ix., 13-14.
2 By amgrua sustcntatio is here meant not a scanty, but a comfortable and honor- able support ; that is, a living which supplies, not merely the necessaries, but also the comforts of life, in keeping with the ecclesiastical state. When a person is ordained ad titulum bencficii or missionis, this support is derived from the income of his office, benefice, or mission. When he is ordained ad titulum Patrimonii, it comes from his private property. Dismissal or suspension, as is evident, only entails the loss of the income of the office or mission, but not of the Patrimony.
96 Support of Dismissed Rectors.
were in good standing, would be putting a premium on
crime. '
i860. We now answer: While unworthy Ecclesiastics who have unfitted themselves for work, and are in con- sequence deprived of their office, cannot claim an ample support, they are nevertheless given as much as is neces- sary to supply their actual wants. In other words, they receive, not the comforts, but merely the necessaries of life, in order that they may not be obliged to go begging or to engage in secular pursuits, to the disgrace of the entire ecclesiastical state.
1 861. This appears to be also the teaching of the TJiird Plenary Council of Baltimore, which says : " Quamvis itaque sacerdotes, qui ob suam culpam a sacris arcentur functioni- bus, non possint titulo justitias ab Episcopo exigere, ut eorum temporali necessitati provideat (Cone. Plen. Bait, ii., n. yy) ; qui enim titulo missionis ordinantur ex missione sustententur, ita ut ii solum qui in sacrario operantur, quae de sacrario sunt, edant (I. Cor. ix. 13, 14). . . attamen, quo efficacius aberrantes in semitam rectam reducantur, enixe commendamus ex S. Congregationis de Propaganda Fide consulto, ut domus qusedam a religiosis viris regendae in- stituantur, ubi sacerdotes lapsi, qui spem fundatam conver- sions exhibent, pro tempore ab Episcopo statuendo, vitam degant." 2
1862. This is also the common teaching of canonists.1
1 Natural justice itself requires that the good servant should be rewarded for his fidelity and labor, and therefore receive a just and ample support for his labors, and that, on the other hand, the unworthy servant should be punished and lose the emoluments of his office. The Church, therefore, acts in harmony with natural just- ice and equity, when she deprives unworthy Ecclesiastics of such an income as will supply them with the comforts of life, and leaves them merely what is necessary to keep them from begging or doing secular work.
» Cone. PI. Bait. III., n. 72.
3 Cf. Schmalzg., 1. 5, t. 39, n. 30$; Miinchen, I. c, vol. ii., p. 234; Droste, $ 122, pp. 150, 157.
Supp Dismissed l<
Thus St i emlei ' writes " For th ii om
ncficc always li i \ es to th< Eccl( the i ifi I'' i" i he means i >1 subsii ten( c I he cccli tical judge is bound in conscience to provide foi the support the person condemned, and il he refuse to comply with this duty ol justice, he can be compelled to do it by his Superior. He Bhould assign to the cleric who is deprived ol his benefice and who has no other means ol subsist an .iiniiciii.il \ pension, or keep him in a monastei ) . a< i ord* ing to the gravity oi his offence, and not allow him to tramp about, deprived oi all means oi Living. For, say the Sacred Canons : " Paupertas cogit ad turpia"
1863. This whole teaching is based on the general prin- ciple, frequently laid down in the Sacred Canons, that an Ecclesiastic, even though he is guilty of crime, nevertheli remains an Ecclesiastic, and should therefore not be placed
in such a position as to be obliged to go begging, or to engage in secular pursuits. In fact, what is the dignity and
power of the priesthood? St. Augustine exclaims: "O vencranda sacerdotum dignitas, in quorum manibus, velut in utero virginis, Filius Dei incarnatur ; O venerabilis sanctitudo manuum ! O felix exercitium! Qui creavit me (si fas est dicere) dedit mihi creare se : et qui creavit me, sine me, Ipse creabit se, mediante me."2 St. Ephrem calls the priesthood " magna, immensa, infinita dignitas."
1864. The Church has been at all times most anxious to preserve and to increase the respect due to the priestly dignity and character, and to remove and forbid whatever may tend to lessen it. Hence she has, from the earliest days down to the present, forbidden priests to enter upon secular pursuits or to beg for a living. 3 The reason is thus given by the S. C. de Prop. Fide, in its Instruction " de titulo ordinationis " issued for the United States, Apr. 27,
1 Des Peines eccl., pp. 31, 32, 33. 8 Horn. 2 in Ps. 37.
3 Can. 26, Dist. 86; Can. 1, 2, 3, 9, Dist. 87; Can. 23, Dist. 93.
qS Support of Dismissed Rectors.
1871 : 'Cum indecorum omnino sit, atque a clericorum, qui in sacris ordinibus constituuntur, dignitate prorsus alienum, ut ipsi aut emendicatis subsidiis aut ex sordido quaestu ea quae ad vitam necessaria sunt sibi comparare antur." The Council of Trent1 also says: " It beseems not those who are enrolled in the divine ministry, to beg, or to exercise any sordid trade, to the disgrace of their order."
1865. In order to remove Ecclesiastics from any necessity of begging or engaging in secular business, the Church strictly enjoins that those who are promoted to sacred orders should be provided with a competent and sufficient means of support. 2
1866. Now, as we have seen, the motives which cause the Church to assign to priests a suitable living and to forbid them to beg or engage in sordid trade, apply also, in a measure, to priests and Ecclesiastics whose conduct has made them unworthy of their office. For, even though they are guilty of crime, they are nevertheless priests forever. The sacerdotal character and dignity remain in them for all eternity. Consequently the Church is solicitous to preserve even in them the dignity of the ecclesiastical state. Hence, even when she deprives such Ecclesiastics of their offices or parishes, she does not take away from them all means of subsistence; she does not reduce them to beggary or the necessity of engaging in sordid secular avocations. 3 She does not, it is true, supply them with the ample and honorable support which is due, as a matter of justice, to the worthy priest, who labors
• Sess. 21, cap. 2 de Ref. 8 Cone Trid., sess. 21, cap. 2 de Ref.
Where these Ecclesiastics, who are dismissed, or suspended a beneficio, have other sources of income besides those of the office from which they have been dis- missed or suspended — v.g., where they have means of their own — the Ordinary is not bound to give them even a moderate allowance. For, as was seen, the moderate support is to be given only to those who need il, and who would otherwise be obliged to beg or do secular work for a living.
Support ■■/ Dismissed Recta
faithfulh in the mini try. I mi \w n<\ <i ih< nm
such .1 support as will enable him to me< i hia & tual wranl She does this, not so much a a mattei oi justice, 01 out «»i consideration foi the offender, as out ol regard foi the lesia i ical dignil \ .
I )i course, the Church gives this moderate or scanty allowance onh to those who are wrillii imend. Foi to
those who persist In theii evil course and give no sign ol amendment nothing whatever need be given, unless th< arc- in extreme need or in danger oi ition.
[868. This isapparent also from the following declaration ol the S. C. de Prop. Fide, inserted in the Actsoi the Third Plenary Council of Baltimore:* u Utrum et quomodo decla- randum sit, sacerdotes titulo Missionis ordinatos, qui indignos reddiderunt sacri ministerii exercendi, hoc titulo privari ; neque Ordinarium teneri ad sustentationem illis praebendam." To this question the Cardinals of the Propaganda, in their general meeting, held Febr. 4, 1873, replied: "In casu, prout exponitur, praevia declaratione ejusmodi sacerdoti ab Episcopo facienda, et quamdiu praedic- tus Sacerdos in sua prava vivendi consuetudine perseverat, nullum exhibens sinceras resipiscentise signum, Episcopum non teneri ad sustentationem i Hi praebendam. Sejunctim autem a resolutione dubiorum per epistolam significetur Ordinario (eidem episcopo), ut ad dictam declarationem non deveniat, nisi postquam paternis ac repetitis monitis ejusmodi sacerdotem ad resipiscendum frustra invitaverit."
1869. It is in the light of this declaration that the following decree (n. 77) of the Second Plenary Council of Baltimore, as retained by the S. C. de Prop. Fide, in its Instructions Quamvis of July 20, 1878, 2 and Cum Magnopere of 1884, 3 is evi-
1 P. 210. - Ad nubia, § I.
3 Art. xlv. The words are: " Concilii PI. Bait. II. decreta, n. 77, 10&. quoad juridi- cos effectus remotionis missionariorum ab officio, nullatenus innovatr *eu infirmata intelliguntur."
ioo Support of Suspended Ecclesiastics.
dentlv to be understood : " Sacerdotes quibus per Ordinarii sententiam sacerdotii exercitium interdictum fuerit, nullum jus Jiabent ad sustentationem ab eo petendam cum ipsi se sua culpa missionibus operani navandi incapaces reddiderint." What has been said holds not merely of dismissal, but also of deposition, which is nothing else, than dismissal joined with disqualification for any future appointment.
§. 2. Support of suspended Ecclesiastics.
1870. We here speak only of suspension a bencficio, which alone affects the income of the benefice or office. By suspension a bencficio is meant the prohibition to draw the income of the benefice. In the United States, the act of the Bishop forbidding a Rector or an assistant priest to draw his salary would be suspension a bencficio. This suspension may be total or partial. In other words, an Ecclesiastic may be forbidden to draw his salary, either wholly or only in part. In the following lines we speak of total suspension from benefice.
1 87 1. Q. Is an Ecclesiastic who is suspended from receiv- ing the income of his office to be left without any support whatever? In other words : Is a cleric who is suspended a bencficio deprived, during the time of his suspension, completely and absolutely, of the income of his benefice or office, in such a manner as not even to be allowed to receive as much as is necessary for his support?
A. When the suspension is inflicted, not as a censure proper or correctional punishment, but as a vindicatory punishment (which is the case when it is imposed for a determinate period of time, or for crimes altogether past), the ecclesiastical judge is bound to assign to the person thus suspended, out of the income of his benefice or office, as much as is required for his support.1
1 Schmalzg., 1. 5, t. 39, n. 305; Kober, The Suspension, p. 122; Glossa in Cap. #5, de elect., v. admiserunt (I. 6),
Support <>/ SuspctuUd Ecclssuutu km
iS;.'. Tin t< .K hn l(.n!\ laid down 111 the l.iw of the
Church, One < >> two examples from I he Sa< red Canons wrill place it in ;i clearer light A < ertain deacon had knowingly and wiliullv celebrated mass before ii« had been ordained a pnest. Pope Urban 111., (A. I). n86.) to whom the case was referred, ordered that for this (nmc he should be
suspended horn his ofluc and benefice for two <>i lln
\ ears, as the Third Lateran Council directs ; but that nev< theless he should he left the necessary means <<l support,
lest he should be obliged t«> return to secular pursuits. I lis
words are : " I)e bench eio ant em in i seri co rd il <r agatlir I urn
co, m sustentatione privatum adsctculi negotia revi rtatur" ' The Cap 2$, de election* (i. (,i gives another instance. Certain Ecclesiastics had knowingly elected a person to an eccl
lastical office, who was disqualified by the Sac red Canons. For this offence, they had incurred suspension from their benefices lor three years. Nevertheless the Glossa, comment- ing on the word adtniserunt of the above decretal, says :
° Tamen modicam sustentationem debent tunc habere, ne ex toto egeant."
1873. In both these cases, there is question of suspension for a determinate time, and therefore of suspension inflicted as a punitive, and not as a correctional punishment. And reasoning from these canons, canonists assert it as a general principle, that an Ecclesiastic who is visited with a vindica- tory punishment, whether it be dismissal or deposition, or a suspension which is punitive, shall always be provided with the necessary means of subsistence.
1874. Canonists, however, teach that an Ecclesiastic can be left temporarily without any support, where he is sus- pended a bencficio, not by way of pure punishment, but bv way of , censure proper or correctional punishment. In other words, an Ecclesiastic is not entitled to any support
1 Cap. Ex litteris, de cleric, non ord. (V. 28.)
1 02 Support of Suspended Ecclesiastics.
whatever, except he be in extreme or absolute want, when the suspension from his income {suspensio a beneficio) is intlictcd upon him as a medicinal punishment or as a cen- sure. The same applies to excommunication, which also de- prives an Ecclesiastic of his income, is always a correctional punishment, and can never be inflicted as a vindicatory punishment. x
1875. The reason is, that, in this case, the Ecclesiastic has it in his power to regain, at any moment, his income or support, by returning to the path of duty. For it is the peculiar characteristic of censures, when imposed as correctional and not as vindicatory punishments, that they are to be withdrawn as soon as the offender amends. They are spiritual medicines intended to heal a spiritual malady. Hence they should be discontinued as soon as the spiritual disease is cured, that is, as soon as the offender becomes penitent and recedes from his obstinacy and incorrigibility. Consequently, as soon as a person who is thus under censure becomes repentant, he acquires at once, by his amendment, the strict right to absolution from the censure, and the Superior is strictly obliged to accord this absolu- tion, as soon as he becomes aware of this amendment. 2 If the Superior refuses to grant the absolution, the higher Superior, when appealed to, is directed by the Sacred Canons to impart it. 3 Consequently, if an Ecclesiastic, thus suspended for contumacy, or excommunicated, chooses of his own free will to remain deprived of his income, by continuing in his perverse, obstinate, and contumacious course, he has nobody to blame but himself, since he has it in his power at any moment to regain his income, by repentance. But even in this case, if the cleric is in extreme want, he should be given what is absolutely neces-
1 Cf. Kober, Excom. p. 354.
1 Cap. 25 de appell. (2. 28) ; Cap. II de Const, (i. 2).
3 Cf. Kober., Excom., p. 451 ; Kober, Susp., p. 121.
Suppa / oj Sits/
s.ii \ foi bis support, in ordci to keep him from starvation.1 1876. I li< quite diff< rent writh punishment! wrhi< h
.11 r 1 > 1 1 1 1 1 1 w c, ii.iiikU . u ii li punitive ui i" 11 11 >n, m ith d
missal, and deposition. Tin c< at 1 withdrawal of thi
punishments depend: rather on the will oi the Superior 01 ol the law, than on the amendment oi the delinquent It does not, .11 least absolutel) speaking, lie in tin- p< oi the person punished to have the punishment remitted l>\ good conduct. I Line the l.iw oi the Church provides that, not so much for the sake oi the Ecclesiastic himself, as foi the honor and dignit} "l the ecclesiastical state, to which he belongs, a moderate allowance should be given him for his support.
1S77. We have just said that the withdrawal of vindica* tive punishments does not necessarily follow upon the amendment oi the delinquent. However, it should be borne in mind that the Church's mission or end is to save souls. Consequently, even when she inflicts vindicatory punishments, she aims not merely at vindicating her laws and upholding her social order, but also at reforming the delinquent. Hence it may be said that all her punishments partake4 more or less of a medicinal character. Therefore, if the delinquent repents, the Church or the ecclesiastical judge remits even vindicatory punishments, either wholly, or at least in great part, unless the enormity of the offence or the greatness of the scandal demands otherwise.2
1878. This is also very beautifully stated by the Third Plenary Council of Baltimore : " Semper enim sumus parati eosdem (aberrantes), dummodo de insipientia sua dolentes cordique patris confidentes in domum paternam redeant, brachjis apertis recipere, eisque jura fratris junioris restau-
1 Cap. 53 de app. (ii. 2); Glossa, ib. v. subtrahuntur ; Kober, Excom., pp. JL5Q,
355-
8 Sanguineti, Inst., pp. 459, 400; Schulte, K. K. R., vol. ii., p. 387.
104 Support of Suspended Ecclesiastics.
rare, gaudentes quod films qui mortuus erat revixerit et qui perierat inventus sit. (^Luc. xv. 24)." !
l$79' Q- From what source is the above support to be taken, also in the United States ?
A. From the income of the benefice, parish, or office of the delinquent, in the case of one suspended from benefice, or excommunicated. In the case of one dismissed or deposed, it is taken from the revenues of the parish or office of the person dismissed, where these revenues are sufficient ; otherwise from other diocesan resources. It may be asked, whether in the United States, where the income of the parish or office is not large enough to provide this support, it may be taken from the taxes and alms which are collected for dispensations from the banns and impediments of marriage, or from other sources of a similar kind ? There is certainly nothing in the law of the Church which forbids it. By the Sacred Canons, these taxes and alms are to be applied exclusively to pious and charitable uses. Now, both by the letter and spirit of the law of the Church, the support of indigent erring Ecclesi- astics is pre-eminently a charity and a pious use.
1880. Finally we observe, from the rule laid down by which delinquent Ecclesiastics are to be provided with a moderate support, the Glossa 2 excepts the case of an Ecclesiastic suspended from benefice (a pari, if he is excom- municated) who has an income of his own. Its words are : " Sed si tales suspensi a beneficio haberent partrimonium vel aliud unde vivere possent, tunc ex beneficio nihil habere debent."
1 Cone. PI. Bait. III., n. 72. 2 In cap. 25 de elect, (i. 6.), v. Admiserunt.
C!l VPTER II.
TF w I I PI M II m
( Translatio pcenaliS) translocatio
[88 1. Having in the preceding chaptei explained missals (privatio parockiat), we shall now dwell brief!) on transfers in their capacit) oi punishments.
Art. I.
Nature and Division of Transfers*
[882. Definition. — Bv a transfer {translatid) is meant the change or removaJ oi an Ecclesiastic from one church or position to another, made by authority oi the Superior, for
cause.1 The main difference between a transfer and a dis* fff&oz/ is this : by the latter, an Ecclesiastie is deprived of
his church or office without being at the same time appointed to another, while by the former, he loses indeed the old church or office, but yet is at the same time ap- pointed to a new one.
1883. Division. — How many kinds of transfer are there ? These: 1. Administrative and penal. A transfer is adminis- trative, when it is made by the Ordinary for reasons of utility or necessity, and therefore not for crimes. It is penal when it is made in punishment of offences. 2. Voluntary and compulsory, according as it takes place with or against the will oi the incumbent. A voluntary transfer is there- fore equivalent, partly, to a resignation, since the incum- bent freely gives up the old parish for the new, and partly to an appointment to a new church. A compulsory transfer,
1 De Angelis, Prsel. 1. i., t. 7, n. I.
Transfers as Punishments.
however, partakes on the one hand of the nature of a dis missal, since by it the incumbent is deprived of his church against his will, just as by dismissal, and on the other, of the character of an appointment to a new church or office. 3. Finally the transfer is either to an inferior or to a better church or office.
1SS4. Q. How are transfers made?
A. I. It is prescribed by the law of the Church that Eccle- siastics shall not be transferred, especially against their will, except ior grave and sufficient cause of necessity or utility, that xcept where it is really necessary or evidently useful. l The particular causes which make a transfer necessary or evidently useful, and therefore render it lawful, are indica- ted above, Vol. 1., No. 362. Again, the law of the Church allows of transfers, also for crimes, in cases where there are no other causes of necessity or utility.
2. These causes are to be legitimately established. 2 For, as Leurenius 3 teaches, when the law prescribes that an act shall be done for cause, the latter is not presumed, but must be proved or shown to exist.
3. The transfer should, as a rule, be from an inferior to a better church or office. For a transfer from a better to an inferior church or office would belittle and reflect discredit, not only on the person transferred, but also on the better or higher office itself. 4 We say, as a ride ; for it is plain that a person can be transferred to a worse or lower office, when he is guilty of offences or neglect of official duties, and has thus made himself unworthy of the better or higher office.
1 Cnn. 34 et 35, C. vii. Q. i ; Cap. Qtiicsitum 5 de rer. perm. (iii. 19). Hence Leurenius says that, when transfers are made without grave cause, they are made in direct violation of the law of the Church, and should therefore be annulled by the Superior ad quern. (Leur., For. Renef., P. 3, Q. 855.)
I >'-. Angelis, 1. c, n. 2; Leur., For. Benef., P. 3, Q. 855. 3 L. c.
4 Cap. 1 et 4 de transl. (i. 7.); Santi, 1. c, 1. i., t. 7, n. 9.
I > ,/s Punishments*
Ail. II. Tra Irremovable Rectors also in the United Stat
1885. Q Can the Bishop, also with us, transfei an irrc movable Rector, against his will, from one parish to anothei oi the same diocese, for reasons oi utiMu and n< although the Rector is not guilty oi crin
./. We distinguish between the transfer to an inferior, and the transfer t<> a better <>i" equal parish. Now, in the estimation oi all mankind, the transfer to a worse parish or office is regarded as a humiliation and a disgrace. Hen* is looked upon by men as a grave punishment. Aci ordingly, 11 is the unanimous teaching oi canonists that a transfer to a worse or minor place, inflicting, as it docs, dishonor and also diminution oi income, is placed on the same footing with dismissal proper or privatio, and can therefore be made only in punishment of delinquencies. See Vol. [., No. 394, sixth edition.
1886. Thus Permaneder teaches: "The transfer of an Ecclesiastic against his will from a better to an inferior benefice or office is to be regarded as a privatioOT dismissal.1 Phillips also writes : " The transfer to a smaller benefice or office is strictly a vindicative punishment or poena vindica- tii'ci"- The Holy See has also repeatedly declared that transfers to inferior parishes or offices are punishments, and consequently imposable only for crime and bv trial. 3 Con- sequently the Holy See always commands the Bishop to give a Rector who is transferred against his will for causes which are not crimes a parish that is better than or at least equal to the former in all respects.
1 Permaneder, I. c, pp. 442, 443. See also Walter, §239, p. 469 ; Phillips, Comp., ^ 87. iii. and i; iSS.
3 Phillips, Comp., § 1S8 and ^ 87 iii.; cf. Permaneder, p. 442.
8 S. C. C. 26, Apr. 1 87 1 ; S. C. C. 22 Martii 1873 ; cf. Analecta J. P. anno 1875, p. 607 and p. 880.
?o8 Transfers as Punishments*
1S87. But can the Bishop, also with us, transfer an irre- movable Rector, against his will, to a better parish, or to one at least equally as good as the former, for grave reasons of utility or necessity, even though the Rector is not guilty of crime? There are two opinions, one affirming, the other denying. Those canonists who hold the negative, contend chiefly that such transfer is totally repugnant to the privi- lege of irremovability which these Rectors possess, and by virtue oi which their parish can be taken away from them, against their will, whether by dismissal or transfer, only for the specific crimes and by the form of trial laid down in law, and therefore not for reasons of utility or necessity which imply no crime on the part of the Rector. l
1888. Those who hold the affirmative — and their opinion seems the more common opinion — maintain that the right of irremovability is not to be stretched so far as to redound to the evident and grave detriment of the Church and souls, and therefore does not exclude compulsory transfers when they are required by most urgent and grave reasons of neces- sity and utility, even though the Rector to be transferred is not guilty of crime. 2
1889. However, these canonists teach at the same time, 1. that not every grave reason of necessity or utility is suf- ficient for such transfer, but that it is necessary that the Rector should have become useless in his parish, — v.g., be- cause of the hatred or ill-will of the greater number of the parishioners — and that, therefore, the transfer is not simply useful, but imperatively necessary. 3
1890. — 2. That the existence of these urgent and grave causes must be established beyond a reasonable doubt, and that by a proper investigation put on record, so that it may ippear ex actis, whether there is cause. For if the Bishop
' Cf. Walter, § 239, p. 479. 2 I)e I'.rabandere, Jur. Can. Comp., vol. i., p. 349. Brugis, 1882. > lb., arg. can. 6, Dist. 74; Cf. Pierantonelli, 1. c, p. 208.
Tt ansfii i </ Punishment
is unable i<> prmn I he exii tence oi thesi n
the I [olv Sec, to whom the p< i I < mi i | I I '.
the transfei will be 1 1 I and I he l\< « i«»i rein tated in I
parish. The reason is, that, unless iin Bishop can six clearly that he acted from sufficient motives, the presump tion will be that he was animated l»\ unjustifiable motivi namely i»\ ill-will, malice, or other pei tonal feeli the canons say, that he was influenced, non sanitate consiiiit ted invidiaet ament id .' Picrantonelli holds thai irremovable Rectors ran be transferred against their will, even though it be to a better parishy only l>v a Formal canonical trial, or bya canonical summary trial, where the solemn one cannot be given. 3
[891. — 3. That the incumbent should be induced, if p sible, to consent freely to the proposed transfer: for to a person willing all is easy; to one unwilling, everything impossible. It is not likely that an Ecclesiastic, transfer] against his consent, will labor with fruit or alacrity in his new field. Hence such transfer would benefit neither the new church, nor the person transferred. And yet it is only for the purpose of benefiting either the Church or the incumbent that a transfer is allowred. 3
1892. — 4. That it shall clearly appear that the church to which the incumbent is transterred is really better than or at least as good as the former, both in honor and income, so that the Rector transferred will not suffer in his honor or revenues.
1893. — 5. Finally, that, even where strong and urgent reasons of necessity demand a change, v. g.y where a Rector has alienated the good will of the majority (not merely of a few) of his parishioners, v. g., by indiscreet zeal, by imprudence, and harsh temper, the transfer cannot
1 Can. 7, 8, Dist. 74. a Pierantonelli, Praxis fori eccl., p. 109.
3 Pierantonelli, 1. c, pp. 108-109.
i 10 Transfers as Punishments.
take place,1 where the evil calling for the transfer can be remedied by other means, v. g.} by the appointment of an assistant to aid the Rector. a
1S94. From this it will be seen that, even in the opinion of those canonists who teach that irremovable Rectors can be transferred against their will to abetter or equal parish, for reasons ot necessity or utility, and not merely for crime, this compulsory transfer is hedged in with so many condi- tions and limitations that, practically speaking, it is not safe for a Bishop to make such a transfer, except for crime and by trial. Pierantonelli, 3 as we have seen, expressly teaches that the regular canonical trial (with us, the trial as out- lined in the Instruction Cum Magnopcrc) must precede all involuntary transfers of irremovable Rectors.4 We need not add that the principles here laid down respecting the transfer of parish priests who are canonically irremovable apply fully to our irremovable Rectors. For they enjoy the right of irremovability in the same manner as canonical parish priests proper. See above, Vol. 1., Nos. 394 sq. ; Nos* 643 sq., sixth edition.
Art. III. Transfer of Removable Rectors, also in the United States.
1895. Q. How can Rectors with us, who are amovibiles, be transferred by the Ordinary, against their will, even to an inferior mission or office.
A. The Sacred Congregation de Propaganda Fide, in a recent important decision for the United States given March 18, 1887, answers thus:6 "Cum vero agatur de translatione Rectoris (qui est amovibilis) ab una Missione ad aliam aut ad aliud officium etiam inferius, Ordinarii non
1 Leur., For. Benef., Q. 867; De Brabandere, 1. c , vol. i., p. 350.
8 Arg..Conc. Trid., sess. 21, c. 6 de Ref. 8 L. c, p. 109.
4 Cf. Walter, 1. c., p. 469. 5 See the text of the entire decision in the Appendix.
fi an ;/ , i \ 03 Funis hmen \ \ r
tenent m ad < am >ni< i pro< u< t i< >n »
aiitem ut ho< fiat grav< obcau a . el habita mcritorum ratione juxta dispositionem Concilii rirn.nn Baltimorem
III. Tit. 1 1., ( lap. v., / j \ Si i" casu I rani lat i< al
i , , in mis ad S. ( Ion I u >ncm, S. ( '« m tio i emitfc I
recursuro ad Mctropolitara, \<| si agaturdc Metropolita, ad Met 1 opolitam viciniorem."
[896, Accordingly, i. a grave cause is required. This is in I i.i 1 1 1 1 1 >■ 1 \ with the entire legislation of the Church. For, as we have seen, the Sacred Canons enact that E< cii who hold offices In the Church, even though thev are amovibileSy and even though they are not Rectors of souls, shall not be transferred, especially against their will, without grave and sufficient cause. While this applies to all Ecclesiastics who hold offices, it applies with peculiar force to a Rector of sou Is > who should know his people, be a father to them, and who should therefore be changed or transferred as little as possible. See our New Procedure, Nos. 594, 595.
1897. — 2. When Rectors who are amovibiles are transferred for causes of necessity or utility, which are not crimes, the transfer is to be made in such a manner as not to inflict dishonor, humiliation, disgrace, pecuniary loss, or other grave injury upon the person transferred. Now, in the estimation of all mankind, a transfer to a worse or inferior place is regarded as a humiliation and a disgrace, just as the transfer to a better place is looked upon by all as n. promotion and an honor. Moreover, the transfer to a worse place natu- rally brings with it also a decrease of income ; for the smaller the place is, the smaller will be the salary or perquisites of its incumbent. Now, to inflict disgrace and pecuniary loss is a punishment, and should, as a rule, be imposed only for offences which make a person unworthy of his reputation, and of the esteem of others. Consequently a removable Rector, also with us, should, as a rule, be transferred to an
1 1 2 Transfers as Punishments.
inferior mission or place only in punishment of delinquen- cies. See our New Procedure, No. 596.
1898. Again, as a transfer to a better place is considered by all an honor and a promotion, and is therefore coveted by them, it should naturally be made as a reward for merit, namely as a reward for virtue, learning, valuable and long services rendered, fidelity and ability in the discharge of duties. In like manner, the transfer to a minor place, whether as to honor or income, is looked upon by all men as a humiliation, and is therefore greatly dreaded by them. Hence it should naturally be made as a just desert or punish- ment for demerit, that is, for offences, or grave negligence, or culpable inability in the discharge of duties. This is implied by the words habita meritorum ratione in the above decision of the Holy See. See above Vol. L, Nos. 395 sq., sixth edition.
1899. It is also in accord with God's own way of acting, as expressed in this beautiful passage of our Saviour : " Euge serve bone et fidelis : quia in pauca fuisti fi 'delis, supra multa te constituam." ■ It is also in harmony with the natural feelings and inborn sense of justice of all mankind. Everybody feels instinctively that promotion or transfer to a higher or better office is a deserved reward for merit ; and that a transfer to an inferior place is a just punishment for demerit, or crime.
1900. — 3. The above causes, whether of utility or necessity, or of crime or demerit, calling for the transfer of a remov- able Rector against his will, must be legitimately established. 3 This is plainly indicated by the above decision, when it allows of recourse to the Holy See against the transfer. This follows also from the principle laid down by all canonists, that, where the law requires a cause, the latter is
1 Matt., xxv., 23.
1 He Angelis, 1. i., t. 7, n. 2 ; id., 1. i., t. 28, n. 7; See also a very important case decided by the Holy See, in the Acta S. S., vol. iii., p. 512.
Transfer* as Punishnunl \\ \
not presumed but must be proved ( Ion i qui ntrj . a La ui inns tea< hes, if is neo ai \ i hal I hi ( h i linai j . tx b >i i making tin- transfer, should make a. can: itt . that i ,
.1 careful in> ition, and thus obtain proofs in ordei that it
maj appeal tx a tis that there are real) >d and sufficient reasons for the transfer. For, continues Leurenius,1 the mere assertion ol the Superior that there are such i is
not to be believed by the Superior to whom the person transferred has recourse. In fact, canonist that, unl<
the Ordinary clearly proves the existence oi grave and sufficient causes for the compulsor} transfer, also oi re- movable Rectors, the presumption will be that he acted from persona] motives, in which case the transfer will always be annulled by the Holy Sec.2 However, the existence of the cause need not be established by a canon- ical trial, as the above decision of the Propaganda expressly states.
1901. It may perhaps be objected, here, that the above teaching appears to be in direct contradiction with the power of the Ordinary to remove or transfer, at will — ad nutum —a Rector who is amovibilis. The objection, however, does not hold. For the Holy See has frequently decided that the clause ad nutum means, not an arbitrary or despotic power, that is, not a power to remove or transfer without sufficient cause, but the arbitrium boni viri. 3 Now the will of a good man is that which is directed by reason, justice, and equity. 4 The power to transfer or dismiss removable Rectors is a limited and not an absolute power. 6
'Lc, q. 855. 2 Ib.
3 Pallotti, Coll. v., appellatio, Art. I., n. 240; Acta S. S., vol. 18, p. 74.
4 De Angelis, 1. i., t 28, n. 7. 5 Acta S. S., vol. iii., p. 506 sq.
CHAPTER III.
DISMISSAL COMBINED WITH DISQUALIFICATION FOR OFFICES.
{Deposition
Art. I. Character of this Punishment.
1902. Deposition is a canonical punishment by which an Ecclesiastic is forever deprived of his office or benefice and of the right to exercise the functions or power of his ordo. We say , forever : for, as we have seen, ' deposition not only deprives one of the benefices or offices which he actually holds, but, moreover, disqualifies him to obtain other offices, benefices, or dignities in future. It has, moreover, infamy or public disgrace annexed. This punishment, which, as is manifest, can be inflicted only on Ecclesiastics, is frequently mentioned by the older canons of the Church, in these or similar terms : " Deponatur ab ordine, ab officio, a presbyteratu." 2 In former times it was imposed more frequently than now ; in fact, at the present day, it is but very rarely inflicted, simple dismissal coupled with perpetual suspension usually taking its place. °
Art. II. Formalities. — Duration.
1903. The punishment of deposition is perpetual and irre- missible in the sense that the Ecclesiastic so punished, has
1 Supra, vol, i., n. 401, sixth edition. 2 Can. Eum qui 40, c. 7, q. I.
3 Stremler, 1. c, p. 35.
Dismissal ( ontbined with Disqualification for Offid
no right, even aftci he has done full p< nan< e, and am< nded, to be pardoned 01 released from it. The Superior, however, oi I lishop m.i \ reinstate him, provided he be truh penitent, and provided the crime was not an atnx ioua one, sueli as wilt ul murder,1 or the consecration <>i a pei on Bishop who was not appointed. ■ Wi ay, the Bishop may; for he is never obliged t<> do it. During the vsa am j oi the Bishopric, the chapter or its vicar ma\ also grant the pardon or reinstatement. Deposition does not deprive a
person of the privileges ol the Keelesiasl ieal stal
1904. As deposition is at present scarcely ever imposed,
we shall not expatiate on the crimes for which alone it (.111 be inflicted and on the canonical trial which is required. Suffice it to say that deposition is, after degradation, the greatest punishment of the Church. Hence what we have said above, in speaking of dismissal, regarding the necessity of crime and previous trial, applies with much greater force to deposition. It can be imposed only for crimes which are enormous, give great scandal, and are expressly stated in law, such as wilful murder, public concubinage, etc. s
1 Can. Minor 4, Dist. 5. 2 Can. 7, c. 2, q. 3; Miinchen, 1. c, p. 146.
3 Stremler, 1. c, p. 36.
CHAPTER IV.
DEGRADATION OF ECCLESIASTICS. (Degradation)
Art. I. Nature and Effects of this Punishment.
1905. Degradation is a canonical punishment by which an Ecci siastic is wholly and forever deprived of the exer- cise of „he power of the ordo (the indelible character of order remaining, of course), and also of all office, dignity, and benefice, by a solemn sentence of the judge, and is reduced to the state of a layman, losing all ecclesiastical privileges., namely fori and eanonis, and given over to the secular arm. In a few words, therefore, as we have said, l degradation is not only a deposition, but also the expulsion from the ecclesiastical state and the putting back into the lay state, and therefore the loss of all ecclesiastical priv- ileges.
1906. This punishment is justly and appropriately called degradation. For, what can be more degrading or disgraceful than to be reduced from the high rank of the priesthood to the level of the laity. It is not indeed to be imagined for a moment that the state of the laity is a degraded state ; on the contrary, it is in itself a state of the highest honor. But when a Christian has been raised from the lay to the ecclesiastical state, and is afterward expelled from it and put back among the laity, for gross crimes, every body will see that such a fall W an extreme degradation.
1 Snpra, |1. i., n. 401, sixth edition, 1887.
Degradation oj Ecclesiastics* 117
fa »•■. 1 )< ••■ 1 .it lit ion is 1 w 1 >f< >ld ve% balx whi< h con the sentence itseli oi degradation; realox actual, which so to say, the execution oi th< verbal degradation, II. (litici therefore from each othei Bimprj as the commen menf and complet ion oi < >ne and 1 lie same 1 hinj
[908. The verbal degradation does not ipso facto deprive one < >t the pi \\ ileges <>i ih<* eccl( te ; the i eal 01
actual does. Vgain, one who is verbally degraded may be re-instated by the Bishop; one who is actually or really, only 1>\ the Holy See. A person who is degraded remains hound by tin- vow ol chastity, if he is in sacred orders, and consequently cannol contracl marriage validly. He can validly absolve in case of necessity.
1909. Degradation can be inflicted only for enormous crimes, and even then only when they arc expressly and clearly designated as punishable with degradation. More- over, as this punishment is the greatest and severest inflic- ted by the Church on Ecclesiastics, it can be resorted to onlv as the very last means, and after all the other milder punishments have been applied in vain. Thus Pope Celestin 111. says: " Quod si clericus. . . in homicidio fuerit depre- hensus legitime, atque convictus, ab ecclesiastico judice deponendus est. Qui si depositus incorrigibilis fuerit, excommunicari debet; deinde, contumacia crescente, anathe- matis mucrone feriri ; postmodum vero, si in profundum malorum veniens (hasc omnia) contempserit, cum ecclesia non habeat ultra quid faciat, ne possit esse ultra perditio plurimorum, per saecularem comprimendusest potestatem."8 As degradation is at present rarely, if ever, inflicted, we deem it unnecessary to enumerate the various crimes for which the law decrees it.
1 Stremler, 1. c, p. 37. 3 Cap. 10. (II. 1.)
i iS Degradation of Ecclesiastics.
Art. II.
Manner of inflicting it.
1910. Q. By whom and how can degradation be inflicted at present?
A. Formerly, degradation, even though but verbal, could not be imposed upon a Bishop save by twelve Bishops, nor upon a priest except by six Bishops ; nor upon a deacon save by three Bishops. At present, however, the Bishop can alone, either personally or through his Vicar General, deputed to that effect, impose verbal degradation ; and, sede vacantc, the Vicar-Capitular can do it. As to real degrada- tion, the old law has been changed somewhat, so that now, according to the Council of Trent, Sess. 13., C. 4 de Ref., the Bishop, instead of being bound to have six or three other Bishops, as above specified, can inflict it with a like number of mitred abbots, or, if they cannot be had, of other persons con- stituted in ecclesiastical dignity, who are of weight by their age, and recommended by their knowledge of canon law. l
191 1. These priests or mitred abbots are not merely to give their advice ; they are associate judges, and conse- quently have both a deliberative and a decisive vote in the trial and sentence. According to many canonists, more- over, their unanimous, not merely majority vote is required for degradation. 2
1912. Finally We must observe that, at the present day, degradation, verbal or real, like deposition, is scarcely ever resorted to, dismissal or privation taking its place. In fact, real degradation is no longer practicable. For it consists chiefly in handing the offender over to the secular power for punishment. Now, at present, secular governments act, in these matters, altogether independently of the Church, and do not await her action, but proceed at once to punish Ecclesiastics, when they offend against the law of the land.
1 Cone. Trid., sess. 13, c. 4 de Ref. * Arg. cap. 3 de sent, et re jnd.
CHAPTER V.
D9FAM1 AS \ ( iS( >NU \i i'i NISHM1 N (Infamia,)
Art. I. True Idea of ( \iuo)iieal Infamy.
1913. Infamy (in/antia), in general, means public di
or the total loss <>i good name. Here it means not any and every loss ol good name, but only thai bad reputation which is accompanied with public scorn, contempt, and shame.
A person nia\ become inlamous in two ways: first, by the disposition of the law — in our case, of the Sacred Canons — namely where the law or the sacred canons declare that a person committing certain heinous, base, and shameful crimes shall be regarded as infamous in the eves of the law, and as such excluded from ecclesiastical offices and dignities. l Second, by his very actions, that is, by his low, vile, and disgraceful life and conduct, which bring upon him the loathing and contempt of others, so that he is looked upon by others, not only as bad, but moreover as base, mean, and contemptible, and that without any enactment of the law to that effect. 2
1914. The first is called infamy of law {in famia juris) ; the second, infamy of fact (infamia facti). In both kinds of infamy, the crime or action that produces them is one that is not only bad, morally speaking, but moreover base and shameful, so as to produce in others, who are right-minded — for there is evidently no question of the opinion of people
1 Schmalzg., 1. 5, t. 37, n. 165. ; Miinchen, 1. c. vol. ii. , p. 119.
i 20 Infamy as a Canonical Punishment.
who are themselves bad and infamous — not only dislike, but moreover loathing, contempt, and abhorrence.
191 5. The infamy of fact, as Stremler l remarks, depends somewhat on the ideas, customs, and manners of the people and times. Thus an action may be looked upon as infamous by the people at one time and not so at another. Again, it may be contracted even by one innocent of the crime imputed to him; v. g, where a person, though innocently calumniated, is nevertheless unable to show his innocence.
1 9 16. The infamy of the law, as we have seen, is that which is decreed by the law or Sacred Canons for vile and base crimes. We say, vile and base crimes ; for the law does not impose infamy for every crime, but only for those which are of a shameful kind. 2 Now the law of the Church enacts that some crimes shall produce infamy ipso facto, that is, by the very fact of their commission ; others, only upon juridical conviction and sentence. Now, what are the crimes, for which the law of the Church inflicts infamy ipso facto? All those crimes for which the civil, that is, the Roman law imposed infamy ipso facto, except where the canon law expressly ordains the contrary. Thus the canon Omnes, 6, q. 1, says: " Omnes vero infames dicimus, quos saeculi leges infames appellant." Now the Roman law imposed infamy ipso jure for such crimes as keeping bad houses, usury, and others which are given by Reiffenstuel. 3
191 7. We say, the Roman law, for, as Stremler4 well observes, this rule cannot be applied, at least generally speaking, to the civil or secular laws of the present day. For, by a deplorable derangement of modern ideas, some of the secular laws of our times designate as infamous certain actions which can never become even criminal in the eyes of the Church. Yet, in many cases, the infamy decreed by
1 L. c, p. 42. 2 L. 7 fif. de publ. jud. (48, I).
i L. 5, t. 37, n. 55. « L. c., p. 43-
Infamy as \l Punishment*
out civ i l li g i Lit li m < I up< hi in i mm itives, and thci
lore would eem to obtain also in the eyei ol the Church.
[918. The Sacred Canons, besides enacting that the ab 1 11 1.1 in \ « »t the civil lav shall also hold in the Church, ha also directl) decreed that infamy shall be contracted if facte foi 1 ertain crimes, rhe lattei are thusenum< rated in the canon cum fnfames 17, ( ). 1 : " Infam
son. is dicimus, quae pro aliqua culpa notantui infamia, id 1 omnes qui Christiana legis normara abjiciunt, et statuta ecclesiastica contemnunt, similiter lures et sacrilegos el omnes capitalibus criminibus irretitos; similiter et in© tuosos, homicidas, perjuros, raptores, maleficos, venefio adulteros: qui duties calumniantur aut accusant et non probant," etc. We observe here that the infamy which the Church
annexes ipso facto to the above crimes is not contracted
unless the crime is notorious. According t<» Stremler, this notoriety must be established either by a declarative ju- dicial sentence, or by a juridical confession of the guilty person, or by juridical proof of the crime.1 That the crime must be notorious is plain. For infamy is the bad opinion, mingled with scorn and contempt, entertained by a number of persons, and consequently cannot, by its nature, exist where the crime is occult.2
1919. What are the crimes that produce infamy only per sententiatn j'udicis, that is, not ipso facto, but only upon judicial conviction and sentence? Infamy is produced, not by every crime of which a person is convicted, but only by those crimes that are styled public {crimen publicum), such as forgery, adultery, robbery, theft, etc. 3 Thus the Roman law, as adopted by the Church, says : " Infamem non ex omni crimine sententia facit, sed ex eo quod judicii publici causa habuit ; itaque ex eo crimine, quod judicii publici non
1 Stremler, 1. c, p. 42. 9 Schmalzg, 1. 5, t. 37, n. 166.
s Reiff., 1. 5, t. 37, n.38.
122
Infamy as a Canonical Punishment.
fuit, damnatum infamia non sequetur." ■ To contract this infamy, therefore, two things are requisite: i. a public crime, as explained ; 2. juridical conviction thereof, and condemnation. The infamy in the case is not annexed to the juridical proceedings, but to the crime. 2
Art. II. Effects of Infamy of Law or Fact.
1920. Q. What are the effects of infamy, whether of law or of fact ?
A. 1. Both the infamia juris and the infamia facti are a canonical disqualification {inhabilitas) for ecclesiastical offices, dignities, and benefices. The law of the Church says : " Infamibus porta? non pateant dignitatum." 3 Hence persons who are infamous are canonically incapable of being appointed to the above offices. The reason is, that offices and dignities are the reward of merit, and therefore should not be conferred on criminals. If a person, infamous by law, were nevertheless appointed to an ecclesiastical office, the appointment would be ipso jure null and void, at least in foro externo. Nay, those who have contracted the infamia juris are even to be deprived of the offices and benefices which they actually possess;4 a judicial sentence, however, is required for this deprivation. We say, infamia juris ; for those who are under infamia facti cannot indeed be appointed to offices, but they do not lose those which they already hold. 5
1 92 1. — 2. Both those who are infamous by law, and those who arc infamous by fact, are deprived of certain rights and privileges ; that is, they cannot act as judges, advocates,
1 L. 7. fl. de publ. jud. (48. 1). 2 Miinchen, 1. c, vol. ii., p. 123.
3 Reg. 87 in 6°; 1.2, C. de dignit. (12. 1).
4 L. 12, C. de dignit.; cap. 11 de excess. Prael.
5 ReifT. , de Reg. juris, reg. 87, n. 6.
Infamy as a Canonical Punishment*
ass. sors, wihi' rhey become irregular. 1 1 nice
those who arc infamous bj Ian cannot be promoted to 01 - ders, nor exercisi those which the) have already received.1 We say, infamous by law\ i<>i those who are infamous by fad cannot, it is true, be promoted to orders, but the] can exercise those which the} hav< alread} received, althouj they should he suspended from offi< e by the Sir until
they have either been absolved <»i condemned b) a canonical trial. ' From all iliis ii will be seen that infamy is, properly speaking, a canonical punitive penalty, and as such alwa presupposes a grievous crime.
1 Can. final. <.li-a. 51 ; Schmalzg., 1. c a, 173. ■ Strcmlcr, J. c, \>. 45.
CHAPTER VI.
CANONICAL DISABILITY FOR ECCLESIASTICAL OFFICES AND
BENEFICES.
(Inhabilitas.)
Art. I. Character of this Punishment.
1922. Disqualification {inhabilitas) for ecclesiastical offices, dignities and bejiefices, is a canonical punishment by which a person becomes incapable and unfit to be validly appointed to any ecclesiastical office or benefice whatever, in such a manner that his appointment would be null and void ipso jure, and prior to any judicial sentence. l An instance of this canonical disability occurs in the cap. 2, and 1 5 de hceret. in 6° (v. 2), where Popes Alexander IV. and Boniface VIII. enact that heretics, their defenders, favorers, and believers, together with their children, even to the second generation, shall be excluded from all ecclesiastical offices and benefices. It is evident, therefore, that this incapacity is a very severe ecclesiastical punishnient and therefore always presupposes a great crime.
1923. Though often the effect of irregularity, this punish- ment must nevertheless be carefully distinguished from it. Irregularity incapacitates a person directly for the reception and exercise of orders ; disability disqualifies him directly for appointment to ecclesiastical offices, benefices, and dignities. '
1 Reiff., 1. c, 1. 5, t, 37, n. 20. 2 Munchen, 1. c, p. 163.
Canonical Disability fo% Ecclesiastical Offices*
\i;i II.
Effects oj tins Disability*
1934. This punishment disqualifies ;i person radically and absolutely for ecclesiastical offio Still it affects only those offices which a person has not \< 1 acquired. Hena an Ecclesiastic who incurs this punishment cannot, it true, be appointed to any office in future, but he docs not Lose those which he already possesses. Id conclusion, this punishment is frequently the consequence oi otlu r < anonii punishments, such as infamy, deposition, and irregularity. l
1 Stremler, 1. c,; p. 32.
CHAPTER VII.
CANONICAL UNFITNESS FOR ORDERS AND THE ECCLESIASTI- CAL STATE BY REASON OF CRIME.
(Irregularitas ex delicto).
Art. I.
Definition of and Difference between " Inhabilitas M and
Irregularity.
1925. In the preceding article we have explained the pun- ishment of canonical disqualification for ecclesiastical offices and positions. In the present, we shall discuss the canonical disqualifications for orders and the ecclesiastical state. The exalted dignity of the sacerdotal ministry and of the eccle- siastical state demands that all those should be excluded from it, who are in any way either unfit or unworthy, and who are calculated to bring disgrace upon it. Hence the Church, in order to provide for the honor, dignity, and eclat, which should, like a halo, surround the priesthood and render it respected and revered in the eyes of the whole world, has established certain rules, regulations, or qualifications, as a condition sine qua non of the licit admis- sion to the ecclesiastical state, and to the reception of orders and the exercise of those already received.
1926. All those who lack these requirements are said to be irregular {irregu lares), that is, outside or beyond the rule (regula) or conditions laid down by the general law of the Church for admission or membership among her ministers, and in consequence excluded from the list of Ecclesiastics. *
1 Stremler, 1. c, p. 45 ; Munchen, vol. ii., p. 137.
/ ' r Orda tU
\ »<• direct object, then, oi thii canonical incapacitj in intain the reaper I due to the < < < l< ia deal tate. Wi s.iv, ////•-/ 7<</\ for when the can i ol th( disqualify
tio'i hes in tin- i nine ;ind kid life <>f tin person di qualified, the Church mflit is the disqualification also t"i tl><- purpo of punishing the guilty party, and brin him back toa
sense <>f duty. Hence the incapai it \ arising from i rime properly speaking, a vindicator} punishment
1927. ro prevent confusion oi ideas, let us clearly define the meaning and nature ol this unfitness or irregularity
it is commonly called. The unfitness in question is a canonical hindrance or disability which disqualifies a person
to receive orders and to perforin the functions ol the old*
already received. ' Let us explain this definition. We say,
a canonical hindrance; because il is and can be inflicted only by the canon law, that is, by the common or general law of the Church, but not by a judicial sentence. Now the Pope alone or a general council approved by him can make laws for the entire Church. Hence, they alone can establish or impose this incapacity, and that only by an act of legislation, but not by way of a particular sentence. a The other terms of the definition will be set forth below, when we come to the effects of this incapacity.
1928. A person may bring dishonor and opprobrium on the ecclesiastical state, either by reason of natural defects or deformity, bodily or mental, which, though not in any sense culpable, nevertheless inspire horror and disgust, or aver- sion, in others ; or by crime or vicious conduct calculated to bring the sacerdotal state and ministry into disesteem and contempt. Accordingly, canonists divide the disqualifica- tion in question into two kinds : one caused by natural defects ; the other produced by crime. The latter alone, as we have seen, is a punishment ; the former is simply a
1 Reiflf., 1. 5, t. 37, n. 63. * Cap, 18 de sent, excom. in 6C; Schmalzg., 1. 5, t. 37, n. 67.
1 28 Canonical Unfitness for Orders and the
legal prohibition. We shall here confine ourselves chiefly to the incapacity by reason of crime, as we are treating of punishments. We say, cJiicfly; for incidentally we shall also speak of the disqualification which arises from natural defects, since both these incapacities are so closely inter- woven as not to be completely separable.
1929. This canonical unfitness, whether by reason of crime or defect, may be partial or total. It is total when the inca- pacity extends to the reception of any " ordo " whatever, and also to all exercise whatever of the ordincs already received. It is partial when it disqualifies, v. g.> only for the reception of orders, but not for the exercise of those already received. 1 When the disqualification proceeds from crime, it is always perpetual, that is, it can cease only by dispensation. But when it is caused by natural defects, it is temporary, that is, it lapses of itself, as soon as the defect passes away. When a person desires to be relieved of the disqualification by reason of defect, before the defect has really passed away, a dispensation is needed.
Art. II. Effects of this Punishment.
1930. Q. What are the effects produced by the canonical disqualification which springs from crime ?
A. Before answering directly we premise that this unfit- ness never incapacitates for actions which are common to Ecclesiastics and laics, such as receiving the sacraments (except the ordo of course), assisting at divine service, being buried in consecrated ground, or associating with the faithful. The reason is, that it excludes temporarily from the body or membership of Ecclesiastics only, and therefore merely from the privileges of the ecclesiastical state.1
1 Schmalzg., Lc.,n. 70. 2 Schmalzg., 1. c, n. 89.
/;, R a
1931, \\Y n<>\\ ansvi ei direct^ rhc chi< effect Incapai il \ foi ordci s am I i< u a] >j m >int mcnl to eccli 1 il
1 »iii. 1 pi ival i« "i oi eccl< iastical « >ffi< I benefit
which .1 pci n >ii .1I1 cul\ pa it I 1 imc he in< urs 1 h<
11 1 «•:• iii.ii 1 1 \ . We shall briefly explain tsu h ol tl under sepai ate heads.
$$ 1 . Incapacity for ( hra\
[932, Irregularit) disqualifies a person to ^
v the tonsure licitly. Hence it is distinguished from the
inhabilitasx which, .is we have explained, excludes directly
only from ecclesiastical offices* The unfitness in 1 >n,
moreover, disqualifies a person to exercise the functions of
lets already received. For it may be contracted by 0
who has already received orders; and thcn.it it proceeds from crime, it forbids the exercise of any function whatever
of orders;' if from defect, only those functions of ord< which cannot be decorously or properly performed because of the defect.
§ 2. Incapacity to be appointed to Ecclesiastical Offices.
1933. This is th£ second effect, though it is so only indirectly. For, as was seen, irregularity does not not fall directly on ecclesiastical offices, but only on the or do. How- ever, indirectly and consequentially, the unfitness in question, affects also ecclesiastical offices. Thus, by the very fact thnt it forbids or disqualifies a person to receive orders, it also, indirectly and as a necessary result, prohibits the acquiring of or appointment to an office which cannot be exercised without exercising the or do. Hence a person who is irregular cannot be licit ly (it is a probable opinion that he can be validly appointed) appointed to an ecclesias- tical office, benefice, or dignity, - at least if the irregularity
1 Cap. fin. de temp. ord. ; Cap. 21 de accus, 9 Cone Trid..sess. 14, Cap. 7 de Ref.
130 Canonical Unfitness for Orders and the
is total; for such total unfitness thrusts him completely out of the ecclesiastical state. The case, however, is different when it is but partial and is contracted by one already in orders, not by reason of crime, but of defect. ! In this case, the irregular Ecclesiastic can be validly and licitly appointed to an ecclesiastical office, at least when its duties can be decorously discharged, notwithstanding the defect. 2
§ 3. Dis)nissal from Ecclesiastical Offices.
1934. When and in what manner does the unfitness in question entail privation of the offices which a person has obtained before incurring the unfitness ? If the unfitness is caused by defect, v. g., arising from infirmity or accident, the Ecclesiastic thus disabled should not and cannot be deprived of his office or benefice, nor compelled to resign it by his Superior, lest, as Pope Innocent III., writing to the Archbishop of Aries, in 12 10, — Cap. Ex parte 5, (III. 6) — says, affliction be added to affliction. But even where it is the result of crime, it does not ipso facto produce dismissal. The person who is thus irregular (ex delicto) should ask for a dispensation from the unfitness. s Meanwhile he can retain the office and receive its income ; however, he cannot exercise those functions of his office which require the exercise of the or do, but must discharge them through a third party. If he neglects to seek for a dispensation, he can and should be deprived of his office by the ecclesiastical Superior, upon due canonical trial.
1935. We have just said that an irregular Ecclesiastic cannot exercise those functions of his office which require the ordo;A for irregularity contracted by one who already holds an office does not forbid the exercise of those func-
1 Arg cap. 2 de cleric, segr. 2 Schmalzg., 1. c, n. 92.
3 Arg. cap. 5 de cleric, vel monach. ; Cap. 6, 7, de cleric, excom. ministr. ; Cap 10 de excess, prael.
4 Miinchen, 1. c. , vol. ii., p. 138.
/■, al Staii /'] Ri d
tionsol .in i < i lesiastii al <>tii< c 01 ben< fi< < . \\ lm h .u <• mmi .k t» o! the • •/«/.'. I mi i purel) a< ta i >i th<
ad minis! i ai i< >n 01 ol extei rial jui isdi< i u in. ' ( [uenf
h .in Ecclesiastic who is irregular may inflid cen up make appoint ments to eccl< il « >ffi< i ; pari h pi u
(with us, rectors) who are Irregulai maj lawfull} I at
:n. mi and even lawfully permission to others to
administer certain Bacraments, and perform eccl cal
functions.1 From what has been said, it will t> a that, while the canonical unfitness in question sometim comes the occasion of dismissal from office, and causes it indirect ly, yet it dors not lull directly upon ecclesiastical offices 01
benefices.
Art. III.
Causes of this disqualification.
§ I. Criminal causes.
1936. For what causes is this canonical disqualification incurred when it is the result of crime ? The unfitness ex delicto is one of the heaviest vindicatory punishments of the Church. Hence it can be incurred only for crime — and that for a crime which is very serious, external, consummated, and expressly stated in law as having irregularity annexed. Whether occult (not internal), though external, crimes pro- duce irregularity is disputed. According to St. Alphonsus, the truer opinion is that which affirms that they do cause irregularity. 3 We say, and expressly stated i?i law ; for both the irregularity which is caused by crime, and that which proceeds from natural effects, is incurred only in cases clearly and distinctly laid down in the Sacred Canons.
1937. Now what are the crimes for which the law of the Church decrees irregularity? These: 1. Wilful and
1 Miinchen, 1. c, pp. 153, 155. 3 Schmalzg., L c, n. 102. 3 Craiss., n. 1766.
132 Canonical Unfitness for Orders and the
deliberate reiteration of baptism ; * 2. Apostasy from the faith ; ■ 3. Furtive or improper reception of sacred orders; s 4. The exercise of an onto which a person has not yet received, v.g., when a mere deacon says Mass. 4
1938. — 5. The violation of censures; in this case, however, a person incurs the disqualification only when he knowing- !\ . and wilfully, and culpably receives an ordo, or performs a function of an ordo already received, while he is under censure, namely of excommunication, suspension, and inter- dict. 5 We say, an ordo ; for a person who performs an act of jurisdiction while he is under censure does not contract the unfitness. This — the violation of censures — is one of the principal sources of the incapacity in question. Of course, where the censure is null and void, though considered valid in the external forum, its violation does not entail irregularity in the forum of conscience.6 6. Homicide and mutilation, provided the killing or maiming be voluntary and premeditated. 7 Here we observe that this unfitness for crime is always contracted ipso facto, though for the forum externum a declaratory sentence is generally re- quired.
§ 2. Natural causes.
1939. What are the natural defects which produce the canonical unfitness in question ? By reason of natural de- fects, the following persons chiefly are irregular: (a) Those who are insane ; (6) those who are blind, lack the left eye, are dumb, epileptic, lame, leprous, cripples, hunchbacks ; those who have no nose nor ears, and persons of a very small and stunted stature ; (c) those who are illegitimate.
1940. (d) Those who are illiterate. Canonists, however, do not agree as to what degree of illiteracy induces the disa-
1 Tit. de apost. et reit. bapt. (v. 9). a Eod. 3 Tit. de eo qui fuit. (v. 30). 4 Tit. de cler. non ord. ministr. 6 Tit. de cleric, excom. ministr. (v. 27).
• Stremler, p. 49. 7 Tit. de homic. (v. 12); Cone. Trid., sess. 14, C. 7 de Ref
EccUsiastical State 6y l<> / Crin i ;;
hihiv in question. Here wt ma} remark that, in
mi al, i he 1 l< i< l< < .1 kn< »\n I' : i ibed
l>\ i Ik ( )oun< il <»i Trent ia : ' (a) I hos< who arc t<< n first tonsure should know tin- rudiment i oi faith, and l> to read and writ( I those who are to tx promoted to
minoi orders must at least understand tin- Latin lai i, | those win) are to be ordained priests, must l>\ a i areful previous examination have been proved t<> be capable o\ teaching the people those things which ii is ne< \ lor
all to know unto salvation, .is also tit to administer the sacraments. '
[941. Canonists here also call attention to the utility and
necessity Of the Study Ol canon law. The journal tin droit canon., Apr. 1883, page 147, says: " The Church docs not allow Ecclesiastics to be in ignorance of the Sacred Canon-. Thus the canon Nulli 4, Dist. 38, decrees: ' Nulli Sacerdo- tutn liceat ignorare canones.' Again the can. Tgnorantia 1, Dist. 38, enacts: ' Sciant sacerdotes scripturas sacras ct canones* ' But when the Church addresses herself to Bish- ops, continues the above Monthly, she recommends this study to them with a zeal and an earnestness that are equalled only by the unbounded ardor with which she invites them to apply themselves to this study.
1942. Another celebrated canonist writes that at the pres- ent day the knowledge of canon law is more than ever indispensable. For, he continues, it is only by a thorough knowledge of ecclesiastical law, that arbitrary action will be avoided both on the part of the Superior and of the in- ferior. It is only when the inferior as well as the Superior knows how far, where, when, and how he can proceed, that the authority of the one is respected, and the rights of the other are protected. Especially is this knowledge essential
1 S. C. C. Burgi S. Sepulchri 27, Feb. 1875. 8 Cone. Trid., sess. 23, cap. 4. de Ref. 3 lb. cap. 11 de Ret.
4 Cone. Trid., sess. 23, cap. 14 de Ref.
134 Canonical Unfitness for Orders and the
in order that the right steps may be taken in criminal and disciplinary proceedings and investigations. l
Art. IV. Does Ignorance excuse from this Disability ?
1943. Is it necessary, in order to incur the canonical incapacity in question, that a person should have a knowl- edge both of the law forbidding the crime (we speak of irregularitas ex delicto, as the irregidaritas ex defectu is cer- tainly incurred by a person who is ignorant of the law or of the irregularity), and of the canonical disqualification an- nexed to the commission of the crime? For the answer, so far as the knowledge of the law is concerned, we refer to No. 1 7 10, where the principles involved in the question are fully set forth. For the answer, so far as the knowledge of the incapacity is concerned, see No. 1707, where the principle is laid down that ignorance merely of the punishment, when there is question of purely vindicative punishments, does not exempt from them. Now irregularity is a punitive punishment. Hence also it is the common opinion of can- onists that the disqualification in question is contracted by a person who is unaware that it is annexed to the crime he has committed, and only knows that his offence is forbidden by the law of the Church.
1944. We say, common opinion ; for the contrary opinion, which holds that the incapacity is not incurred in the case, is probable according to Schmalzgruber, 2 Palao, Suarez, Sanchez, La Croix, and others. The chief reason upon which it is based is that the disqualification is a most severe punishment, which the delinquent is bound in conscience to execute himself, and before any declaratory sentence. Now it seems equitable that such a severe punishment should
1 Schnlte, K. K. R., vol. ii., p. 113. a L. c, n. 108.
EccUsiastical Stati l>\ Rea i Crin
not be \ta urred, except w h< n the offendei la full) a nt,
not in* • i el \ oi the law, but also oi the punishment
1045, I [ere w c remai k, in ; I bat .ill ii
whci hei they proceed ex < 1 < 1 delu t in< ui red
//>.s tre always /(//«■, nevei (as sententt
Consequently, when .1 pei on commits a < rime which the law punishes with irregularity, he incurs, in faro int< rnot the irregularit} ipsa facto, and without any judicial sentem We say, in faro interna; for in faro externa no person is,
nerally speaking, regarded as irregular, until a declaratory sentence has been given to that effect. In other words, no person is considered irregular in the external forum, until he has been juridically declared irregular. l
Art. V. How this Disability is removed.
1946. O. In how many ways is the unfitness for orders and the ecclesiastical state removed ?
A. In four: 1. The unfitness resulting from a passing defect or deformity eeases of itself, as soon as the defect passes away. Thus, if it proceeds from want of the pre- scribed age for ordination, or of the requisite learning, or from want of good name (provided the want of reputation, that is, infamy, be only facti, not juris; for the infamy of law does not cease, save by dispensation) 2 it disappears of itself as soon as the proper age is reached, or the necessary learning attained, etc.
1947. — 2. Craisson 3 holds that the unfitness which springs from crime and certain disqualifications arising from defects are taken away by baptism. But as Schmalzgruber well remarks, baptism does not, properly speaking, remove any irregularity or incapacity whatever, for the simple reason
1 Stremler, 1. c, p. 46. 3 Can. 7, c. 2, q. 3. 3 Man., n. 1771.
136 Canonical Unfitness for Orders and the
that, prior to being baptized, a person is not subject to the laws of the Church, and therefore cannot contract any dis- qualification. The infamy of fact, even though caused by murder, is the only irregularity blotted out by baptism. ■
1948. — 3. The unfitness arising from illegitimacy is re- moved, though only as to the reception of orders, by solemn profession in a religious order. We say, though only etc. ; as a matter of fact, however, all religious orders have the privilege by which their religious, though illegitimate by birth, can be chosen prelates.
1949 — 4. Finally, the disabilities of which we speak in this article are removed by dispensation or act of clemency of the Superior. Now, what Superior can remove disabilities ? The rule is : " Omnis res, per quascunque causas nascitur, per easdem dissolvitur." 2 Now, only the Superior who is possessed of universal jurisdiction — namely the Pope and general councils — can establish an irregularity, and that only by a general law, not by a special command. Conse- quently the supreme Pontiff alone can remove or dispense from irregularities, whether caused by crime or defect.
1950. Bishops can do so only where this power is dele- gated to them, but not by their own inherent or ordinary authority. The reason is, that these disabilities can be established only by the supreme authority in the Church, as we have seen. But a Bishop cannot relax the law of his Superior — namely of the Pope or general council.
1 95 1. We say, only where this power is delegated to them; now the Council of Trent 3 has authorized Bishops to dis- pense in all cases of irregularities arising from a crime that is secret — except that proceeding from voluntary homicide, and those crimes which have been already carried before the contentious forum. By secret or occult crimes, canon- ists here commonly understand those crimes which, though
1 Schmalzg., 1. c, n. 1 10. 2 Reg. I. de Reg. Jur. (v. 41). J Sess. 24. , c. 6 de Ref.
Ecclesiastical State by Reason oj ( > ime,
known to and provable b) everal witn< i . neverthel have not yd b* i ome notorious, that ii . known toth( tci
I >:i i : oi .1 place, n< >rhood, 01 community, whi< h should
contain at least ten i
[952. The power granted to Bishops, in this matter, by theCounciloi Trent, is possessed also 63 regular prelat ibbots, generals oi orders, and provincials, and oth( baving quasi-episcopal jurisdiction independent^ oi the Bishop. The reason is that the power granted to Bishops in the Cap. 6 de Ref., sess. 24 oi the Council oi Trent Is a fdi'or, and hence should he extended to the prelates just mentioned; for favorsshould be always liberally construed.1 Hut neither Bishops nor the other prelates can remove di bilities arising from defects, except in the case of disability from Illegitimacy and similitudinary bigamy. :'
1953. Our Bishops in the United States (as a rule all Bishops of missionary countries), by particular law, that is, by special Papal indult, have power " Dispensandi in quibuscumque irregularitatibus, exceptis illis, quae vel ex bigamia vera, vel ex homicidio voluntario proveniunt ; et in his etiam duobus casibus, si prascisa necessitas operari- orum ibi fuerit, si tamen quoad homicidium voluntarium, ex hujusmodi dispensations scandalum non oriatur." 4
1 Schmalzg.. 1. c, n. 1 15, 116. 9 lb., n. 121.
3 Grandeclaude, torn, iii., p. 526. 4 Facult. Form. i.t n. 2
SECTION II.
Temporal and Corporal Vindicatory Punishments.
CHAPTER I.
VARIOUS KINDS OF THESE PUNISHMENTS.
1954. Thus far, we have spoken of those vindicatory punishments which are of a spiritual nature. We shall briefly describe those of a temporal or corporal character. Of these, not a small number, that were formerly in vogue, have now gone completely out of use. Among these may be classed corporal punishments, i. e., whipping and flog- ging, imprisonment, and exile in the strict sense of the term. ' The chief punitive punishments of a temporal character which are still in use are pecuniary fines, assign- ment to a monastery or house of retreat, and exile in a broad sense or mild form.
Art. I.
Pecuniary Fines.
1955. By a pecuniary fine {mulcta pecuniaria) is here meant the payment of a sum of money which is imposed by the ecclesiastical judge, in foro externo, upon a person, in punishment of a crime committed by him.2 From this definition it will be readily seen that we do not speak here of the payment of money imposed as a penance by the confessor, in the tribunal of penance, but only of those fines which are inflicted by the ecclesiastical judge, as such, and consequently only in foro externo and as canonical punitive punishments.
' Phillips, Lehrb., p. 396. 9 Benedict XIV, de Syn., 1. 10., c. 9., n.3.
/ a Kinds oj Ttmporal Punishn
'fi ( )i t lie s.u i « 1 1 ( Jam 'ii i ii. i' I' 'I prioi to i be < !oun< il
oi Trent, som< enjoin, others forbid pecuniar) fines in the
cc( Icj i.i 1 1« al i« »i urn. I »ik< h< pi a< i u i in t he ( !hui « It,
prioi '«' H>i' Council ol Trent, was not uniform on this
head, orae Bishops being in favoi of, others opposed to
the principle ol imposing inns in punishment ol crimi
However, the Council oi Trent put an end to all una
taint) in this matter. Foi in Ref.
it expressh gives Bishops power to impose hues in certain
cast's. Here are the words oi the Council: "Liceal i
... * (episcopis) si expedire videbitur, in cai .ad forum
ecclesiasticum quomodo libet pertinentibus, contra qu(
dam, etiam laicos, per mulct as pecuniar ias^ quae locis piis
ibi existentibus, eo ipso quod exactae fuerint, assignentur
. . . procedere et causas definire."
1037. This Council itself imposed pecuniary fines as punishments For crime both upon Bishops and inferior Ecclesiastics. Thus it decrees that Bishops who arc absent from their see, without legitimate reason, shall incur the loss ol a fourth part of one year's income ; ' that concubi- narv Ecclesiastics shall first be ipso facto deprived of the third part of the fruits, rents, and proceeds of all their benefices whatsoever, and finallv, if they remain incorri- gible, of the benefices themselves.2
1958. In what manner are these fines to be imposed? Fagnani remarks correctly that they can be inflicted only by judicial sentence pronounced after due trial of the case, but not extrajudicially, i.e., not without trial. This applies to fines involving a considerable amount of money, but not to small fines.
1959. When can fines be imposed by the ecclesiastical judge ? 1. As a matter of course, in all cases where the law of the Church authorizes it, v. g., in the case of concubinary
1 Cone. Trid., sess. 6, c. I. de Ret. * lb., sess. 25, c. 14 de Ref.; cf. Bened. XIV., 1. c, c. 9, n. 6.
140 Various Kinds of Temporal Punishments.
Ecclesiastics, as we have seen. 2. The Bishop can, in making diocesan statutes, annex a pecuniary tine, as an ordinary punishment to their violation; he can also, as judge, inflict hues in eases where the law of the Church does not pre- scribe any particular or ordinary punishment, but leaves the penalty to the discretion of the judge. 1 But where the law of the Church prescribes a canonical punishment for a crime, the ecclesiastical judge is not allowed to commute it into a pecuniary fine. Such a commutation would be regarded as immunity granted for money. 2
i960. — 3. Finally, in cases where the offence is not so great as to deserve spiritual punishments, such as censures, a pecuniary fine may be imposed. The Council of Trent8 enacts that censures should not be inflicted rashly or for slight causes, lest they become more despised than feared, and produce ruin rather than safety. Hence it enjoins on all ecclesiastical judges, of whatsoever dignity they may be, that in all causes, criminal and civil, both during the proceedings or trial and in giving judgment, they abstain from ecclesiastical censures, as often as pecuniary fines can be imposed and collected; and only when such fines cannot easily be imposed shall it be lawful for ecclesiastical judges to employ censures, provided, however, that the char- acter of the crime so require, and that there be contumacy, and upon due trial. 4
1961. What is to be especially avoided when these fines are imposed, is the desire of gain or making money by this means. Abuses of this kind seem to have occurred not unfrequently in former times. In order to cut off all temptation of perverting the ends of justice and of extort- ing money, the Church has enacted that the Bishop or ecclesiastical judge can never appropriate these fines to his own uses ; nor can he employ them for the purpose of
1 Cone. Tri'l., sess. 25, c. 3 de Ref. 9 Arg. cap. Licet 3, de poenis (v. 37.)
» Sess. 25, c. 3 de Ref. * Stremler, p. 61 ; Craiss., n. 6355.
/ !>■/<>!( s A inds of 1 ■ in
iu\ in:-, i ii< .ii.u y oi in \ i« .11 ( •« n< i .ii. 01 "i the <»iii< iali oi his chancer) oi tribunal; nay, he cannot &ppl) the least portion oi them even i<> the fabric oi tin Cathedral . >t i Ik repairs >»i i he I lishi >\ •' hou i ; noi can hi all* an} part oi them to go to the treasure] of these funds ; but he must applj them exclusivel) to pious and charitable purposes, that is, to the poor, to hospitals, orphan as} lun and the like.1 These fines, moreov* r, should be deposited id the hands oi a special treasurer, from whose accoui it shall clearly appear that the) have all been applied to charitable uses.
1962. Custom in th* United States, Direct pecuniary fines are not in use* with us. It is, however, the opinion oi not a few of our ablest divines, that moderate pecuniary fin might sometimes be advantageously imposed instead of other canonical punishments, such as censures. In fact, it is
apparent that, where a fine will obtain the desired result, recourse to censures is not laudable.
Art. II. Ecclesiastical Imprisonment,
1963. In former times there were ecclesiastical prisons, properly speaking, and the law of the Church authorized ecclesiastical judges to decree imprisonment, against Ec- clesiastics and laics, for grave crimes, proven juridically, i.e., bv a formal trial. 3 At the present day, imprisonment proper is no longer, at least generallv speaking, inflicted by ecclesiastical judges. Ecclesiastics who have been proved guilty of crime, instead of being imprisoned by the Bishop, are, also in the United States, sometimes sent to religious houses or other places of retreat, to do penance. *
1 Cone. Trid., 1. c. 2 Bened. XIV., 1. c, 1. 10. C. 10. n. 5.
3 Arg. cap. 15, de sent, excom. in 6° (v. n). * Cf. Stremler, p. 63.
14- I 'a r ions Kinds of Temporal Punishments.
1964. Q. What is the legislation of the Third Plenary Council of Baltimore on this head ?
A. In harmony with the above teaching, the Council enacts : " Quo efficacius aberrantes in semitam rectam re-
1 —
ducantur enixe commendamur, ex S. C. de Prop. Fide consulto, ut domus quasdam a rcligiosis viris regendae instituantur, ubi sacerdotes lapsi, qui spem fundatam con- versionis exhibent, pro tempore ab episcopo statuendo, vitam degant." (Cone. PL Bait. III., No. yj).
Art. III. Exile in a Mild Form.
1965. Exile, in the ecclesiastical sense of the term, consists in this, that an Ecclesiastic or laic who is guilty of crime is expelled from the diocese, and forbidden to return. Some- times a person is banished merely from a particular city or locality, but not .from the entire diocese. The Bishop or ecclesiastical judge may inflict this punishment, in order to cause scandals to cease, to oblige delinquents to break off their evil habits, to remove them from the occasion of sin, and, in general, to prevent a number of crimes, especially against morality. This punishment is still inflicted at times, though much more rarely than was the case formerly.
1 Stremler, p. 63.
TART IV.
REPRESSIVE PUNISHMENTS WHICH ARE REFORMA TI\
(Poena medicinalesy censura.)
1966. Having spoken oi the repressive punishments which are punitive, it now remains to treat briefly oi the
rrectumal or, as they are commonly railed, censures. We
shall first explain those properties which are common to all censures; next the peculiar characteristics of each censure in particular.
SECTION I. Reformative Punishments, in General.
1967. Under this heading- we shall discuss, in separate articles, the nature and the various kinds of the punish- ments in question ; by whom and upon whom, for what cause, and in what manner they are inflicted; what reasons exempt from them ; when and how a person who has in- curred them is released from them.
CHAPTER I.
NATURE OF THESE PUNISHMENTS.
1968. A reformative punishment (or censure, as it is commonly styled) is a spiritual and medicinal punishment, by which a person who is baptized, delinquent, and incor- rigible, is deprived of the use of certain spiritual goods or benefits, by ecclesiastical authority, until he recedes from
1-4-4 Nature of Reform Punishments.
his incorrigibleness. i Let us briefly explain this definition. We say, a punishment ; for a censure is a privation of spirit- ual benefits, and therefore inflicts pain and disgrace. Hence, like every punishment, it presupposes a crime; for, as we have seen, there can be no punishment, where there is no guilt.
1969. We say, secondly, medicinal ; because, as has been shown, they are primarily and directly administered for the purpose of curing a person who is morally infirm, of bringing him back to a sense of duty, and causing him to break off his evil ways. They are spiritual medicines rather than punisJunents proper. Now medicines are given a sick person only as long as he is sick, and discontinued as soon as he is cured or on the fair way to recovery. 2 In like manner, these punishments, when inflicted upon a delin- quent, 3 should be withdrawn as soon as he amends and becomes repentant.4 Consequently, they should not be inflicted for a determinate period, v.g., for three months, since it is always understood, by virtue of the law of the Church, that they can last only as long as the obstinacy in sin continues, and should be withdrawn as soon as the amendment has taken place. 5
1970. We say, moreover, incorrigible ; for it is, as was al- ready shown, the peculiar feature of these punishments that they not only presuppose a crime, but also incorrigi- bility or obstinate persistence in crime. Hence a person, in order to become liable to these punishments, must be not only guilty of crime, but must, moreover, persist in his crim- inal course, after having been duly warned and admonished.
1 97 1. This warning {monitio canonica), which must precede the punishment, can emanate either from the law itself or from the ecclesiastical judge or Superior. Hence a person
1 Schmalzg., 1. 5, t. 39, n. r, Bened. XIV., de Syn., 1. 10, C. 1, n. 1.
8 Soglia, vol. ii., p. 561. 8 Stremkr. 1. c, p. 173.
4 Supra, n. 1796. 5 Arg. cap. 1. de sent, excom. in 6°. (v. II).
I
Naturi oj Reform Punishments* 145
m..\ become contumacious in two wa) i fii it, when he .iocs not heed 1 he w ai ning 1 >i 1 ia 1 i< al Supei ioi
addressed to him individually : m 1 < 1 personally . »nd,
when he violates .1 la\i oi the Chun h, with the lull know] edge of the la\i and of th< censure annexed. For, in this second case the law itseli is a standing warning to all. Here it should be observed that these punishments should be imposed only on persons who, though incorrigibli vet
ve hopes t>! amendment, but not upon p who are so
absolutel) incorrigible as to preclude all hope oi their re pentance. For medicines are not administered to patients who are beyond .ill hope of recovery.
1972. We say, spiritual goods; for, although the punish- ments in question sometimes take away temporal goods, happens, v.g.% in suspensions beneficio, which strips a person of the salary or income of his office or benefice — yet they do so only secondarily and indirectly. Primarily and di- rectly, they extend only to spiritual benefits. Nor do they dispossess a person of all, but merely of certain spiritual privileges, namely of those wliicJi depend on the Church, v.g., the sacraments, public prayers, sacred functions. Hence they do not of themselves deprive a person of sanctifying grace. Thus it can happen that a person may be under censure, and yet be in the state of grace, v.g., where the censure is imposed upon a person who is innocent.
CHAPTER II.
VARIOUS KINDS OF REFORM PUNISHMENTS.
1973. There are three kinds of reformative punishments, namely excommunication, suspension, and interdict. 1 Ob- serve that excommunication is the severest of all correctional punishments, since it dispossesses a person, for the time being, of all spiritual benefits depending on the Church, and therefore contains or combines in itself the effects of both the other censures. Hence, in the decretals, the censures of suspension and interdict are grouped and discussed under the one title de sententia excommnnicationis.
Art. I. Reformative Punishments " a jure " and " ab homine."
1974. Reform punishments are inflicted in two ways: (a) a jure, that is, by law, and (b) ab homine, that is by the proper Superior. These are technical terms. Let us explain them. A reformative punishment termed a jure is that which the law itself attaches to a crime. We take the word law here in its proper sense, that is as an enactment which has of itself a permanent and perpetual binding force, as contradistinguished from a mere command or precept, which is essentially of a temporary obligation and lapses with the death of the Superior by whom it was given. 2 Hence by punishments a jure we mean not only those which are contained in the common law of the Church, namely the
1 Cap. Quaerenti, 20. de v. s. (v. 40.) 2 Konings, n. 98, 40.
Variou K i f fl ' rm Punishments* 147
Sat red ( lanons, and the -l of Po 1 1 . umenit al
O >un< ils, but al ' » thosi \ hi< li ai « ■ ■ d bj Pleiuu j ■ t r i< I
Proi incial ( )oun< ils, and by ej tut made in
dio( esan \ n< >ds. ' I 'h< rea 1 m 1 1 hat t he latter d< 1 no less than the former, are real and true laws, though binding onlj in particular localities. F01 their bindii force is not transitoi \ . and does not with the death
the Superior by whom they were enacted, but is oi itself perpetual, and they remain in force till lawfully ab ted.
[975. On the other hand, a 1 tional punishments
homine is that which is annexed by the proper Superior (ab homing) v.g,, by the Bishop, to the violation of a precept or command, as contradistinguished from a law. Reformative punishments ab homine, like precepts, have no perpetual binding force. They cease to be of force, whenever the ju- risdiction of the Bishop by whom they were made e\pir< that is. as soon as the Bishop dies, is removed, transferred, or resigns, though, if once incurred, they cease only by absolution. They are called forth only on occasion of peculiar and passing circumstances, and are intended to last as long as these peculiar circumstances exist. ■
1976. Now reformatory punishments which are ab homine may be inflicted in two ways : (a) by way of a general precept, order, or command — per scntcntiam generalem, v. g., when the Bishop, by reason of a certain crime which is very prevalent in his diocese, issues a circular letter, man- date or precept, imposing censure on any one who shall commit the offence; (J?) by way of a particular command or injunction — per scntentiam special cm — laid upon one or more determinate persons, v. g.f if the Bishop puts a person on trial for a crime, and upon conviction pronounces sentence inflicting censure upon him ; or also when he threatens a certain person or persons with censure, in case they persist
1 lb., n. 1661, 2°. 2 Kober, der Kirchenbann, p. 51.
14^ Various Kinds of Reform Punishments.
in their evil ways. The general precept, therefore, is ad- dressed indiscriminately to all the subjects of the Bishop; the particular, to certain individuals who are specified.1 As will be seen, the reform punishments a jure bear a considerable resemblance to those ab homine per sententiam ncralon. Both extend, not to a particular individual, but to all subjects in general ; both refer equally to future crimes committed after the enactment of the law or precept. 2
Art. II. Reform PunisJiments " ferendee " and " latce sententice."
1977. For a correct understanding of censures it is of great importance to distinguish between correctional pun- ishments which are latce se tit entice and those which are fe- rendee sent entice. Censures latce sententice are those which are incurred in for 0 inter no, by the very fact of the commission of the crime {ipso facto), that is, the very moment the crime is committed, and without any intervention whatever of the ecclesiastical Superior or judge, and therefore without any sentence, even declaratory.
1978. Correctional punishments ferendee sententice — called also threatened censures — are those which are incurred only by a formal and special condemnatory sentence of the proper Superior, pronounced after due previous warning and the prescribed trial.
Now, by what marks can it be known whether these punishments are ferendee or latce sententice ? As a general rule, it may be said they are latce sententice, when their wording is such as to show clearly that the law-giver wishes them to be incurred the very moment the crime is com- mitted. * Such is the case (a) with phrases of the past or present tense, v. g., excommunicamus ; excommunicatus est or
1 G«nr— Bailer., n. 933 adn. b. - Kober, 1. c, p. 50. ' Kober, 1. c, p. 61.
/ \i , i •/ A . v m /'. . Hi nt\. 1 4g
/>///.■ txcoMmun funtur, volutnm ant fudtmui esse
ixcommunicatum^ suspensum% qut in im. {f>) Where tin
phi '/< tf/M IMA nti<i
Where the langua imperative, Urtin ixcom*
municationcM, maneat suspem
i., ■. i riic\ arc / ■• *da sententi a rule, when the
words, in which t lu- \ are couched, refer to the future, and therefore merel} threaten them. Such phr
€ommunicabiturt suspendetur; or if they require the into
win ion oi a third person, .'•;:•. txcommunicetur per episcopum. [980. It has been objected by some canonists thai punishments &/o? sentential are opposed to the very law of nature. For it is repugnant, they say, to the natural feelings, thai a person should be himself th cutor of the punishments to which he has rendered himself liable. But it must be remembered that censures lata sententue do not. inflict any positive, corporal, or other external pain, but merely negative and spiritual; they simply deprive a person of certain spiritual benefits; the person incurring them is passive; the censure executes itself.1 Moreov* it should be borne in mind that correctional punishments lata sentential produce their effects ipso facto, i. c., without any judicial sentence, only in foro interna; for in foro cx- terno they do so only upon a declaratory sentence of the proper ecclesiastical judge, which must be preceded by a trial. YA e say, declaratory sentence, for no condemnatory sentence is needed, since the law itself, which inflicts the censure, condemns the offender.
Art. III. General Remarks. 198 1. As we have seen, correctional punishments, should
1 Kober, 1. c, p. 55.
150 Various Kinds of Reform Punishments.
not be imposed for any determinate time. For, as was shown, they are medicinal in their character, and should therefore last only as long as the spiritual sickness continues, that is, until the obstinate offender returns to better ways. They are consequently, by their very nature, indeterminate as to time. Their duration is commensurate with, and depends upon, the continuance of the offender in his incorrigibility. As soon as the latter ceases, the former should be withdrawn. Hence, in the definition of these punishments, we say that by them a person is deprived of certain spiritual benefits, until he recedes from his contumacy.
1982. We said above, when inflicted as suck ; for correc- tional punishments — namely suspension and interdict, but not excommunication — may sometimes be imposed, not as correctional, but also as vindicatory punishments — per modum poena vindicative?. x In the latter case, they follow the rules of other punitive punishments, and may be inflicted for a definite period, v. g., for three months, and, absolutely speaking, without the previous canonical admonition, though not without a previous citation and trial.
1983. Again, we remark, when a censure is invalid, it takes no effect whatever in conscience — inforo inter no — and need therefore n-ot be observed in this forum, though sometimes it has to be conformed to outzvardly or in foro cxtcrno, as we shall see, for the sake of shielding the authority of the Superior. Finally, we observe that sus- pension and interdict only can be inflicted also as vindicative punishments ; excommunication never.
1 Cap. 7 de elect; Cap. 48 (v. 39); Schmalzg., 1. 5, t. 39, n. 30; Reiff., I.5, t. 39, b. 28.
CH M'ThK in. sViiA I ii i -i >\ I CAN INFLICT I HEM ?
198^. Two questions arc here proposed: first, who
•mpr.tent, /. /., have power, t<> inflict correctional punish- ments; next, what conditions are requisite, in order that those who have this power, ma) ex< it validly and
licitly.1 In regard to the competen< \ the question Is not ■ Mas tbe Church the power to punish? For ii has been already fully shown that she has. The question therefo is: Who are the organs, or ministers, or officials through whom the- Church exercises this power- To inflict the punishments in question is an exercise of power or jurisdic- tion, not in the internal /brum, or in the forum of conscience, hut in the external or social forum of the Church. It is an exercise of external jurisdiction, of the power to govern and to rule, which the Church possesses as an external and perfect society.
1985. Now this power is twofold, as was seen, ordinary and delegated, according as a person possesses it by reason of his office, or only by authorization from one having ordinary jurisdiction. Hence all those, and only those, who are vested with jurisdiction in the external forum of the Church, whether ordinary or delegated, can inflict correctional punishments or censures.
We shall treat under separate heads, 1. of those who have ordinary power ; 2. of those who are vested with delegated jurisdiction.
1 Cf. Munchen, 1. c, vol. i., p. 33.
15- What Persons can Inflict Tkemt
Art. I. Who are vested with " Ordinary " Power t
1986. 0. What persons have ordinary jurisdiction or power to inflict correctional punishments?
A, 1. The Pope has ordinary jurisdiction, inforo externo, all over the world. Hence he can inflict these punishments upon all the faithful, and also upon all Ecclesiastics, from the highest to the lowest — from the cardinal to the cleric in minor orders. (Ecumenical Councils have the same power. 2. The Sacred Congregations of Cardinals, being the organs of the Pope and forming one and the same tribunal with him, * can inflict these punishments all over the world, in matters coming within their respective spheres. * 3. Legates of the Holy See can do so, in their territory, with the restrictions, however, imposed on them by the Council of Trent, as explained above. 3
1987. — 4. Bishops have ordinary jurisdiction in their diocese, and therefore can impose these punishments upon all their subjects, 4 and that as soon as they have been appointed or confirmed by the Holy See, even though they have not yet received consecration. For to impose censures is an act of jurisdiction, not of order.
1988. — 5. Archbishops or Metropolitans have a twofold ordinary jurisdiction in foro cxterno ; one over their own diocese ; the other over the dioceses of their province. 5 In their own diocese, their power in the matter of censures is the same as that of Bishops described. So far as concerns the dioceses of their province, the jurisdiction of Metropoli- tans extends, as was shown, c (a) over the suffragan Bishops, (b) the subjects of these suffragans. Prior to the Council of Trent, 7 Metropolitans had power to excommunicate,
1 Supra, n. 514. 2 Stremler, p. 181. 3 Supra, n. 521. (30)
4 Supra, n. 897. 5 Supra, n. 530, 531. c Supra, n. 529. 7 Supra, n. 530,,
.
What Pi can ht/lut Iheni/ 153
•*6ptnd, 01 interdict the Bishops oi theii province.1 Ai present, however, according to thi rridentin< enactment, tins powei is no longci vested in i In in. so fai .1 the suffragan Bishops them lv< are concerned ; though il is still i". I h\ them in regard i<> the Vu ai ( ii n< ral and
o ffi cials oi the su ffragan
[989. In what cases can the Metropolitan, at present, inflict coi rectional punishments on the VU ai I «■ neral and officials oi his suffragans?4 1. In all 1 officials violate any righl oi the Metropolitan, . .,., where ihc\ place obstacles in the way oi appeals to the Metropoli- tans, or disobey injunctions or admonitions oi the latter, made in the exercise oi their metropolitical authority;1 2. in all matters where the Metropolitan is obliged exercise a supervisor} authority, v. g^ when the Vicar- General does not respect the rights of the Holy See, or continues to exercise jurisdiction even alter his Bishop has been excommunicated. '"' 3. Upon the subjects of their suffragans, the Metropolitan can inflict these punishments only on appeal and during visitation, * since only in these cases does he possess jurisdiction over them. 8
1990. The Vicar-General, being the representative of the Bishop, also in contentious matters, and forming morally one and the same person and tribunal with him, has, indeed, the power to inflict these punishments, 9 though he cannot exercise it unless he has a special commission from his Bishop to that effect. 10 The Vicar-General of the Metropoli- tan has, like the Metropolitan himself, so far as concerns
1 Cap. 52 de sent, excom. (v. 39 1 ; Cap. 1, de off. ord. in 6° (i. 16.)
9 Cone. Trid., sess. 13, c. 8; sess. 24. c. 5 de Ref.
3 Cap. 1, de off. vie. in 6° (i. 13.) 4 Cf. supra, n. 630.
Glossa, in cap. I cit. v. rationabili. 6 Kober, der Kirchenbann, p. 71.
7 Cap. 7, de sent, excom. in 6C (v. 11.) 8 Supra, n. 531.
9 Cap. 3 de appell. in 6° (ii. 15.)
,0 Cap. 2 de off. vie. in 6° (i. 13). Kober, 1. c, p. 74.
154 What Persons can Inflict Them f
the subjects ot the suffragans, the right to impose the correctional punishments in question on them only where an appeal is made to him.1 7. Vicars-Capitular (with us administrators, sede vacante) have, generally speaking, the same power as Bishops, in regard to inflicting these punishments. 2
1991. — 7. Both by the common law of the Church 3 and the special rules and constitutions of religious orders, as approved by the Holy See, these punishments (that is censures) can be inflicted upon their religious subjects, not only by the general and provincial Superiors, such as abbots, generals, and provincials, but also by local Super- iors, as priors, Rectors, or guardians ; by the general chapters, for the whole order ; by the provincial chapters of some orders, for the province. 4
1992. — 8. Furthermore, national and provincial Councils can enact or impose censures for the whole nation or province. 9. Moreover, some other persons, v. g., rural deans, in some places, though not in the United States, have the power in question, by virtue of privilege, custom, or rather prescription. 5 For it is certain that persons who have no power whatever by virtue of their office, 6 or by delegation, to impose correctional punishments, may acquire this power by prescription. 7 10. To all the above must be added those who, by common error, are considered as Superiors by a presumptive title. 11. Parish Priests have no longer ordinary power to inflict censures, as by custom the power granted them by the common law of the Church, in this matter, has been abrogated, and their power reduced to the forum internum. 8 Finally we observe that no- body except the Pope can introduce a new kind of censure ;
1 Kober, 1. c, p. 75. a Supra, n. 637.
3 Cap. 10 de major, et ob. (i. 33) ; Cap. 8. de statu mon. (iii. 35.) « Kober, 1. c, p. 78. 6 Cf. Supra, n. 85.
• Kober, 1. c., p. 77. 7 Cap. 18 de praescr. (ii. 26.) 8 Craiss., n. 6376.
// }icl Tk i
inferioi Supcrio merel) inflict thos< centu hich
.11 e ah ead \ pi < >pci i\ establishci I.
Art. ii. Who are vested with "delegated" Power t
[993, < }. What persons have d< ted jurisdiction to Inflict 1 he punishments in quest i< >n ?
A. All those to whom this powei is given by those who are vested with ordinary jurisdiction, namely l>\ the per- sons enumerated under the previous question. Bishops and others vested with ordinary jurisdiction often find it difficult, nay impossible, to take cognizance personally of all causes falling under their jurisdiction, and oi inflicting personally the proper correctional punishments. Hence
the} ran and do authorize others to act lor them, and to inflict punishments in their stead. They are, speaking in general, free to select as their delegates lor the exercise of this power any worthy and competent person whatever,
except a woman or a layman. l
1994. Hence also the Instructions Sacra Hcec of June ii, [880, and Cum Magnopere^oi 1884, enact in Article XII.: 11 Compilatio processus committi potest probo ac perito viro ecclesiastico, cui assistat actuarius." The Instruction Caustc Matrimoniales of 1884 likewise decrees: " Munus moderators actorum Episcopus vel ipse sibi assumet, vel suum Vicarium generalem, aut alium probum et expertum virum e clero ad illud delegabit." 2
1995. Here it may be asked, whether the Pope can, by virtue of the fulness of his power, authorize a woman to exercise this power ? There are two opinions. The affirm- ative is maintained by Schmalzgruber, on the ground that the prohibition to delegate women is merely juris ecclesi-
1 Supra, vol. ii., n. 718. 3 Instr. S. C. de Prop. Fide, Causes matrimoniales, § 6.
156 What Persons can Inflict Them?
astici, not juris divini ; others, with St. Alphonsus, hold the opposite opinion as more probable, chiefly because, as they say, women are by divine law incapacitated for this delegation, and the Pontiff cannot dispense from a divine law. Those who teach the affirmative point, in confirmation of their view, to the Cap. Dilecta, dc majorit. et ob. (I. 33), where it is stated that an abbess imposed suspension ab officio et beneficio upon certain Ecclesiastics subject to her, which action was sustained by the Pope, to whom the matter had been referred. But those Canonists — and they form the great majority — who hold the negative, say with the Glossa ' that the suspension in the case was not a suspen- sion proper, or a censure whose violation would have pro- duced irregularity, but merely a command, on the part of the abbess, forbidding those Ecclesiastics to say mass, until they had corrected themselves, and withdrawing meanwhile their salary. In fact, the above decretal clearly states that the abbess could inflict no excommunication, and consequently, by implication, no other censure. The Glossa 2 also says that women are incapable of exercising jurisdiction proper.
1996. We also say above, except a layman. The Pope (not an inferior prelate) can, however, delegate this power to a layman. 3 As a person who has the first tonsure is a cleric and not a layman, he may receive this delegation, though it is more becoming that only priests or persons in sacred orders be authorized to impose these punishments. 4
1997. Those who exercise this power of inflicting reforma- tive punishments by delegation, that is, by authorization from the judex ordinarius, exercise this jurisdiction only in the name and by the order or authority of the latter. 6 From this it follows that their power lapses as soon as it is properly and lawfully revoked by the principal or Superior
1 In h. c. v. Jurisdictioni. ■ lb. 3 Cap. 2dejudic. (II. I.)
« Kober, 1. c, p. 84. 6 lb.
What /' >i iujli<t Ihtni.'
delegating, ' and also when the lattci himsell loses jurisdi* tion. u Ik i hei bj deal h, i < m( >val, I laf ion,
suspension <»i excommunication, foi il is plain thai the
cut < >i d< l( iiiik >i ( < mi inue i< » .!< i for and in t he
name ol a principal who is himseii no I capable ol
c\(i cising i he pow ei in quest i< >n.
[998. However, the agent or delegate in the 1 11ns
jurisdiction (a) until he is property notified of th th,
removal, transfer, resignation, etc., ol the principal ; md also when the case or matter is no longer res Integra \ v. when he has alread) cited the parties, ; in which latter 1 he can finish the case which he has ahead}' begun, even
though he has become aware of the fact that his principal has lost jurisdiction.
[999. As has been seen, the rule is that delegates cannot
in turn authorize Others to act for them. We saw the rule is ; lor. as we have also shown,4 Papal Delegal n generally
appoint others in their stead, to take cognizance of causes and inflict the punishments in question.6
Art III.
Conditions for the Exercise of this Power.
2000. We come now to the second question, namely, what are the requisite conditions in order that the above persons, who have the power, ordinary or delegated, to inflict refor- mative punishments, may also validly and lawfully exercise this power? 1. There must be no canonical obstacle or impediment in the way. Hence a Bishop who is excom- municated or suspended as vitandus, cannot, even validly, inflict these punishments. 6 Nay, according to some, this holds also when he is notoriously under censure although
1 Our Counter-Points, n. 37. sq. : Cap. 20 de off. jud. del. I. 29.)
3 Supra, vol. i., n. 229. * Supra, vol. i.. n. 228.
6 Cap. 3. de off. jud. del. (I. 29.) 6 Cap. Excepiionem, de except.
i 58 // hat Persons can Inflict Them ?
he is not denuntiatus, ' for the notoriety in the case is placed on the same footing with the formal publication of the censure. If, however, the suspension or excommunication which he has contracted is occult, he can impose the punishments under discussion validly, indeed, though not licitlv. The Vicar-General of such Bishop incurs the same disability, though not the censure; for the Vicar-General forms one and the same person, morally, with the Bishop.2
2001. — 2. Again, the Superior shall, as a rule, be in his own diocese or territory, and that on pain of nullity of the punishment, when he inflicts it. We say, as a rule ; 3 for the exceptions, sec supra, No. 1721.
2002. — 3. He shall act with freedom of will and not from compulsion. According to the more common opinion, the punishment inflicted by a Superior, when under grave fear, is valid, though illicit. For such fear does not, generally speaking, destroy the free will of the Superior. But the absolution from the censure, extorted unjustly from the Superior, by violence or fear, as by threats and menaces, is null and void. 4
2003. — 4. In like manner, he shall not proceed from personal motives, that is, from hatred, dislike, or revenge. Hence no one can or should, as a rule, inflict correctional punish- ments (or punishments of any kind) in his own cause, that is, for personal injuries. For both natural and positive law dictate that no one shall be judge in his own cause, or at the same time judge and accuser. " Nullus unquam," says the law of the Church, " praesumat accusator simul esse et judex vel testis'."5 The reason is that a judge or Superior inflicting punishment should be wholly free from personal bias or feeling, and act solely from a sense and love of justice. Now, considering the frailty of human nature, it
1 Stremler, 1. c, p. 182. 2 Cap. I. de off. vie, in 6°.
3 Can. episcopi 9, q. 2 ; Supra, n. 634, 635. 4 Cap. unic. de his qua: metu, in 6C (I. 20.) 6 Can. 1., c. 4, q. 4.
What /' >>>is can Inflict I lion? I g
is imp. tuil ile to expect thai a person who ia directl) con ( ri tied '>i into rested in a matt 1 , will • >< 1 writh pei f< 1 I impai tialit} . ' I lem e, too, th( I w oi the < Ihun h prei un that a Superioi who imposes the punishments in question
u»i pei son; tl injuries acts from motives oi hatred and
1 c\ 1 .ind is \ ri \ 1 epi « li< n ibl<
-|. r his principle is fully borne out and illustrated bj tin- Sacred Canons. A certain Bishop Januarius had excommunicated ;> person named Isidore for . xl in*
furies, namely, for having been contumeliousl} treated or insulted h\ Isidore. Tope Gregor} the Great, to whom the matter was referred, reprimanded the Bishop, in the severest terms, for having thus avenged a personal insult. The Tope, moreover, threatened to punish him if 1 e should ever presume to do so again. Here is the stinging reproach of the Pontiff to Bishop Januarius : " Nihil te ostendis dc coelestibus cogitare, sed terrenam te conversa- tionem habere significas; dum pro vindicta propria injuria {quod sacris regulis prohibetur) maledictionem anathematis invexisti. Unde de castero oinninoesto circumspcctus atque soliicitus, et talia cuiquam pro defensione propria' injuria; tmv inferre denuo non praesumas. Nam si tale aliquid feceris, in te scias postea vindicandum." St. Cyprian writes similarly that, for injuries inflicted upon his own person, he would never impose any punishment. His words are : " Contumeliam episcopatus nostri dissimulare et ferre possum, sicut et dissimulavi semper et pertuli." 4
2005. However, what has been said has reference only to purely personal injuries, for the case is different when there is question of the rights of the Church. When these are violently attacked and their existence threatened, the respective Prelate is at all times authorized to inflict the
1 Cf. Konings, n. 1662. - Schmalzg., 1. 5, t. 39. n. 25.
8 Can. inter querelas 27, c. 23, q. 4.
4 Epist. 9 ad clerum ; Cf. Kober, 1. c, p. 87.
i6o
W'Jiat Persons can Inflict TJiem?
punishments in question upon the unjust assailant, since here there is question, not of rights that concern him omalfy, but of rights of his See which he is bound to preserve and defend, by virtue of his office.1 For further information on this head we refer to what we have said above, No. 721. Besides conforming to the conditions enumerated, the ecclesiastical Superior, when about to inflict reform punishments, is obliged also to observe certain formalities, such as giving the delinquent due warning and a fair trial. But these formalities will be discussed in a separate article, later on.
1 Cap. 6, de sent, excom. in 6° (v. 11) ; Bened. XIV., de syn. 1. 9., c. 9, n. 12.
CHAP! IK IV.
UPON WHOM CAN CORRECTIONA1 PUNISHW i i
INFLK rED?
Art, l.
Adult Members of the Church.
2006. No person can become liable to the punishment! ol the Church, correctional or punitive, unless he is a member
of the Church by baptism. For infidels that LS, all those- who
are unbaptized, do not fall under the power ol the Church. ' The case is different with heretics, schismatics, and ap< tates. For although they have fallen away from the
Church, they nevertheless remain in a certain sense members of her pale, by reason of their baptism, and are subject to her laws and authority. Hence, per sc, they also fall under her punishments, correctional or punitive.2
2007. Of those who are members of the Church, only adults are, generally speaking, punishable with correctional punishments. For by the law of the Church children under the age of fourteen are not presumed to have that use of reason which is required in order that a person can become guilty of obstinate persistence in crime, 3 which ob- stinacy is, as was seen, an essential condition of the punish- ments in question. For the same reason, adults who have permanently lost the use of reason, v. g., the insane, are not capable of being punished.
1 Cone. Trid., sess. 14, c. 2 de sacr. poenit. 8 Kober, der Kirchenbann, p. 95. 3 Cap. 12 de poenit. (v. 38.)
Upon whom can Correctional
Art. II. Entire Communities*
2008. Q. Can the punishments in question be inflicted, not only upon individuals, but also upon a zv hole community as such, v. g., upon a whole religious confraternity, or a Parish, or Chapter, or other corporate body, secular or religious?
A, It is certain that excommunication cannot be thus imposed. This is expressly laid down in the law of the Church, as still in force. " In universitatem vel collegium," says Pope Innocent IV. (1245), " proferri excommunicationis sententiam penitus prohibemus . . sed in illos duntaxat de collegio vel universitate, quos culpabiles esse constiterit, promulgetur." x For, as was shown, it is a principle both of the natural law, and of the positive ecclesiastical law, that punishment shall fall only on the guilty person himself and not upon the innocent. Hence, when members of a community or moral body become guilty of crime punish- able with excommunication, they alone should, upon due conviction of their crime, be excommunicated, and that not collectively, but individually. '
2009. The case is different with suspension and interdict, which, as was seen, may be imposed upon a whole commu- nity or chapter, as such, that is, in its capacity of moral or corporate body. But a suspension which is inflicted upon a whole community or moral body, — v.g., sl Chapter, Cathedral, or collegiate, a monastery, — temporarily with draws only those rights which belong to, or are exercised by the community or moral body, as such, but not those rights which are possessed by the members of such body, as individuals. In other words, the suspension will extend only to corporate acts.
1 Cap. Romana 5. de sent, excom. in 6° (vn 11.) • Kober, 1. c, p. 100.
/' J////r;//\ be I njln ltd?
I lui .1 ( -.ii hedi al « haptei < an be • u pcnd( d a
. >i ,ils< » ,/ . I Jul t he sn mi In Mil I li< offii tUM
will be iim i cl\ from the t apitular functions < »i office, \ i/., the right ol election. And the su pension from th< /><>/■ tficium will be merel} i' the income which the canon
h.i\ e r, but not 1 1 1 'in t hat u hi< li t h<\ m.i\ deri
from other ecclesiastic .il offii es held l>\ them. ( 'onsequent-
U suspension <?/> <>/<////<■ cannot be inflicted upon a moral body, because the exercise oi the ord acerdotal func-
tions, is ;i personal^ not ;i corporate, right or power, thai a power belonging to persons as individuals and nut members oi the community.1 Examples of suspension from office or from benefice inflicted upon ecclesiastical corpor- ate bodies ma) be seen in the Cap. unic. ne ^-^V- vac. in 6° (III. 8); Cap. I Extrav. Com. de Elect. (I. 3); Cap. 40 de Elect, in 6°— (I. 6). 3
201 1. From this reasoning it will also he seen why ex- communication cannot be imposed upon corporate bodies as such. For this punishment, by its very nature, dis- possesses a person, for a time, of certain spiritual benefits, such as membership of the Church, of the sacraments, etc. Now all these are privileges which members of a moral body possess, not as members of such body, but as members of the CJiureJi and by virtue of baptism. s Whether an ex- communication inflicted upon a whole community would be not only illicit, but also invalid, is controverted. 4
2012. Hitherto we have seen that all those who are members of the Church can be visited with correctional punishments. This, however, is not to be understood as though a particular member could be punished by any and every ecclesiastieal Superior ; for a person can be punished only by that particular Superior who possesses jurisdiction, ordinary or delegated, over him and to whom, therefore, he
1 Kober, die Suspension, p. 32. 2 Cf. Stremler, 1. c, p. 188.
3 Kober, 1. c, p. 31. 4 Cf. Konings, n. 1659, q. 6.
164 Upon whom can Correctional
is subject. l Who these are and over whom their authority extends, has already been shown. 2
Art. III.
The Pope and Bishops.
2013. From the principle just laid down it follows that the Pope cannot incur any reformative punishments whatever, not even those latce sententiee inflicted by the general law of the Church. For he has no Superior on earth, and hence there is no one who can exercise jurisdiction over him. Again the highest law-giver, is not, in the ordinary sense, s bound by his own laws, since no one can be his own Supe- rior. 4 Now the Pontiff is the highest law-giver in the Church, and from him all the general laws of the Church emanate, either directly or indirectly. 6
2014. Bishops, by an express provision of the Sacred Canons, do not incur any of the suspensions or interdicts, inflicted ipso facto or latce sententiee by ecclesiastical law, save when they are expressly mentioned.6 This privilege or exemption does not, however, extend to excommunica- tion ; for the Cap. 4 just quoted, which was enacted by Pope Innocent IV., in 1245, onry exempts them from suspensions and interdicts, but not from excommunications. Now privileges or exemptions, which, like the present one, derogate from the common law of the Church, must be strictly construed. 7
' Cap. 21 de sent, excom. (v. 34). 2 Supra, n. 1859 sq.
s L 31 ff. de leg. (1. 3). * Nemo sibi imperare neque se prohibere potest " ( L. 51 ff. de recept. 4, 8.) B Kober, die Excom., p. 119. 6 Cap. 4 de sent, excom. in 6° (V. 11.)
7 Schmalzg., 1. c; Kober, 1. c, p. 120.
Punishments A InjluUdf 105
Art. IV.
Strati xnd TravtUtrs*
is. The Bishop, as has been seen, possesses jurisdi< tion ovei .ill those who belong t<> his diocese, la well
Ecclesiastics. Here several questions present themselvi First, ii may happen (hat a diocesan <>i subject <»i the Bishop, ki\ or ecclesiastical, is travelling outside of the dkx \\<\
while so travelling transgresses a law of the di< to
which he belongs, but from which he is absent at the tin Now suppose the law thus transgressed has a censure an- nexed. Does he incur it? In other words, and to make the question more general and applicable to all a subject who, while out of the diocese to which he belong violates a diocesan law having a censure annexed, incur this punishment ? Observe, we say, diocesan law ; for if he violates a general law of the Church, he is amenable to his own Ordinary. ' Again, we say, while out of the diocese ; for such a person can certainly be punished by censures, even while he is out of the diocese, for crimes committed in the diocese.
2016. We now answer the question. It is certain that reformative punishments or censures, which are enacted by synodal statutes or by way of a general precept — per senten- tial generalevi, vg.. by circular letters, are not incurred by subjects when out of their diocese. This is expressly enacted by the law of the Church. " Statuto episcopi," say the canons, " quo in omnes qui furtum commiserint, ex- communicationis sententia promulgatur, subditi ejus, furtum extra ipsius dicecesim committentes, minime ligari noscuntur : cum extra territorium jus dicenti non pareatur impune. " % For such statutes or commands are territorial
1 Supra, vol. ii., n. 784. s Cap. 2. de Const., in 6° (I. 2.)
1 66 Upon whom can Correctional
and do not bind out of the territory of the Superior by whom they arc made.
2017. As to the correctional punishments which are im- posed by way of a special precept or command — per sent curiam spccialcm — v. g., if the Bishop lays a command or prohibition upon some particular subject or subjects of his, under pain of censure, it is controverted whether this subject, violating the command while out of the diocese, can be visited with censure by his Bishop. The affirmative — that is, the opin- ion which holds that the delinquent can be visited with the censure, is the more probable opinion.
2018. We shall now invert the case, and consider the liability of the above stranger or traveller in relation to the correctional punishments of the strange diocese where he is for the time being. In other words, if the traveller is not liable to the local reformative punishments of his own dio- cese, as explained above, is he also exempt from the local correctional punishments of the diocese where he is at the time? Or, to put the question in a more general way : Do strangers, and travellers, and all those who are out of their own diocese, and in a strange diocese, fall under the cor- rectional punishments of the Bishop in whose diocese they are for the time being ?
2019. Before answering, we observe that they incur all the censures established by the common law of the Church, unless they are in abeyance in the place where they are for the time being. The reason is that a person remains every- where subject to the common law, and consequently also to the punishments decreed by it. The Bishop in the case oecomes competent to inflict the punishments in question, ratione delicti, as was seen above. x
2020. We now answer : They incur those censures of the Ordinary of the place where they are for the time, which
1 Supra, n. 791.
Punishments A Inflicte^ 167
arc annexed to local laws the violation "I wIik h would di turb the public peac< 01 onjei oi the place, oi i>< injuriou to the common good oi such place. I n 1 1 come subject to the Bishop oi the plat tiotu delicti,
Thej do not fall under ;m\ oi the othei cen ui 1 is oi the 01 dinary oi the place where the} arc for the time bein
1 Craiss., D, Ojbv icinki, 1. c. , \>. ibo.
CHAPTER V.
FOR \THAT CAUSE CAN REFORMATIVE PUNISHMENTS BE IN- FLICTED ?
Art. I. Crimes which are Grave.
202 1. As has already been seen above, censures are punishments, and therefore can be inflicted only for crime. l Hence, whatever frees from sin, v.g., — ignorance, fear, inad- vertence, exempts also from the punishments in question. Canonists here ask, whether these punishments can some- times be imposed for venial sins. There are two opinions. Some canonists hold the affirmative, in this sense : they distinguish between grave and light censures ; grave cor- rectional punishments, they say, cannot be inflicted for light offences, but light censures can. 2 By light censures they mean, v.g., — a suspension or interdict, which is but par- tial and not total, and not of more than two days' duration.
2022. Others maintain the negative,3 and say that all cor- rectional punishments or censures, no matter how partial and brief in duration, are always very severe punishments, de- priving a person, as they do, of spiritual benefits, which are essentially of greater value than temporal, and moreover entailing temporal disadvantages, 4 especially loss or diminu-
1 Supra, n. 1668, 1847.
2 However, those canonists who hold this opinion concede that a Bishop or Supe- rior would act very imprudently, by inflicting even what they regard as very light censures for venial faults. (Craiss., n. 6397.)
3 This seems, at least practically, the only safe opinion.
4 Thus Kober (Susp., p. 54) says, nobody will deny that to forbid an Ecclesiastic to perform some function of his office, or to deprive him of his income, wholly or partly, is of itself, apart from the injury to his good name and honor, already a very jrave punishment for an Ecclesiastic.
Infliction oj ReformattVi Puniskmen 169
lion oi g< m xl n;ii lie ; that, consequently, the) -lion Id nevei
be imposed l< )i -nis w 1 1 1 ( h .11 < mi i < I \ \ mial. I I
Schmalzgi uber ' tea* hes thai < en namelj >ra
munication, suspension, and interdict, as tl u uallv
inflicted, cannot be Imposed for a light or venial offem This, he maintains, is the opinion oi all canonists. The r< son given by him is, that the 1 ire most seven punish'
ments) and therefore onto! proportion with a venial fault. Now, reason and equity demand that the punishment shall be in proportion with the < >ffenc
2023. The words of this great canonist, whom Benedict XIV. calls facile Canonistarum princepS) arc: M Dubitatur an ob culpam venialem censura infligi pos dum, ex- communicationem majorem, suspensionem, et interdictum, prout communiter feruntur, ob culpam venialem injungi non posse, lta ex omnium sententia tradunt Navar. . . . Et col- ligitur ex can. Nemo 41 ; can. Nullus 42, Causa, 11, Q. 3; et ex Trid. sess. 24, c. 3, dc Ref. Ratio est, quia sunt poena gravissimte, ac pcenae improportionatae ad culpam levem." 3
2024. We have said, merely venial ; for these canonists all admit that when a sin, which is venial in itself, becomes grievous on account of certain circumstances, it may be punished with censures.
2025. This second opinion, then, is based on the theory that all repressive correctional punishments are severe punishments. 4 In fact, it is not an easy matter to discover any censure whatever (we always use the word censure as synonymous with correctional punishments and vice versa), that can be considered as light. For every censure, no matter how light, besides inflicting a spiritual punish- ment, injures the good name of a person thus punished. Again, the Sacred Canons require so much circumspection,
1 L. 5, t. 39, n. 56, 57, 60.
2 Cap. 5 de poenis, in 6° ; Bened. XIV., De Syn., 1. 10, c. I, n. 2.
s L. V., t. 39, n. 56, 57. 4 Pierantonelli, Praxis etc., p. 176,
170 For what Cause can Reformative
such great prudence and precaution, in the infliction of these punishments, as to treat them always as most serious punishments. Thus the Council of Trent commands that censures should be inflicted only sobrie magnaque circum- :oi'u\ lest they should otherwise produce perniciem potius quam Sainton. '
Hence it is the unanimous opinion of canonists that censures, as they are commonly inflicted, cannot be even validly inflicted save for grave offences.
Art. II. They should be preceded by the Milder Remedies.
2026. Nay, as the celebrated canonist Kober 2 well remarks, they cannot be imposed even for grievous offences, except after all other milder punishments have been applied and failed to produce any effect. A skilful physician does not forth- with amputate a limb because of a sore or wound ; he first tries to cure it by milder remedies. So also should a Bishop not make use of the sword of censures, even for great crimes, save when he has vainly applied all the other milder punishments.
2027. Consequently the rule is that these punishments should be imposed only in extreme cases, that is, only for the gravest and more heinous crimes, and even then only as a last resort, after all the lesser forms of punishment have been tried in vain. Thus Pope Benedict XIV.3 inveighs strongly against the infliction of censures for any but very grave and enormous crimes. In support of his view, he quotes Gerson, who compares a Prelate inflicting censures, against the above rule, to a person who, wishing to chase a fly from his neighbor's face, cuts off the latter's head, and
1 Scss. 25, cap. 3.de Rel. 2 Der Kirchenbann, p. 140 sq.
3 De Syn., 1. 10, c. 1, n. 2.
Punishment* ;>> Inflicted? 171
to .1 1 >ei ■' "i w ho, dc »ir< wx\ of curii ;it wound in bis
I m 1 . foot, cuts off the fool itself, and thus kills the animal.
II. in c al ". a 1 \ 'i'« l V n< 'In t X l \ Bishops should scarcel) ever, in theii statute . vnodal or extrasy nodal, impose censures which are Incurred ip l)\ those violating such statutes; oni) where th l.iw oi the Church Inflicts censures lata sentent ouid Bishops re-enact Mich censures, but rarely oth( Stremler ' therefore well remarks thai Superiors should with exceeding moderation, in Inflicting censures, and should be thoroughly versed in the teaching of approved canonists on 1 his head.
From what has been said, it follows that.il some.
thing be commanded under censure which, everything considered, is not a grave matter, the precept or command does not oblige subgraviyan6 therefore no censure can be
incurred lor its violation." We say ', everything considered ;
lor, as was seen, offences, which are of themselves venial, may become grievous, on account of circumstances, v. g., because of the scandal they cause. The great difficulty, however, consists in determining practically what circum- stances do render such an offence grievous. Canonists agree that no fixed rule can be laid down, but that it must be left to the prudence and conscience of the Superior to decide, in a concrete case, whether the circumstances are such as to authorize him to impose censures. It is a matter that requires the greatest circumspection on the part of the Superior. However, in this case, as in all other cases, he must be guided by the rule that he should inflict censures only in extreme cases, and when he has vainly applied the milder punishments. 4
1 L. c, c. 2, n. 15 sq. * L. c, p. 191. 3 Craiss., n. 6398.
4 Kober, 1. c, p. 141 ; Kober, Susp., p. 55.
17- For what Cause can Reformative
Art. III.
Incorrigiblencss.
2030. Hitherto we have shown that the punishments in question should be inflicted only for crimes, and that only for the graver and more heinous crimes, and even then only with extreme caution and very rarely. We now proceed a step farther, and say that they are not to be inflicted even for the greatest crimes, unless the delinquent has openly and ineontestibly shown his incorrigible, obstinate, and stubborn per- sistence in his crime. 1 Kober say s, let the crime be ever so enormous, the injury it has done ever so great, and the scandal it has given ever so serious, no censure can be inflicted, if the delinquent enters into himself, is sorry for his crime, repairs the scandal, and makes satisfaction, as far as he can. ■
2031. Hence the Superior, before inflicting censure, must repeatedly address warnings and admonitions (monitio ca- nonicd) to the delinquent — i. e., call upon him to amend. And only when, notwithstanding these warnings, he inso- lently and contemptuously persists in his wicked course, or refuses to repair the scandal he has given, can censure be imposed upon him. In fact, before proceeding to inflict the censure, the Superior must have juridical proof of the real existence of the stubbornness of the delinquent. He obtains this proof when he addresses to the delinquent a formal warning and command to amend, in such a manner as to be provable, v. g., in the presence of two witnesses ; or by having the delinquent himself sign the warning, which should be in writing. For, as soon as it is shown that this warning has been disregarded, proof is had of contumacy. *
2032. We have thus far, in the present article, shown
1 Fessler, der Kirchenbann, p. 17. 2 Kober, der Kirchenbann, p. 145.
3 Kober, Susp., p. 56.
Punishments l>< Inflicted '
that correctional punishments can be inflicted (a) onh foi ( i im( s, (&) \n Mi h .i! e verj jrave (c) and a< 1 1 >mpani< d b) incorrigibleness, (d) and even then only aftei the mildei forms oi punishment have been inflicted without effect, l tesides, i he ci ime, in ordei to be < e pun
i si n i in its, must be externa/, computet and juridically established, As we have already explained these points above, und Nos. [692sq.fit Is not necessar} to dwell upon them again at present
Art. IV.
Crimes which are entirely of the Past.
2°33- (?• Can a Bishop inflict correctional punishment? or censures U r crimes altogether past ?
A. He cannot, it the offence is purely and entirely past oi ended, that is, does not, in a measure or certain sense, con- tinue. Now a crime, though past, is said to continue in a measure, when the offender, though he does not repeat the crime, yet evinces no signs of sorrow for it, or refuses to repair the scandal given by him, or to make due amends. ' The reason why these punishments cannot be imposed for offences altogether of the past, is, that these punishments are established and inflicted chiefly and directly for the purpose of reforming the delinquent and inducing him to break off his evil ways and disobedience. But it is evident that they would lack this characteristic if they were im- posed as pure punishments for crimes which are completely of the past, and for which the offender is sorry and ready to make due reparation. !
2034. We say, if the offence is purely and entirely past ; for where the guilty party has indeed ceased to commit the crime, but yet refuses to make the proper satisfaction, or
1 Schmalzgr., 1. 5, t. 39, n. 67.
174
For what Cause can Reformative
repair the scandal he has given, and consequently evinces no true sorrow for his offence, his crime, though past as to the criminal act itself, nevertheless continues, morally speaking ; there is present disobedience and contumacy, and consequently such a person may be compelled by censures to make amends.1
2035. However, as has been shown, suspension and inter- dict may be inflicted, not merely as correctional punishments, but also as punitive. Hence, when they are imposed as vindicatory punishments, they may be inflicted for crimes which have completely ceased and are not accompanied by present contumacy or persistence in criminal wa}-s. Ex- communication alone can be inflicted only as a reformative punishment, and therefore never for crimes altogether past.
2036. Besides, even for a crime altogether over, a person may be temporarily forbidden to receive holy communion, attend divine service, associate with others, etc., as is done in religious communities. But these prohibitions, though also called, in law, excommunications or suspensions, are not censures proper, since their violation does not produce irregularity; hence they are purely vindicatory punishments, or necessary precautionary measures to prevent scandal. 2
Art. V. Future Crimes.
2037. Q. Can a Bishop inflict the punishments in question tor future crimes? that is, can he forbid future criminal acts, under pain of censure?
A. He certainly can, by way of a synodal statute, or an extrasynodal general mandate. In other words, he can, both in synod and out of it, make a general enactment impos- ing a reformative punishment upon any one who may
1 S. Alph., 1. 7, n. 49. 2 Crais<., n. 6407.
rim is ln>; < //////< t, d J
violate the command. Whethei be can a] o do o I ial
ni cm e, ( ii in .1 | mi i k u i.i i case, i a more involved qm stion. I n oi tlfi to arrive at .1 cleai under: tanding < >i 1 be mat 1 ii ism 1 \ to observe that, where the crime is altogi thtr
:o, .iml has not, in Bom< (ready begun to be
perpetrated, the Bishop cannot, In anv way, threaten to Inflict .1 censure, whether bj \\;i\ oi ferenda senientia ox by w.i\ oi lata sent enti&. For to threaten a particular person, who Is wholly Innocent, with punishment, would be a grave injustice to such a person, since it would injure his reputa- tion, Inflict upon him poignant mental suffering, and subjei 1 him to grievous humiliation and indignity without any cause whatever. This is forbidden by the very law oi nature.
2038. We say , altogether future ; for where a person has, so to say, already begun to commit the crime, and taken the preparatory steps, tnus rendering it morally certain that he will consummate the crime, he can justly be threat- ened with the punishments in question, if he commits the crime or corpus delicti. Evidently no injury is done him. He has already commenced a criminal course, and the Bishop has a right, nay, a duty, to endeavor, by the threat of punishment, to hinder him from going any farther in his evil course and consummating the crime.
2039. Next we must distinguish between these two cases : one, where the Bishop, in a particular case, imposes a censure ferendce sentential, namely where he merely threatens a censure, v. g., where he informs Titius that if he does so and so, he will proceed to inflict upon him suspension by way of ferendce sciit entice : the other, where he inflicts a censure latce sententice, that is, where, v.g., he notifies Caius that, if he fails to do so and so, he will be ipso facto sus- pended.
2040. Having given these explanations, we shall now an- swer the question. It is certain that the Bishop can inflict
i 70 For what Cause can Reformative
or rather threaten to inflict, by special sentence, i. e., in a
particular case, a censure of the first kind, that is, one which
renda sent entice, for crimes which are future, as explained.1
2041. On the other hand, it is held by some canonists that the Bishop cannot, even validly, inflict by special sen- tence a correctional punishment or censure, to be incurred ipso facto, for future crimes. Thus the Sacred Canons ex- pressly enact: " Caveant tamen (episcopi) ne tales senten- tias excommunicationis, sive specialiter sive generaliter, in aliquos pro fituris culpis, videlicet, si tale quid fecerint . . . proferre proesumant." 2 And the Glossa, commenting on this passage, explains : " Aliud est statutum (a general man- date, made in or out of synod), et aliud sententia. Statutum enim bene potest fieri pro futuris delictis, hoc modo : statuimus ut nullus hoc faciat, et qui fecerit, sit excommu- nicatus ipso facto. Aliud est sententia quae sic profertur : Excommunico T. si furtum fecerit; et hoc hie prohibetur.3 We say, by some canonists ; for others maintain the con- trary.
2042. The reason given by those who maintain the negative is, that to impose by special sentence a correc- tional punishment in such a manner as to be incurred ipso facto is to inflict it without any previous trial or judicial proceedings ; now the law of the Church, as in force also with us, both according to the Instruction Quamvis, 1878, and the Instruction Cum Magnoperc of 1884, enjoins that, save in the extraordinary and exceptional case where suspension can be imposed " ex informata conscientia," the ecclesiastical judge shall not inflict censure, except for crime which has been juridically established, that is, proved by due ecclesiastical trial. Thus also the S. C. de P. F. expressly declared in 1867: " Justitia non patitur, ut
1 Lib. 7, n. 49. * Cap. Romana 5, de sent, excom. in 6° (v. 11).
3 Glossa, in cap. cit. v. futuris; Glossa in cap. 2, de const, in 6°. (I. 2). v commisetunt.
Punishments be inflicted* 177
poetise infligantui advei 1 le quorum crimine fu*
ia rationt adhuc non < ow tat." ' In fa< 1. the law ol na tin i- require ■ that 110 p( ball, as .1 rule, be punished, un-
less he has been heard in his own d< fen< e. Now, to infli< I a punishment b) special sentence ipso facto would be di rectly to violate the right oi self-defence, since ;i p would be punished without ;m\ trial whatever,
1;. Whatever opinion may be adopted, it is certain that all ipso facto correctional punishments whatev< whether imposed by special sentence 01 by way of a law or general mandate > are incurred ipso facto only in conscience and in the internal forum, and do not hold or bind in the externa] forum oi the Church, except upon due trial and declaratory sentence. For in the external forum no one incurs a censure by the criminal act itself, that is, ipso facto, but only 14)011 declaratory or condemnatory sen- tence, both of which must be preceded by a trial.
1 Apud Rota, Enchir., p, 277.
CHAPTER VI.
FORMALITIES OBSERVED IN INFLICTING CORRECTIONAL PUNISHMENTS, ALSO IN THE UNITED STATES.
2044. The coercive power of the Bishop, by which he is authorized to impose correctional punishments, is, like the legislative, an ordinary power, being inherent in his office of Bishop. Hence he can exercise it either personally or through others. Now the Bishop should indeed chastise offenders, repress abuses, and break up scandals. But he should do so, as Stremler 1 remarks, in the manner prescribed by the Sacred Canons, and not otherwise. Thus also the In- structions Sacra Hcec of June nth, 1880, and Cum Magnopere, of 1884, enact: " Ordinarius pro suo pastorali munere te- netur . . . curare, ut. . remedia a canonibus statuta . . provide adhibeat." 2 And again : " Conscientias Ordinarii remittitur cujusque remedii applicatio, canonicis prcescriptionibns servatis pro casuum ac circumstantiarum gravitate." 3
2045. The question, therefore, naturally presents itself: What is this manner, or what are the formalities which the Bishop is bound to observe, when he inflicts correctional punishments or censures ? They are chiefly three : The canonical warning and the precept, the ecclesiastical trial, and the sentence. We shall now explain each of these separately.
Art. I. The Canonical Admonitions and the Precept.
2046. We have already shown what is meant by the can- onical warnings and the precept, and with what formalities
1 L- c, p. 200. 3 Art. i. 3 Art. iii.
( <n >//(// Punishments i also in th< I nited States, \
i lic\ arc given.1 Here we shall merely add a few rcmai which will elucidate still bettei what w i have already aid .ilx)\ c. The ( an< >nu al wai nin two kind
01 virtual; (&) special or express, It Is special, when il addressed to & particular person; general oi virtual, when made to a number o\ p< in ;» general ways but not to
.ui\ i >ne in pari icular, \\ hen I he I lish< >p
statute, and threatens that all who violate it shall be visited with excommunication.
^ i. Necessity of the Previous Admonitions.
17. Q. Arc the canonical admonitions always to I"' given before a repressive correctional punishment can be imposed ?
A. First, in the case of censures which arc inflicted a jure, in such a manner as to be incurred ipso facto, no special pre- vious warning, and therefore also no precept is required. 3 The reason is, that the law itself or statute in question is a constant and standing admonition and precept. Hence no special admonition, distinct from that already contained in the law or statute, need be addressed to the offender, 3 for these punishments are incurred in the internal forum, ipso facto, that is, without any formality whatever. In other words, no admonition or precept, no trial or sentence, no intervention whatever of the ecclesiastical judge, is needed in the case ; for in foro intcrno the censure executes it- self, so that, the very moment a person has committed the offence designated in law as punishable ipso fcto with censure, he incurs it, in the internal forum, without any formality whatever. Consequently, when there is question of a person having incurred a censure latce sententice, it is a matter of conscience for such person to determine whether he has really incurred it or not. If he knows that
' Cf. Craiss., n. 6409; Kober, Susp., p. 59. 2 Cap. 26. de appell. (ii. 28.)
3 Kober, Excom., p. 149.
i So Formalities observed in inflicting
he has committed the crime to which the censure is an- nexed, he is bound in conscience or in foro interna to observe it.
2048. We say, " executes itself in foro interno ;" for the
external effects of the censure do not follow, save when the matter has been brought before the external forum, or before the judicial tribunal of the ecclesiastical judge, and the latter, after due trial, has declared that the censure was really incurred.1 Hence, so far as the forum externum is concerned, the punishments in question are not incurred, save after an ecclesiastical trial and a declaratory sentence, as we shall see below, when we come to speak of the trial which must precede correctional punishments.
2049. Secondly, in the case of all the other censures, namely, those inflicted ab hominc, per sententiam specialem, and also those a jure which are merely ferendce sententice (and by censures a jure we here mean also those enacted by statutes or regulations of the Bishop when made in synod, or when enacted out of synod, but by a general mandate), the special canonical warning is absolutely required, also in the United States, and all countries similarly circumstanced. Here is the express law of the Church on this head : " Cum speciali sit prohibitione provisum ne quis in aliquem excommunicationis, (suspensionis et interdicti) sententiam, nisi competenti commonitione prcemissa, promulgare prae- sumat." 2 And again : " Nee in specie, nee in genere . . . excommunicationum, (suspensionum aut interdicti) sen- tentias absque competenti monitione prczmissa promulgent, et si contra praesumpserint, injustas noverint esse illas. " 3
2050. For, as we have seen, correctional punishments are medicinal and not merely punitive, Hence, by their very nature, they presuppose not simply a crime, but, as we have seen above,4 obstinate persistence in crime, Therefore they
1 Fessler, der Kirchenbann, p. 21., note. 2 Cap. 61 de appell. (ii. 28.)
8 Cap. 5 de sent, excom. in 6° (v. 11.) 4 Supra, n. 1886.
( orrectional Punishments, also in ///< i nited . iHi
( .in be inilu ted, not whenevci a pci nit \ of crin
hui onl\ win M. duly admonished) he stubbornly
continues in hi iiiMiin.il course. Ii Is repugnant to the \ ci \ nature of a censure that if should be imposed upon one who has not been < 1 1 1 1 \ warned beforehand, and who consequent I \ is not ( i »n1 umacious.
>5i, It is true that, in regard to correctional punish- mentsay«r/ which are ferenda senteniiat some canonists hold that no previous special warning is needed, on the ground that in this case, as in the a jure
which are lata sent entice > the law itseli is a perpetual warning. But the more common opinion (which is also the more probable and practically the only sale opinion i tea* h that a special warning, distinct and separate from that contained in the law, is required in the case. This is also clearly indicated in the cap. 26, x., de appc//., which enacts that the special warning can be dispensed with only in the case of censures incurred ipso facto, as explained above. '
2052. But it will be asked whether there may be any exceptional cases or circumstances that can dispense the ecclesiastical judge or Superior who is about to inflict a censure (of course we speak not of those censures a jure which are incurred ipso facto, since, as we have seen, no special warning is essential in their case) from the obligation of giving the special warning as just explained. Before answering, we premise that, when censures are inflicted as purely vindicatory punishments, no previous admonition is required. Now only suspension and partial interdict can be imposed as vindicatory punishments. 2
2053. We now answer: According to some of the older canonists, the Bishop can omit the warnings in a few cases, namely, (a) where there \s> periculum in mora ; (J?) when
1 Supra, n. 2047. 2 Cap. Tarn litteris, de test ; Cap. Cum In cunctis 7, de elect ; Clem. 1 de hseret.; Clem. 2 de poenis.
[82
Formalities observed in inflicting
be defends himseli against violence, exercised either against his own person or the rights of his Church, on the principle that he proceeds in the case as a private person acting in self-defence and can therefore oppose force by force, that is, he is not bound to observe the forms of law, where the un- just aggressor disregards them ; (c) where both the crime and also the incorrigibleness are notorious, v. g.y where the offender has publicly declared that he will not obey the warnings, if given ; for, as the law of the Church enacts, 1 where an excess or crime is ?wtorious, the ecclesiastical judge is not bound to grant a trial, i. e., to hear the defence or collect proofs, apart from the notoriety itself, which is considered the best proof. 2
2054. But modern canonists unanimously reject these exceptions, advanced by some of the older canonists, as (a) being in part contrary to the express letter of the law, (b) and wholly opposed to the present discipline of the Church. 3 Their answer to the first case is that the ecclesiastical judge, acting as a private person, has no jurisdiction whatever, and therefore can inflict censures only in his official capacity. In regard to the second exception, arising irom pericnlum in mora, they answer that the Sacred Canons have sufficiently provided for the case, by allowing the judge, in just such emergencies, to contract the three warnings into one per- emptory, and to make the interval as short as possible. Finally, concerning the third case, they reply that the present general discipline of the Church has altogether abolished the procedure or trial ex notorio, and made the usual juridical proceedings obligatory, as was seen, even in notorious crimes; that, besides, notoriety can never sufficiently establish the incorrigibleness of the notorious offender, since, even where a person has, v. g., publicly said that he will not obey the Superior's warning, it is possible, nay,
1 Can. Manifesta 15, C. 2, Q. 1 ; Cap 9, de ace. 3 Schmalzg., 1. c, n. 32.
3 Kober, Excom., pp. 153 sq.
( ctional Punishments^ also in the ( Tnited States* \
presumable, thai he roaj have done bo from bravado oi w ant of C( >nsi< leratii \n, '
,5. \\Y observe here that, absolutelj i peaking, no | vious canonical admonitions noi precept arc required, when there is question ol infli( ting vindicative punishm< i proper, nor even in the case of suspension and interdict when imposed as vindicative penalti< ■ We say, absolutely speaking \ for, as we have stated before, it Is advisable to give the canonical warnings and the preci pt, even in th< cases, This is apparent from Articles, II.. VII., of the Instruction Sacra ffac, June, n, 1880, and Cum Magnof
Oi [884. This view seems also tO be the one adopted In the
Third Plenary Council of Baltimore. No. 309. It accori also well with the aim of ecclesiastical punishments. For, in all her punishments, even in those which are vindicative, the Church always aims not only at the punishment, but also at the amendment of the offender. Hence the Council of Trent inculcates upon Bishops the importance of reproving, entreating, and rebuking in all kindness, 3 before proceeding- to punishments, medicinal or punitive. 4
2056. Some canonists go so far as to maintain that there is no real practical difference between medicinal and vindi- cative measures, so far as the manner of inflicting them is concerned ; that, practically speaking and as a rule, the canonical warnings and the precept, as well as the trial, are to precede vindicative as well as medicinal punishments. 6
2057. The obligation of giving the canonical warnings and the precept certainly bind under pain of mortal sin, or sub gravi. Does it, moreover, bind on pain of the invalidity of the censure or correctional punishment ? It seems cer-
1 Kober, der Kirchenbann, p. 155.
2 Schmalzg. 1. 5, t. 39, n. 30; Reiflf. 1. 5, t. 39, n. 28. Excommunication cannot be imposed as a vindicative punishment. Arg. cap. Cum in cunctis, 7, de elect; Cap. Sacto, de sent, excom.
3 Tim. iv. 2. * Cone. Trid., Sess. xiii. , cap. 1. de Ret. 5 Droste, 1. c, pp. 71 — 73.
184 Formalities observed in inflicting
tain that in the United States, where the Instruction Cum Magnopere obtains, and in Italy, France, and other countries not missionary, where the Instruction Sacra Hac of 1880 is published, both the canonical warnings and the precept are obligatory on pain of invalidity of correctional punishments. For, as has been observed, according to these Instructions, both the warnings and the precept are substantial parts of the procedure that must go before the inflicting of repressive correctional punishments.
2058. We say, according to these Instructions ; the question therefore presents itself whether also, according to the general law of the Church, as laid down in the Sacred Can- ons, which, though enacted prior to the above Instructions, are nevertheless still in force, the canonical warnings are obligatory sub poena nidlitatis ? The affirmative is the common, more probable, and, at the present day, the only safe and true opinion, at least practically speaking. ' Thus Barbosa, 2 after having stated that, according to some canonists, the canonical admonition is required only for the licitness or lawfulness, but not for the validity of the cen- sure, teaches that the opposite opinion is the sententia verior, et procul dubio communis ct receptissima, as is admitted even by some of those who hold the contrary view.
2059. That this holds also with regard to all missionary countries seems evident from the very nature of correctional punishments. For these punishments can be inflicted only for contumacious persistence in crime. Now there is no contumacy, or stubborn disobedience, where no warning has been given.
2060. In order to understand this more fully, we must distinguish between the triple and the single peremptory admonition. The law of the Church prescribes that the ecclesiastical judge must, as a rule, repeat the warning three
1 Kober, Exc, p. 156; Idem, Susp. p. 59; Reiff., 1. v., t. 39, n. 37. * Coll. Deer.. 1. 2. t. 28, eap. Reprehens. 26, n. 3 — 6.
Correctional Punishments^ also in the ('mini States. [85
times before h< t an pro* e< d to impoi e cei W(
as a ruli , f< \\ \\ hen there an .1 be tin
warnings ma} be contracted into one peremptory warn ing.' Now the latter, that is, the single peremptor} warning, is always required on pain ol nullity ol the punishment ,
2061. But the case is different with the threefold warni For it is true that, ii the ecclesiastical judge or Superior, without urgent reasons, gives but one warning, the com tional punishment inflicted b) him will be illicit, and he will be guilty oi mortal sin and incur various punishments, but the censure will, generally speaking, be valid. We say, generall} speaking; [or in two cases the triple admonition is required, not only on pain of the illicitness, but oi the in- validity of the censure, namely : 1. where the ecclesiastical judge wishes to inflict censure upon a person for communi- cating with, or not avoiding, another person excommuni- cated by himself:" 2. when a delegate receives the power to inflict censures only on condition that he shall give the legitimate prescribed warnings beforehand. '
2062. For the rest, it must be borne in mind that the three admonitions can never be condensed into one peremp- tory, except when there are urgent reasons for so doing. For if the ecclesiastical judge or Superior arbitrarily or even maliciously changes the three warnings into one, he commits a mortal sin, and, according to the Sacred Canons, becomes ipso facto interdicted ab ingressu ccclesice for a month, 6 that is, he is forbidden to put his foot into a church, and cannot there exercise any function of his ordo, nor assist at divine worship. 6 The Const. Apostolicce Sedis of Pope Pius IX. is silent in regard to this penalty.
2063. As to the manner in which the canonical warnings
1 Cap. 9 de sent, excom. in 6° (v. 11). 2 lb; Kober. Excom., p. 156. 3 Cap. 3 et 13 de sent, excom. in 6°. 4 Kober, Excom., p. 157. 6 Cap. 48 de sent, excom. (5, 39). b Kober, 1. c, p. 158.
1 85 Formalities observed in inflicting
are given, sec above, n. 1774. See also our New Procedure, Nos. 70 sq.
2064. When the canonical admonitions do not produce the desired effect, the precept is to be given. When even the latter proves of no avail, the reformative punishment or censure may be imposed, after due trial and conviction. In regard to the precept, see above No. 1789 sq. See also our New Procedure, Nos. 72-83.
Art. iio The Trial.
2065. When the canonical warnings and the precept remain unheeded, the obstinacy of the offender becomes undoubted. But the Bishop cannot even then proceed immediately to inflict the censure or correctional punish- ment. He is obliged to give the delinquent a canonical trial, and only when, upon such a trial, both the crime and the offender's persistence in it have been fully and juri- dically established, can the correctional punishment be imposed.
2066. We shall now proceed to prove this, in the follow- ing order. First, we shall show that a trial is prescribed by the law of the Church, as still in force, prior to the infliction of censures; second, that, down to the year 1880, this trial had to be a formal or ordinary, not merely a summary one ; third, that at the present day, the Holy See, by the Instruction Sacra Hcec, of June II, 1880, has authorized Ordinaries of countries not missionary to use a simpler form of trial, whenever it is impossible or inexpedient to ob- serve all the formalities of solemn canonical trials ; fourth, that in the United States, the trial, as outlined in the Instruction Cum Magnopere, must precede not only vindica- tory punishments, but also censures; fifth, that in all other missionary countries censures must, like vindicatory pun-
Correctional Punishments^ also in th< United States, 187
ishments, be preceded i»\ .1 trial, which, though not the canonical trial, must nevertheless have all the substantial
ii 1] in. ilit us oi judicial pro* eedin
£ 1. The Necessity 0) </ Trial according to the General Law.
\\ v shall ii< »w disci] 1 In- first of t hese, qui The law oi the Church, as it existed formerrj and still, prescribes that .1 trial shall precede the infliction of correctional punishments, i, e., censures, 110 less than "1 vin- dicatory. This is expressly laid down in the Sacred Cano 1 bus Pope Nicholas enacts : " Memo episcopus . . . excotn- municet aliquem, antequam causa probetur pn »| >ter quam ec< le- siastici canones hoc fieri jubent." ' St. Augustine, the great Bishop ol Hippo, explaining the discipline of the Church prevalent in his day, says: " Nos vero a communione prohibere (1. e., excommunicare) quemquam non possumus, nisi . . . in aliquo ecclesiastico judicio nominatum atque convic- tum"% In the same place, a little further on, he inculcates this principle with still greater emphasis, and teaches that, where offenders cannot be given the benefit of a trial, prior to their being excommunicated, it is better to tolerate them rather than to separate them from the Church without a trial. His words are : " Ouibus verbis satis ostendit (Apos- tolus Panlus) non temere, aut quomodolibet, sed per judi- cium auferendos esse malos ab Ecclesias Communione ; ut si per judicium auferri non possunt, tolerentur potius." % In like manner, Pope Alexander III., (+ 1181) decrees: " Si vero (clerici) coram episcopo de criminibus in jure confessi sunt, seu legit ima probatione convicti, dummodo sint talia crimina propter quae suspendi debeant vel deponi, non immerito suspendendi sunt a suis ordinibus." 4
2068. Nay, the Sacred Canons not only forbid the inflic- tion of censures without a previous trial, but, moreover, de-
• Can. 11, c. 2, q. I. 2 Can. 18, C. 2, q. I. 3 lb.
4 Cap. 4, de Jud. (ii. i).
1 88 Formalities observed in inflicting
cree severe penalties against those Superiors who presume to inflict these punishments without a trial. Thus Pope Nicholas enacts : "Si quis autem adversus earn (normam, :. ... sine judicio) excommunicaverit aliquem, ille quidem qui excommunicatus est, majoris sacerdotis (*. e., judicis appel- lationis) auctoritate ad gratiam sanctas communionis redeat : is autem, qui non legitime excommunicavit, in tantum ab- stineat tempus a sacrosancta communione, quantum majori sacerdoti (*. e., judici ad quern) visum fuerit, ut quod injuste egit, ipse juste patiatur." *
2069. As will be observed, these canons speak expressly of censures, and enact that they shall not be inflicted with- out a trial. To these enactments which refer directly to correctional punishments, we might add others, namely those which enjoin that no punishment whatever, and consequently no censures — for the general term, punish- ments, includes correctional as well as vindicatory remedies — shall be inflicted, save upon a trial. Thus Pope Melchi- ades, writing to the Bishops of Spain, enacts, " Neminem condemnetis, ante verunt et justum judicium." 2 Again Pope Marcellus decrees : " Non oportet quemquam judicari vel damnari, priusquam legitimos habcat prcesentes accusatores, loeumque defendendi accipiat ad abluenda crimina." 3 So also does Pope Damasus ordain : " Habetur in decretis sanc- torum Patrum sancitum, non fore canonictim, quemquam sacerdotum judicare, vel damnare, antequam accusatores canonice examinatos prasentcs habeat, loeumque defendendi accipiat." 4
2070. In like manner, the celebrated Cap. Qualiter et quandot issued by Pope Innocent III. in 12 16, enjoins that, before inflicting any punishment whatever upon his subjects, a Prelate must give the latter a full and fair trial. The words of this famous decretal are: "Qualiter et quando elebeat Praelatus procedere ad inquirendum et puniendum subdi-
1 Can. 11, C. 2, q. I ; Can. 6, C. 24, q. 3. a Can. 13, c. 2, q. s.
3 Can. 5, c. iii., q. 9. * Can. vi. C. 3, q. 9.
( , onal Punishments tn the Untied States, i
tor uin CX( < \ -Hi' t( n if.il ibui \ I ' 1. 1
menti colligitui . 1 1 I i "i .mi I i « nioi ibui v< i i
tatcm dili ■'■ iii 111 pcrscrutari . . , Debet igitur esse prastm contra quern facienda est inquisitiat nisisi ontumaciam at
tentaverit ; et exponenda sunt ei ilia capitulat de quib\ fit
inquirendum, ut facultatem habeat defendendi seipsum ; et nan solum dit (a, sed etiant nomina ipsa testium sunt < % (ut quid et a quo sit dictum uppo- publicanda% necnon exceptions et
replications legitimes admittenda : ne per suppressionetn nontu hum, infamandiy per exceptionum vero exclusionentt deponendi falsum audacia prabeatur" This great constitution still obtains, since, as was observed, the Council of Trent expressl} re-enacted it. '
2071. Finally Pope Gregory IX., in the decretal Qmcsitum, issued in 1229, enacts in the most positive manner that crimes which are not proven by a trial cannot be punished. His words are: " Quaesitum est de sacerdotibus vel aliis clericis, qui per reatum adulterii, perjurii, homicidii vel falsi testimonii, bonum conscientiae rectae perdiderunt. Respondemus, quod si proposita crimina or dine judiciario comprobata, vel alias notoria non fuerint, non debent hi (praeter reos homicidii) ... in jam susceptis vel suscipiendis ordinibus impediri." 2
2072. However, it may perhaps be objected that these canons are no longer in force ; that they were abrogated by the Council of Trent, which in sess. 14, C. 1. de Ref., authorizes Bishops to inflict suspension ex informata consci- entia, i. c, without any trial. We answer: it is true that, in the place quoted, the Council of Trent gives Bishops the above power. But it is also true that this power is to be used onlv in the case of occult crimes, and in exceptional and extraordinary cases, as explained bv us above, Nos. 1279 sq. For ordinarily the suspension must be preceded, according
1 Cone. Trid., sess. 24, C. 5 de Ref, 9 Cap. 17 de temp. ord. (I. xi^
1 90 Formalities observed in inflicting
to the same Council, by a trial, as appears from the fact that, while this Council, on the one hand, introduces the procedure ex informata couscientia, it re-enacts and confirms, on the other, as we have seen, T the decretal Qualiter et quando, 24 de ace. (v. 1) enacted by Pope Innocent III. (f 1216), which prescribes that Bishops and Superiors shall not inflict any punishment, whether vindicative or correc- tional— except upon a canonical trial.
2073. Finally, the law of the Church requiring a trial before the infliction of censures, except in the case of suspension ex informata couscientia, was re-enacted in the Instructions Sacra Hcec of 1880, and Cum Magnopere of 1884, the former of which forms the present law for Catholic or non-missionary countries, the latter for the United States. For, according to these Instructions, all repressive punish- ments, i. c, not only vindicatory, but also correctional, and consequently also censures, must be preceded, as we have al- ready seen, not only by the warnings and the precept, but also by a trial, to be conducted in the manner outlined by these documents.
2074. It is, therefore, beyond doubt, that, except in the case where sentences ex informata couscientia are allowed, all repressive punishments, whether punitive or correctional, must at the present day, as in former times, be preceded by a trial. This is, in fact, based upon the very law of nature, which forbids any one to be condemned or punished, unless he has been heard in his own defence, i. e., unless a trial has been granted him. For our natural sense of justice tells us that the Superior cannot justly inflict punishment, unless he has been rendered morally certain of the offence, i. e., unless the offence has been proven before him. Con- sequently the defence as well as the prosecution must be heard by him. J Therefore not even the Pope himself
1 Supra, n. 1303. 3 Supra, n. 704, 705, 706.
Correctional Punishments % also in the United States* 191
can inflict punishment, without observing th<
foi m. (hi i< 1 oi 1 1 ials. " \'< ■< v i\ Pope G 1 x..
"contra inauditam partem illiquid diffinirc possumus."1 rhe previous trial is ^<> Indispensable that 1 pt
suspension Inflicted ex infortnata conscientia,) imposed with- out it is absolute!) null and void, also in missionai count ries, .is we shall see.
2075. Nay, the censure or correctional punishment r> in- valid, not only when the trial itseli is entirely omitted, but also when an essential formality prescribed for trials is not observed during the trial; v.g.% where the citation is not
made' ; if the accused is not allowed lull liberty tO defend
himself; if the canonical exceptions submitted by the accused arc- rejected. Thus Reiffenst ul ■ teaches: " Red- ditur censura invalida ob neglectum substantialem ordinem ;
ut si judex cam ferat nulla nee unica quidem praemi admonitione, vel si omittatur citatio rei, isauc ad sui defen- sionern non admittatur."
2076. The same holds, if there are no juridical or canonical proofs of the crime, 3 — v. g., if there are not, as a rule, two witnesses who are above all suspicion, — and that even though the Bishop or proper Superior, by facts which have come to his knowledge extrajudicially, i. c, outside of the customary trial, is fully convinced, personally and privately, that the crime has been committed bv the defendant ; 4 for, according to the old canonical axiom, " quod non est in actis, non est in mundo," so far as the external forum is concerned. Suarez 5 says : " Judex humanus non potest de sibi occultis judicare ; est autem occulta (causa) quoad effectum ferendi sententiam, quamdiu juridice probata non est, ctiamsi alioquin privatim nota sit illi homini qui judex est.11
1 Cap. 1, de caus. poss. (ii. 12) ; Glossa. ib., v. dimnire. - Lib. v., n. t. 39, 37.
3 Cap. 10, de const, (i. 2); Cap. 5. de in integr. rest. (i. 41) ; Clem. 2 de V. S. (v. 11); Kober, Excom., p. 165.
4 Can. 2, 3, c. 5, q. 2. 5 Disp. 4, sect. 7, n. 4.
19- Formalities observed in inflieting
2077. The only case (besides that ex informata conscicntid) where the trial is not required as an essential condition for inflicting a censure is when the crime is so notorious, both materially and formally, as to admit of no doubt or excuse ; though, as we have seen above,1 even in this case, it is now the universal custom and practice of ecclesiastical courts to give the accused, as a rule, a trial. See our New Procedure, Nos. 85 sq.
§ 2. The Formalities of a Trial, according to the Sacred Canons.
2078. We now come to the second question, which relates to the kind of trial that precedes censures. Our proposition is that, down to the year 1880, this trial had to be a formal or ordinary canonical trial {judicium ordinarium, plenum, solem- ne) and not merely a summary one. To prove this assertion, wre need but repeat here the common teaching of canon- ists, as stated above, Vol. II., No. 1275, " that, apart from a special mandate of the Pope, the formalities of solemn or ordinary canonical trials must always be observed in crim- inal causes — i. e., in causes where a punishment, vindicatory or correctional, is to be imposed — the summary trial being applicable only to civil causes of minor importance." This, of course, applies to countries where canon law obtains. For the formalities of ordinary canonical trials, see Vol. II., Nos. 932, sq., second edition, 1888.
§ 3. The Trial according to the Instruction of June II, 1880.
2079. Our third thesis is that, at the present day, the Holy See has authorized Ordinaries of non-missionary countries, where canon law is in force, to use a simpler form, whenever it is impossible or inexpedient to observe all the formalities of solemn trials. This is proved from the express words of the Instruction Sacra Hcec, June 11, 1880, of
1 Supra, n. 1263.
actional Hmuhmtntss also in tfu I nited
the s. C. BE. ef RR " Sa< ra ha El et RR I itio
. . . cons! iitni i.m uli ihm < )i dinai lis cxpn on< ederc ut
formas magis oeconomicas adhibere valeanl in exercitio suae disci plinar is jurisdictionis supei cleri (Prooem.)
Again the same Instruction, Art. I \ s: ' Quoad media
poenalia, animadvertanf Reverendissimi Ordinarii praesenti fnstructione haud derogatum esse judiciorum solemnitatibus% ; Sacros Canones, per Apostolicas Const itut tones, et alias siasticas dispositions imperatis, quatenus eaedem libere effii citerque applicari queanl ; sed ceconomicae formae consulere intendunl illis casibus curiisque, in quibus solentnes processus aut adhiberi negueant, aut non expedite vidcantur"
2080. Hence the above Ordinaries are hound at present, prior to inflicting a censure or a vindicatory punishment, to give the accused a formal or regular canonical trial, unl<
this LS impossible or inexpedient. This also proves clearly what we have asserted in the preceding proposition, to wit, that, down to 1880, when the Instruction Sacra Hccc was issued, the trial which preceded censures as well as puni- tive remedies was of necessity a formal or solemn can- onical trial, not merely a summary one. For it would have been absurd otherwise for the S. C. EE. et RR., in the above Instruction, to authorize Ordinaries to lay aside the solemn trial, and to use a simpler one. What need was there for empowering Bishops to omit the formal trial and substitute in its stead a simpler one, if they were under no obligation to give the formal or solemn trial ? x See Vol. II. Nos. 1277, 1278.
§ 4. The Trial in the United States according to the Instructions
of 1878 and 1884.
2081. Our fourth proposition is, that in the United States the trial, as outlined in the Instruction Cum Magnopere of 1884, must precede not only vindicatory punishments.
1 Supra, vol. ii., n. 1277- 1278.
1 94 Formalities observed in inflicting
but also censures. This is clearly pointed out by the Instruction itself, as we have already shown. The very teaching of the Instruction leaves no doubt on the matter. It is : M Instructio S. C. de Prop. Fide, de modo servando in cognoscendis et definiendis causis criminalibus et dis- ciplinaribus clericorum in Fcederatis Statibus Americae Septentrionalis." The trial, therefore, prescribed in this Instruction, is to be observed " (de modo servando) " or given, throughout the United States, in all criminal and disciplinary causes of Ecclesiastics. Now, by criminal and disciplinary causes, as has been seen, are meant all causes whatever where a repressive punishment, — i.e., not only a punitive, but also a censure, or correctional remedy — is to be inflicted. This is placed in a still clearer light by Article IX. of said Instruction, which provides that the power to proceed ex in for mat a conscientia remains in full force. The plain inference, therefore, is, that in all other cases the trial must precede the punishment, be it correctional or vindicatory.
2082. It should be observed that this same Instruction Ciim Magnopere, in Article XII., enacts that, in dioceses where the curia cannot as yet be established, the trial can be conducted in the manner laid down in the Instruction Quamvis of 1878. See our New Procedure, Art. XII., Nos. 177, 178 sq.
§ 5 . The Trial in other Missionary Countries.
2083. Our last thesis relates to missionary countries, such as England, Ireland, Scotland, Canada, Australia, and India, where canon law does not fully obtain, and where, more- over, no special form of trial obtains. We assert that in all these countries censures must, like vindicatory punish- ments, be preceded by a trial, which, though not the canonical trial, must nevertheless have all the substantial formalities of judicial proceedings, or of a full and fair trial. This is apparent from the fact that, apart from all positive
Cot sectional Punishments^ also in the f nited legislation oi the Chun h, the law oi nature, whi< li obtB
also in misSl< »n.n \ < I Mini i i< • , \< i] bids, 2L& \lB I, ;m\
one to be punished, eithei with .1 reformative 01 punitive punishment, save aftei a fail trial and a judicial hearin This trial, however, need not ne< rily be alwa^ a canonical trial, formal 01 summary, in the stri< 1 'use oi the woid. For missionary countriei are not supposed to hav< a complete canonical organization. Tli<\ are supposed to be in a state oi transition going through the process of attaining gradually i<> the lull, regulai organization pi scribed by canon law. Hence the non-essential formalities
of canon law in regard to trials do not fully obtain in tin
places.
20S4. Yet the trial must be full and fair. Consequently, as we said above, censures must, in missionary countries, be preceded by a trial, which, though not the canonical trial, must nevertheless have all the substantial formalities of a fill and fair trial. This is guaranteed to every accused by the law of nature itself, which forbids any one to be condemned or punished, unless he has first been heard in his own defence. Now, what are chiefly these substantial formalities, required by the very law of nature to constitute a trial ? 1. The defendant must be cited for trial, in order that he may be able to defend himself. 2. He must be allowed full and unrestricted liberty to defend himself. 3. Consequently, the charges, the testimony of the witnesses, etc., as prescribed in the Cap. Qualiter et qnando, must be communicated to him ; otherwise he could not defend himself. 4. All reasonable exceptions made by him must be admitted. 5. Finally, the proofs of guilt must be as full and conclusive as in formal canonical trials. x
1 Supra, vol. ii., n. 693, 1270.
196 Formalities observed in inflicting
§ 6. The Trials in tlie case of Censures inflicted " ipso jure"
2085. What has been thus far said concerning the obligation of the trial or judicial proceeding applies not to censures a jure, which are latic sent cut ice, but only to censures inflicted ab komine per sententiam spccialcm, and to censures a jure, (as to what we mean by censures a jure, see above, No. 1974), which are ferendce sententios. For, as we have seen, correctional punishments a jure, when lata? sent entice, are incurred in foro interno, without any previous special admonition, and without a trial.
2086. We say, in foro interno ; for in foro extcrno the censure does not hold, except when a trial has preceded. In other words, in order that the censure in question may produce its effects in foro externo, the bishop must give the offender a trial, and prove the crime by canonical proofs, obtained at the trial, and then pronounce declaratory sentence, — i.e., pass sentence declaring that he has committed the crime, and really incurred ipso facto the censure.
2087. Hence, so far as regards the forum externum, there is, practically speaking, but little difference between cen- sures which are lata; sentential, and the other censures ; for, in the case of censures lata? sentential, if they are to hold in foro externo, there must always be a juridical investigation or trial. 1 Moreover, an appeal in suspensivo lies against the above declaratory sentence. 2
Art. III. The Sentence.
2088. Hitherto we have shown that a correctional punishment cannot be inflicted, save (a) after the canonical warning, and the precept, and (b) after due trial. Having spoken of these two essential prerequisites, it but remains
1 Clem. 2 de Poen. (v. 8) ; Walter, p. 274. 2 Pierantonelli, I.e., p. 218.
Comctional Punishments % also in the United*
to explain tin" formalities t<> be observed In the rerj act
|>\ w huh I he I t iimii ( IS inllit ted, thai is. in I !.
which the ecclesiastical judge imposes the i i n un When the Bishop <>i ecclesiastical Superior, having given canonical warning, the precept, and also a trial, finds the guilt and the stubborn persistence in crime juridically proven, he can then, but not before, proceed to pronoun sentence inflicting censure, [n pronouncing this senten In- is, also in the United Si;iii-s, obliged to observe certain formalities, which are partly peculiar to censures and partly the same as those which must be observed in all final sen- tences, as described above. '
§ i. Weighing of the Evidence.
2089. Before pronouncing this final sentence, the judge should carefully sift and weigh the evidence produced at the trial, in order that he may duly ascertain whether the guilt is legally proven or not. In other words, he is bound to ascertain whether there is, juridically speaking, full and complete proof {probatio plena) of the crime. Full proof is required for conviction and condemnation in criminal and disciplinary causes, no matter whether the trial or pro- ceedings are ordinary or but summary. It is expressly enacted in the Cle?n. Cap. Sa?pe 2 de V. S. (v. xi.) that, in summary trials, the proofs submitted by the prosecutor in support of his case must be as full and complete as in formal canonical trials. 2
2090. This weighing of the evidence, by the ecclesiastical judge, is no easy task. He has usually a large mass of evidence before him, and that of the most conflicting kind —
1 Vol. ii., n. 1 1 74 sq.
* Supra, n. 1270. Hence also the Instr. Sacra Here and Cum Magnopere. art. xvi., enact: "Ad admittendam vero rei culpabilitatem necessaria est probatio legalist The trial prescribed by these Instructions partakes more of the summary than of the formal canonical trial.
1 98 Formalities observed in inflicting
the evidence of the prosecution and the defense being naturally diametrically opposed one to the other. He must examine and appreciate the force of this evidence, not according to his own feelings, inclinations, or likes and dis- likes, but solely according to the rules laid down by the Church in regard to the force of evidence. He should weigh with equal impartiality the evidence which is for and that which is against the accused. For the object of the trial is not merely to discover the guilt, but also the innocence of the accused. Thus the S. C. de Prop. Fide, in the Instruc- tion Cum Magnopere, beautifully says : " Processus ex officio instruitur . . . et usque ad terminum perducitur eo consilio, ut omni studio ac prudentia, Veritas detegatur, ac turn de cr imine, turn de re it ate, vel innocentia accusati causa eliquetur."
2091. If, upon due and serious examination of the evidence, the ecclesiastical judge finds that the proofs are equally probable or strong on both sides, namely on the side of innocence as well as guilt, so that it appears just as prob- able that the accused is innocent as that he is guilty, it is certain that he must be absolved or acquitted ; nay, he must be absolved, even though the proofs of guilt are much more probable than those of innocence. For both the natural and the positive law forbid any one to be condemned unless his guilt has been established as certain, not merely as probable. 2 In fact, both in formal and sum- mary trials, the accused must be acquitted wherever there is any reasonable doubt as to his guilt. This is thus stated by the Instructions Sacra Hcec and Cum Magnopere : " ad ad- mittendam vero rei culpabilitatem necessaria est probatio legalis, quoe iis momentis constare debet, quibus Veritas vere demonstrata elucescat, vel saltern moralis convictio inducatur quocunque rationabili dubio oppositi remoto." 3
2092. Here we remark, in passing, that the probatio legalis
1 Art xi. 3 Bouix, de Jud., vol. ii, p 228. 3 Art. xvi.
( or rectiona I Punishments s also in tin I nited
means th< proof! 01 evidence i >btaine< I al i h« ti ial
the allegata et probata in judiciot or, as St Th
•• ea quae in judicio proponuntui ef probantur." ihc
pi i\ ate 1 1 1 1 < 'i m. it ion oi i be judge is oi in i acc< >unf ,
1093. But even when the ecclesiastical judge finds the guilt lully and juridically proven, he should not proceed forthwith to pronounce sentence Imposing the ire
or punishment which the Sacred Canons, or the de< of plenary, provincial, or diocesan synods have laid flown for the offence. He should, first, consider the merits and circumstances of the case, and the degree of malice in order that he may see whether there are any extenuating or aggravating circumstances; v.g.> whether the accused acted from great provocation or sudden impulse; or whether he acted with cool premeditation or studied malice. For according as he finds greater or less malice, he should inflict a a verer or milder degree of punishment. He should, however, as was seen above, always incline to mercy rather than to severity, and sin rather on the side of clem- ency than of rigor. He should adopt as his rule of action the golden mean of being neither too severe nor too mild. 3
2094. Above all,4 should the ecclesiastical judge, in weighing the evidence, determining the degree of punish- ment, and framing the sentence to be pronounced, be careful not to allow himself to be swayed by any personal motives whatever,5 — v.g., of hatred, ill-will, dislike, favorit- ism. His sole motives should be zeal, charity, love of
1 Pellegrino, 1. c. p. 179, n. 36, says: " Dico, quod debet ferri sententia per judicem secundum allegata et probata in processu, (in judicio), non secundum con- scientiam privatam." Can. Judicet 4, c. 3, q. 7.
3 Supra, n. 747, 728, 3 Pellegr., 1. c. n. 53, 54.
4 St. Ambrose in the canon yiuiicet 4, c. 3, q. 7, beautifully says : " Judicet ille, qui ad pronuntiandum nitllo odio. nulla offensione, nulla levitate ducatur."
6 Pope Gregory the Great says : " Quicumque hostili odio, vel inimicUiis in jadicando ducitur pervertit judicium Christi. " (Can. 79, c. II, q. 3.)
200 Formalities observed in inflicting
justice, to bring back the offender to the path of duty, and to deter others from crime. '
2095. Here it seems also opportune to recall what we have said above, 3 that, by the law of the Church, an eccle- siastical judge, whether ordinary or delegated, who, knowingly, pronounces an unjust sentence, — v.g., who condemns a person whose guilt is only probably, and not certainly, established — or commits some other act of injustice in the course of the trial, whether through fear, favoritism, hatred, or hope of gain, is bound to pay the party idiom lie has injured all the expenses of the trial, and also all other losses occasioned by it. This principle is also clearly retained and indicated in our Instruction Cum Magnopere of 1884: " Haud ita facile Curiae Episcopales ad damna vel expensas resarciendas damnari poterunt ; quoties enim ex processu informativo indicia sufficientia ad agendum contra inquisitum appareant, judex appellationis a talibus damna- tionibus abstineat, cum ea indicia sufficiunt ut in judice, qui antea processit, ea vera et propria calumnia excludatur, quae ad hujusmodi damnationem requiritur." 3 From what has been said, it is plain that, even after the trial is closed, the ecclesiastical judge should take sufficient time to frame the sentence with great care and prudence, before he pronoun- ces it.
§ 2. Formalities of the Sentence.
2096. It is for the purpose of preventing the ecclesiastical judge from pronouncing final sentence, inflicting punish- ment or censure, without duly taking into consideration what has been said above, that the law has always com- manded, and still commands him, to observe certain formalities when he pronounces such sentence. As in a number of other matters, so also in the trial and sentence by which correctional punishments, especially excommnni-
1 Pellegr., 1. c, n. 4. z Supra, n. 1205 ; Cf. Pellegr., 1. c, n. 3. 3 Art. xliv.
( orrectional Punishments, also in tin ( >nt joi
cation, were inflicted, the Church adopted the judicial
i< ii in. iMt k i oi the Roman law. Thus St. G \ the
( 1 1 eat .in i he I nsf < uct ions w hi< h hi his l< a h< >m
he sent to Spain, in ordet to decide various judicial contro versies that had arisen there, point to the formalities whu h must be < >bsei ved, according to the Roman law, b) lar
judges, when they pronounce final sen and i
col 11 ma i ids hi in to observe them in passing juridical sentem as an ecclesiastical judge, in ecclesiastical < .'
2097. It is, then, safe to assume that, from the time oi Pope Gregory the Great, ecclesiastical judges were bound, in passing sentence of excommunication, or suspension, or interdict, to observe all the formalities which the Roman law, and, afterwards, the canon law, prescribed for the pronouncing ol all final judicial sentences whatever.* These formalities arc still obligatory, and form the present law of the Church. They differ slightly, according as the trial is formal or merely summary. We have already fully ex- plained them above, under No. 1174 sq.
2098. Although these regulations were designed to prevent hasty and inconsiderate sentences, yet, as Kober * testifies, it came to pass that many censures were unjustly inflicted, for the reason that some Prelates pronounced sentence, inflicting these severe punishments, without taking duly into account the circumstances of the case, and without observing the laws of justice and equity. These abuses and injustices were brought before the Gen- eral Council, held at Lyons, in 1245, by Pope Innocent IV. The Council was urged to remedy these evils. According- ly, that body took the matter into serious consideration, and, in its celebrated decree, called Cum Medicinalis 1, de sent. exc. in 6° (v. xi.), issued strict regulations, enjoining upon Prelates, in passing sentence of excommunication,
1 Can. 7, c. ii., q. I ; Kober, Excom., p. 169. 2 lb. 3 lb... p. 170.
202 Formalities observed in inflicting
suspension, or interdict, the obligation of observing most carefully the formalities already in force, and adding new ones. ■
2099. This constitution still forms the law of the Church, and is, as we shall see, re-enacted in the Instructions Sacra ILcc and Cum Magnopere. It enacts, under severe penalties, that the sentence should not only be in writing, and that a copy of it should be given the accused, if he asks for it, but, moreover, that it shall state clearly and distinctly the particular crime or act for which the censure is imposed, in order that it may appeal", from the sentence itself, whether the crime is sufficiently grave to deserve so severe a punish- ment as a censure.2
3000. This latter regulation was a new enactment;3 for, prior to this law, ecclesiastical judges were not bound, even in criminal causes, to set forth, in their final sentence, the reasons or crimes for which they imposed punishment. 4 At the present day, ecclesiastical judges must state the offence in their sentence, not only when they inflict censures, but also in all other sentences by which they impose a vindi- catory punishment.
3001. We have, thus far, given a brief and imperfect outline of the legislation of the Church on the question under discussion. It now remains to group together and briefly explain the various formalities which were enacted from time to time, and which are still to be observed at the present day, in the pronouncing of final penal sentence, not only in formal, but also in summary trials. & These formali- ties of the final sentence in question, are chiefly: 1. It
1 Kober. Excom., p. 172.
1 lisquis igitur excommunicat .... causam excomrmtnicationis expresse con- scribat, propter qicat?i excomi7iunicatio proferatur." Cap. Cum Medicinalis, I, de sent, excom. in 6° (v. n).
; H>. * Cap. 16, de sent. (ii. 27).
1 These formalities are the same, no matter whether the sentence inflicts a censure or a vindicatory punishment.
( omctional Pun nts, also in the UniUd
must be drawn up in wt iting . otherwise , it will be Im alii
h should be ready nol merel) handed <n sent, to the accused ; otherwise, it is void, For, a ( rdinal de
I an .1 I in »l suIIk km! I liiil it be iii wnl Ing ; n
moreover, necessar} that it shall \>< n id from the papei written out beforehand. Hence the sentence which, though in writing, is simply handed 01 s< ni to the defend* ant, without having been first read and thus published to him, is invalid.4 In Lik< manner, the sentence which is pronounced, indeed, in the presence oi both panics, but which was noi written out beforehand, is invalid. ■ For, the Roman law adopted by tin- Church says: " Huic adjicimus sanctioni, ut sententia, quae dicta fuerit, cum scripta non esset, nee nomen quidem sententiae hab< mereatur." •
3003. — 3. It should be pronounced by the judge himself, 4. and that in the presence of the parties, — i.e., of the prosecu- tion and the defence, unless they are contumaciously absent. There loir, if the sentence were pronounced in the absence of the accused, it would be invalid, 7 unless the latter were contumaciously absent. 5. Wherefore, also, the accused must be cited to hear the final sentence, as explained already ; 8 otherwise the sentence would be invalid. 9 6. It must be pronounced on the day, at the hour and place designated in the citation sent to the accused to hear the final sentence ; otherwise it would be invalid, since it would be regarded as having been pronounced, non cit at a parte.™ Where, however, the defendant, though properly cited, is contumaciously
1 L. Statutis 3, C. de sent, ex per. (7, 44) ; Cap. Cum Medicinalis cit. * L. Statutis cit.
3 Card, de Luca, 1. 15, de jud., disc, xxxvi., n. 7, 8, 10, Venetiis, 1734. A Pellegr., Praxis Vicar.. P. ii., S. iii., Subs, i., n. 65, Venetiis, 1706.
6 Konig, Jus can., 1. ii. , t. 27, n. 48. 6 L. 3, C. de sent, ex per. (vii. 44.)
7 L. de unoqnoque ft", de re jud. ; Pellegr., I.e., n. 27. s Supra, vol. ii., n. 1 1 74.
9 Cap. Ditdum 2. de elect. ; Pellegr., I.e., n. 15, p. 174.
10 L. aut qui aliter, ff. quod vi; Pellegr., I.e., 176, n. 27.
2Q4 Formalities observed in inflicting
absent, the ecclesiastical judge can pronounce the sentence at any time, after the time fixed for the sentence in the citation has expired.
3004. — 7. It must state the crime or act for which the punishment is inflicted. This has been sufficiently explained already.1 8. It should not be pronounced on Sundays or holy-days of obligation ; otherwise it would be invalid. ■ 9. Finally, a copy of the sentence must be given to the person condemned, if the latter asks for it. This copy must be properly authenticated and correspond word for word, both as to date and contents, with the orignal. See above Vol. II., Nos. 1174-1184.
^ 3. Formalities of Sentences in the United States.
3005. Q. What formalities are to be observed in the United States, by Bishops or Vicars-General, when they pronounce a final sentence imposing a censure or correc- tional punishment?
A. We have said above that the formalities there described are to be complied with, not only in formal, but also in summary canonical trials. From this it would seem to follow, as a matter of course, that these formalities must also be observed by ecclesiastical judges in the United States, where the Instruction Cum Magnopere obtains. For the trial prescribed in this Instruction, though a canonical trial in the strict sense of the term, partakes more of the summary than of the formal canonical process. However, all doubt in the premises is removed by the Instruction itself. For, as we say above, it virtually re-enacts the formalities prescribed by the general law of the Church.
3006. In fact, the enactments contained in this Instruction regarding the pronouncing of final sentences are : I. " Turn omnia (acta etc.) ad Ordinarium remittuntur qui, ubi in
' Supra, n. 1181, 1182. ; Schmalzg., 1. 2, t. 27, n. 61. 2 Supra, n. 1180; Pellegr., I.e., n. 22.
Com tiona I Punishments t also in t>: I fnx
plenam cam ^nitioncm dcvencrit d in qua
lentent ia di< < nda i * l \\ Best it uta di< ab Epi copo i el
\' u .11 id ( unci .ill, | -I aesentc pro< uratorc fisi ali Bcntentia pronun< iatur, ejusque pars di positiva llario
dictatur, expressa mentione facta, si damnationi sit \<>< Banctionis canonicae quae contra imputatum applicator." ' 3. •• Sentent la reo inl imef m
3007. Now, from these dispositions, it is plain that the ecclesiastical judge In the United States Is obliged to observe the following formalities, In pronouncing final sentence by which he inflicts a correctional punishment.4 1. The sentence shall be drawn up in writin 2. read in court and dictated to the chancellor oi • ary, ' 3. in
the presence of the dio< esan prosecutor and the defendant's advocate.1 The defendant himself may or may not be present, as he chooses. 4. Hence both the prosecutor and the advocate of the accused are to be invited or cited to appear in court at the time and place specified, to hear the final sentence pronounced.
3008.— 5. According to the instruction Sacra Here of 1S80, of which our Instruction Cum Magnopere is, with but few- exceptions, an exact copy, the prosecutor and the defend- ant's advocate, on appearing- in court on the day fixed for the final sentence, can plead their respective cause orally before the court, prior to the pronouncing of final sentence. Thus the Instruction Sacra Hcec says : {a) " Qui (ordinarius) diem constituit in qua disceptanda et resolvenda sit (causa). " 8 (b) " Die constituta proponitur causa coram Vicario Generali, interessentibus Procuratore fiscali, defensore et Cancellario." 9 (c) "Post votum Procuratoris Fisci et deduc- tiones defensionis profertur sententia, etc." 10
1 Art. xxxin. 2 Art. xxxiv. 3 Art. xxxv.
4 The same formalities are to be observed in the sentence inflicting vindicative penalties.
6 Art xxxiv. 6 lb. 7 lb. 8 Art. xxxiii. 9 Art. xxxiv. 10 Art. xxxv.
:?o6 Formalities observed in inflicting
3009. In our Instruction Cum Magnopcre, this is not allowed, special provision being however made in Article XXXIII.,1 whereby the aforesaid final arguments or plead- - shall be made beforehand, and that in writing. The Instruction Cum Magnopere, as originally drawn up for the United States, and shown to our Prelates assembled in Rome in November 1883, did not differ in regard to the matter under discussion from the enactments of the Instruc- tion Sacra H&c. It was changed to its present wording at the suggestion of some of our Prelates, who represented that the oral pleadings of the parties or of the advocates tnight give rise in the United States to an odious class of ecclesiastical advocates, whose interest it would be to multiply controversies, and draw them out to an indefinite length of time.
3010. — 6. It shall expressly state the offence for which the punishment is inflicted. 7. It shall also expressly mention the particular law of the Church authorizing the infliction of punishment in the case. For, as has been shown, 2 no offence can be punished by the ecclesiastical judge, unless it is expressly designated by an ecclesiastical law as punishable. 8. It shall be pronounced at the time and place designated in the citation for sentence. 9. Finally, a copy of the sentence, properly authenticated, and corres- ponding word for word with the original, is to be sent to the person condemned, in the manner described in Article XIV. of the Instruction Cum Magnopcre.
301 1. As already remarked, these formalities are obliga- tory, not only in sentences by which censures are inflicted, but also in sentences by which vindicatory punishments are imposed. For the Instruction Cum Magnopere lays down
1 The words are: " Postquam Procurator fiscalis suas conclusiones ediderit, esedem deiensori rei communicandse sunt ut ad easdem, si placuerit, in scriptis respondeat."
* Supra, n. 1699.
( ornctional Punishments x <r/.s<> in the ( Tnited Stati
the mode oi procedure whi( h is to b< ob erved in inflictii both correctional and vindicator} punishrai nts.
8 .}. Penalties incurred foi violating these Formalitu
301 2. Here it mai be objected that, in the opinion of a number oi canonists, three oi the above formalities, namely, {a) that the sentence be in writing, (b) that the crii be set forth, (< | and that an authentic cop} ol tl nten< e be given to the person condemned bind only on pain ol mortal sin and illicitness, but not invalidity, of the sentem when there is question merely oi inflicting correctional punishments, i.e., censures, and not vindicatory. Before answering this objection, we remark that all canonists agree that the Bishop or ecclesiastical judge who presumes to violate any of these formalities commits a mortal sin, nay, a very grievous mortal sin, being guilt)' of a violation of a grave and very important law of the Church. On this head there is no doubt, no controversy. In fact, Pope Innocent IV., bv whom the formalities are prescribed, in the celebrated Constitution Cum Medicinalis, inculcates their observance in so strict and solemn a manner, and decrees such severe punishments against ecclesiastical judges who presume to violate them, as to leave no doubt whatever on the subject.
3013. We shall now answer the objection. It is true that a number of canonists hold the above opinion. 1 Their chief argument is, that Pope Innocent IV. states in the Cap. Cum Medicinalis, that a person who is visited with censure, without the above formalities, shall, upon having recourse to the judge of appeal, v.g., to the Metropolitan, be imme- diately released from the sentence. Hence, they say, the sentence in the case, though grievously sinful and illicit, is not invalid, otherwise there would be no necessity for
1 Cf. Craiss., n. 6417
20S
Formalities observed in inflicting
authorizing the judge of appeal to revoke it. But it is also true that the opposite opinion, which is maintained by Kober and other eminent canonists, and which teaches that the formalities in question bind, on pain of nullity of the sentence and the punishment inflicted by it — seems based on much sounder arguments and, consequently, much more probable. In fact, the law, {i.e., not only the Cap. Cum Medicinalis, but also the Instruction Cum Magnopcre, of 1884), expressly prescribes these formalities, and that for good reasons, as we have shown. The ecclesiastical judge who disregards them oversteps the bounds of his legitimate authority. Hence the following principle of canon law applies: " Quae contra jus hunt, debent utique/r^ infectis Jiaberi" l
3014. And in reality, as we have seen, both the Roman and the canon law expressly declare that all judicial sen- tences whatever, {conseqiicntly, also those which impose censures^) which are pronoujiced without the prescribed formalities, as explained above, are null and void. Why the sentence im- posing excommunication, or suspension, or interdict, should form an exception to this rule, especially when one remem- bers that the law nowhere makes the exception, seems incomprehensible, particularly when we call to mind that these censures are most severe punishments, and that, consequently, it must be a matter of grave solicitude to the Church to see that these sentences are not pronounced without mature deliberation, and therefore, not without the prescribed formalities. In fact, how much importance the Church attaches to these formalities, and how anxious she is that they should be carefully observed, is manifest from the strict and peremptory manner in which she orders them to be observed, and from the severe punishments she
1 Reg. 64, de Reg. jur. in 6° (v. xii.) ; Barbosa, coll. in I. 5, sexti Deer., Reg 64, explaining this rule, says : Paria enim sunt invalide fieri, el non fieri ; a cjn in : actus enim corruii, omissa forma legis.
Correctional Punisknuntsy also in the l nited Statss*
mllu l S | hi I Ik » l< i.r I k ,il jui I"' w ho d.n C tO \ ioifttC
them, '
3015. Besides, the argument ol those who hold the oppo
site view imk>I C0ncltisiv< I 01 the pin .isc oi Pope I mi'K ( lit
1 V., Snp( 7 tot veto } ad quern recurritur, sententiant ipsatn sine difficultate relaxans% </<.,'' means simply that, when a sentence imposing a censure is pronounced without the formalities in question, the person so sentenced cannot, as
a rule, of his own accord, or by his own private authority, consider it invalid and disregard it, but that he should leave the decision to the Superior, that is, to the judge oi appeal,
to whom he should have recourse, wit h the request that the sentence be declared null and void. The Interests of order and authority evidently require that a person who is pun- ished should not, except for very grave reasons, take it upon himself to disregard a sentence", even though null, ex- cept where it is patent to everybody that it is invalid. I I- should, therefore, as a rule, apply to the judge of appeal, in order to have the nullity of the sentence officially declared by him. 3
3016. Q. What are the chief punishments incurred by ec- clesiastical judges, also in the United States, who presume to disregard all or any of the above formalities, prescribed by Pope Innocent IV. in the Constitution Cum Mcdicinalis ?
A. The following : 1. The person censured should, at once,4, i.e., without being required to make amends, or to give any assurance of amendment, and without any previous examination of the merits of the appeal, be absolved of the censure by the person to whom he appeals. Whether this enactment has been modified by the decree of Clement
1 Cap. Cum Medicinalis cit. '2 lb.
3 Kober Excora., p. 176; Id., Susp., p. 63.
4 The Glossa, v. dijficullate in cap. Cum Medic, explains this as follows : " Id est, quod sine mora, sine satisdatione, sine causae cognitione. et sine aliquo ex- communicati gravamine, hoc {i.e., relaxatio excommunicationis), fieret, cum evidenter appareat, contra hanc Constitutionem latam fuisse."
2 io Formalities observed in inflicting
XIII., issued in 1600, we shall discuss further on. 2. The Bishop, or ecclesiastical judge, who is guilty of violating any of these formalities, is to be condemned by the judge of appeal, (a) to pay all the expenses, with interest, incurred by the accused, (b) and to undergo other punishments, as the judge of appeal may see fit to inflict. All this is express- ly enacted by Pope Innocent IV., in the Cap. Cum Medicinalis already quoted : " Si quis autem judicum hujusmodi constitutionis temerarius extiterit violator .... Superior, ad quern recurritur, sententiam sine difficultate relaxans, latorem excommunicato ad expensas et omne interesse condemnet, et alias puniat animadversione con- digna, ut, poena docente, discant judices, quam grave sit excommunicationum sent entias sine maturitate debita fulminate."
3017. Pope Innocent IV. inflicts, moreover, ipso facto, the " interdictum ab ingressu ecclesiae " and the suspension " a divinis officiis" for one month. But, according to Crais- son, ! these two latter punishments, not being mentioned in the Const. Apostolical Sedis of Pope Pius IX., are now abolished. They never fell upon Bishops, but only upon inferior judges, such as Vicars-General. The reason is that Bishops are not expressly mentioned in the Cap. Cum Medicinalis. 2
3018. What formalities must be observed in missionary countries, where, for instance, neither the recent Instruction Sacra Hac of 1880, nor the older general lawNof the Church in regard to trials has as yet been introduced ? In these countries, the formalities which are dictated by the natural law must be complied with. Accordingly 1. a trial, in which all the substantial formalities of trials are observed, must precede the sentence or punishment ; 2. the sentence itself or the infliction of the punishment is to be (a) in writing, at least, on pain of mortal sin, (b) state clearly and fully the
1 Man., 6418. % Cap. 4 de sent, exc, in 6° (v. 11).
( orrtctional Punishments^ also in tin I rnited Sta i \
offence foi whi< h the punishment ii infli( ted, (< I and
den l\ i he pai i uul. 1 1 punii hment infli< ted.
^ 5. Wording <>/ the Senten
3019. Wording of the sentence \ also in the United States* — Mo particular form or wording is prescribed foi the senten The latter is valid, no matter what ma\ be its form 01 wording, provided the conditions or formalities, already described be complied with. The Roman Pontifical (P. [II.) gives a formula, winch, however, weed not he adopted. Pellegrino, in his Praxis Vicariorum, says that 1 wording should be such as to state not only, as was seen the crime and the Canonical sanction, etc., hut also, (a) the name of the judge, and whether he is an Ordinary or delegated judge ; (/>) the names of the litigants, i,e., of the diocesan Prosecutor and of the defendant, when there is question of criminal and disciplinary causes with us, (c) the fact that the prescribed canonical admonitions, the precept, and trial were duly given to the accused, so that it may appear on the very face of the sentence that the prescribed juridical formalities were all duly observed.
3020. Hence the sentence should, for instance, read thus: Considering the charges made against N., considering that the previous admonitions and precept were duly given the accused ; considering, moreover, that a full trial was granted to him as prescribed, — v.g., in the Inst. Cum Magnopcre ; having maturely and fully weighed and taken into account the proofs and allegations of the prosecution and defence submitted during the trial ; having considered all that is to be considered, we find the crime charged against the accused — to wit — repeated drunkenness — on such and such days, and at such and such places — fully and canonically proven, and we hereby condemn N. for this crime, to suspension, etc. ■
1 Pellegr. 1. c, p. 175, n. 21; lb., p. 181, n. 72.
2 1 2 Formalities observed in inflicting
§ 6. Publication of the Sentence.
3021. By publication {denuntiatio censures) we here mean the act of the proper Superior, by which the censure incurred by a person in foro externo is made publicly known. We say, in foro externo; for censures which are incurred only in foro interno cannot be published. Now a repressive correctional punishment is not incurred, and therefore, does not hold in foro externo, except when it is inflicted by a trial and judicial sentence, condemna- tory or declaratory. Consequently, censures cannot be published, save when they have been preceded by a trial and judicial sentence. The only exception to this rule is when the censure has been notoriously incurred. But, as we show elsewhere, the trial is, practically speaking, necessary at present, also in notorious crimes.
3022. Nowhere does the law of the Church prescribe that the sentence inflicting a correctional punishment, or the fact of a censure having been incurred by a person, must be generally published. On the contrary, the cases where the law of the Church directs such publication to be made — v.g., Clem. 2. de poenis, (v. 8), are to be regarded as excep- tions to the rule. However, there is no doubt that the Bishop or ecclesiastical judge can, nay, sometimes should make this publication, when the circumstances of the case, —v.g.y the enormity of the crime, the scandal given, the danger of others becoming corrupted, and the continued obstinacy of the delinquent, render this step useful or necessary. 1
3023. The object of the publication is twofold : (a) to cause the offender to return more speedily to the path of duty by means of the confusion and disgrace brought upon him through the publication ; (b) to oblige the others to shun him in matters in which the censure requires it.
1 Arg. cap. Pastoralis 53, de appell. (ii. 28); Kober, Suspension, p. 65.
Correct Hona I Punishments also in the United r. 213
Hence, when the Superioi knows thai the person 1 n ured has already reformed and been absolved, inforo inttrnot he should not make the censure publicl) known.1 The publication, which is simply an annex 01 1 omplemenf of the censure itself, can be repeated frequently. Thus, in the Cap. 1, de peenis in Clem. (v. 8), it is ordained that a person guilty oi a certain crime should be excommunicated, and the fact of his having been excommunicated should be announced in the churches and other public places, every Sunday and holy-day 1 till the offender had made satisfaction.
3024. The mode and extent o\ the publication arc left to the discretion oi the Bishop or judge, Thus, so far as the extent of the publication is concerned, the ecclesiastical judge may publish it either in the whole diocese, or simply in the parish of the person censured, or only in the cathe- dral. Likewise, as to the Dimmer, the Bishop is free to have the publication made by public announcement in the church during divine service, or by having it posted at the doors of churches or other public places, or even pub- lished in newspapers. 2
3025. By whom is the publication to be made? The publication is an act of ecclesiastical jurisdiction, no less than the infliction of the punishment itself. Consequently it can be ordered only by the competent judge or Bishop, and that even where it is notorious that a person has incurred a censure. 3 When a person has ipso facto incurred a cen- sure a jure, the right to make the publication belongs to the Bishop of the place where it has been incurred, or to the Ordinary of the domicile of the offender. 4 But in this case, as in all other cases, it is always left to the conscience and prudence of the Bishop or judge, to publish the censure or not.
3026. In case the Bishop or judge does not wish to make
1 Kober, Excom., p. 179. 2 lb. p. 180.
* lb. 4 Arg. Can. 5, c. 6, q. 3.
214 Correctional Punishments \ also in the United States,
the publication in person, he can depute others to make it for him. Thus a Bishop may appoint the parish priest of the person censured to announce the censure from the altar or otherwise publish it. Here the question arises : Is an inferior, v. g., a parish priest, whom the Bishop deputes to make the publication, bound to obey, and to make the pub- lication ? He certainly is, as a rule. x We say, as a rule ; for where the inferior knows from the allegata et probata, i. e.y from juridical documents or acts, and where consequently he can prove juridically, that the censure in the case is unjust or invalid, he need not, nay, he cannot make the publication. 2 But where he knows the censure to be unjust, only from private information, and cannot prove it juridically, he must execute the orders of the Bishop or judge and make the publication, unless he can induce the judge to excuse him from the task. 3
3027. Finally it is asked : Does an appeal against the cen- sure or its publication, made after the censure is inflicted, but before it is made public, hinder the Bishop or judge from proceeding to the publication. We shall give the answer when we come to treat of appeals against censures.
1 Cap. 28 de off. del. (i. 29.) * Craiss., Man., n. 6423. 8 Kober, 1. c, p. 181.
CHAPTER VII.
APPEALS AGAINST REPRESSIVE C0RRE4 riONAL PUNISHMEN1
Art, I. Is it (Mowed to appeal against these Punishments?
3028. It is superfluous to say that it is allowed to appeal against all censures or correctional punishments, whether
Of excommunication, suspension, or interdict, no less than against other punishments and grievances; upon this point, there is no dispute whatever.1 This righl oi appeal is not only conceded by the express law of the Church, as in force at present, but is, moreover, based on the very law of nature. For it is part of a just self-defence. In fact, the object of an appeal is to prevent an innocent person from being visited with punishment, injustice, or wrong. Now it is unanimously admitted that repressive correctional pun- ishments are severe punishments.
Art. II.
Effects of Appeals against Censures already inflicted.
3029. Ordinarily appeals against vindicator}' punishments have not merely a devolutive, but also a suspensive effect ; that is, they not only confer upon the judge ad quern the power to re-examine the case and to revoke, modify, or ratify the sentence of the first instance, but, moreover, cause the sentence to remain inoperative, i. e., cause its execution to be stayed until the higher judge has given his decision
1 Cf. Leur., for. eccl., 1. 2, t. 28, q. 1089, n. I.
216 Appeals against
on the appeal. The reason is, that the execution require a new order or decree on the part of the judge. Now he cannot issue such new decree, after the appeal has been interposed, since his jurisdiction is suspended by the appeal, in regard to the cause appealed. *
3030. The case is different with appeals from correctional punishments or censures, when interposed after the censure has been already inflicted. Such an appeal produces, as a rule, merely a devolutive, but no suspensive effect, as has been seen above,2 since a censure executes itself and con- sequently its execution does not require any new act or decree on the part of the judge by whom it was inflicted. Hence it produces all its effects the very moment it is validly and justly pronounced or inflicted. 3
3031. We say, as a rule\ for in certain cases the appeal has a suspensive effect, even when it is interposed after the infliction or fulmination of the censure. Thus, according to the common opinion of canonists, the suspension and interdict a temporalibus, and not merely a spiritualibus, admit of a suspensive appeal, even after they have been actually inflicted. 4 In other words, when the suspension or inter- dict produces effects which are not purely spiritual, but partake of a temporal character, the appeal, even when interposed after the suspension or interdict has been in- flicted, suspends the effect of the latter.
3032. Consequently an appeal against a suspension a beneficio produces a suspensive effect, even when interposed after the suspension has been already imposed. Hence the person who is thus suspended and who has appealed can continue to receive his salary or the income of his office, parish, (or, with us, mission) and to administer its tempo-
1 Kober, Excom., p. 224. ■ Supra, vol. i., n. 446.
3 Cap. 20, de sent. exc. in 6° (v. 11) ; Cap. 37, de app. cum Glossa, id., v. in- terdiotum ; Cap. 5-^ de app. (ii. 28).
4 Leur., for. eccl.. 1. 2, t. 28, q. 1089, n. 10.
R$pn I tional Punishments, 17
r.-ilitics, until ill- highei Supei ioi 01 ji oi appeal h
decided 1 he - rhc same hold \ tru< oi appeal n 1
1 Bitspen i< 'M "i intei di( 1 w hii h foi bid I h< 1
pos mi oi .in offi< e 01 benefice ; [b) the pi h »i irotii
oj hem- voted foi . at e< < lesiast ical election ; (c) the cise oi Pontificals; {d) the use oi the pallium; (e) and other acts or 1 ights oi a similar charactei . I n all the I he
appeal is suspensive, though made after the infliction ol the censui 1
3033. One oi the reasons, as wt have seen, is, that the effects of these correctional punishments are not oi a purely spiritual character, but extend to external^ material, and tem- poral interests. Now, as has been observed, punishmen which arc not of a purely spiritual nature in their effects do not execute themselves, but nerd a new decree {decretum executionis) apart from the final sentence by which the punishment is inflicted. But this new decree cannot be issued pending the appeal.4
3034. A second and perhaps more cogent reason is this : Whatever is contrary to the ordinary and general law ol the Church must be strictly construed. Now, according to the general law of the Church, as still in force, an appeal lawfully made against a sentence that has been passed produces a suspensive effect. Hence the disposition of the Cap. 20 de sent. exc. in 6° (v. u.),5 which enacts that an appeal against an excommunication, as also against a sus- pension ab officio divino or ab ingrcssu ecclcsice, when made after the censure has been inflicted, has only a devolutive but not a suspensive effect, must be restricted to those specific censures which are expressly mentioned in this
1 Schmalzg., 1. 2, t. 28, n. 24. 2 jBouix, de jud., vol. ii. p. 255.
3 Stremler, 1. c, p. 308. * Kober, Susp., p. 84.
6 The words of the decree are : " Sane sicut excommunicatio, sic ab officio vel ab ingressu ecclesia? lata suspensio, aut ipsius effectus, per appellationcm sequentem minime suspenduntur."
218 Appeals against
decretal — namely to excommunication and to that suspen- sion which is ab officiis divinis or ab ingressu ccclesice, and cannot be extended to any other kind of suspension or interdict. '
3035. Consequently the Glossa,2 commenting on this decretal, says : " Et intelligas proprie de suspensione ab ingressu ecclesiae, vel divinorum : quia in suspensione a tcmporalibus, puta ab ingressu possessions beneficii, non haberet hoc locum. Talium enim suspensionum vel in- terdictorum effectus bene snspenditur per appellationem scquentem. . . . Puto igitur solum in his mere spiritualibus, per quas ligatur anima decretalem hanc habere locum."
3036. Again, Kober3 maintains that an appeal interposed after the censure has been inflicted, even where the censure has purely spiritual effect, v.g., suspensio a divinis, produces a suspensive, not merely a devolutive effect, when the censure is inflicted, not as a correctional punishment or censure, but as a vindicatory punishment, since the censure thus inflicted is placed on the same footing with vindicatory punishments, and is governed by the same laws. 4 Of course, this princi- ple can apply only to suspension and interdict, since they alone can be inflicted as vindicatory, and not merely as correctional punishments.
3037. Nay, an appeal against any censure, whether of excommunication, suspension, or interdict, made after the censure has been already inflicted, even though it has been inflicted as a medicinal punishment, and even though it pro- duces spiritual, and not merely temporal effects, has a suspensive effect, when the appeal is interposed ex capite nullitatis, i.e., on the ground that the censure is invalid and not merely unjust. This is expressly declared by Pope Bene-
1 Leur., 1. c. ; Kober, 1. c, p. 84. 2 V. Sequentem.
3 Susp., p. 86. Kober here quotes Stre}k and Pirhing, 1. 2, t. 28, n. 48, as favoring this opinion.
4 St. Liguori. 1. 7, n. 314.
R$p% rational Punts km *t 119
diet XI V., in his celebrated Const. Ad Militantisoi ij
Now , as w .1 een, 1 bis provi l< >n, a w ell as of hi I s;ii«l Const. Ad Mill nun is, is laid down in the Instruction ffacoi [880, and Cum Magnopere, oi is, the Ian 01 rule
to be followed in appeals at the present day, 01 1 ourse, an appeal which is made« capite nullitatu takes if foi granted that the nulliu oi th( ure is doubtful* For, where if
certain thai the censure has been invalidly infli< ted, it is not necessarj foi the person censured to appeal in order to have the censure declared invalid, since he can, oi his own accord, disregard it, and that even publicly, when the nullity is publicly known. '
303S. Finally, when the correctional punishment is in flicted a jure and is lata sent xentia \ it is incurred, as we ha seen, in the internal forum, by the very commission of the crime itself, — i.e., ipso facto, without any juridical formality whatever. But in the external forum a declaratory sen- tence is required. Against this declaratory sentence it is allowed to appeal, and that not only in devolutive, but also in suspensive," so that the appeal in the case suspends the effect of the declaratory sentence, and hinders its publica. tion. :' This has reference to a declaratory sentence, afta it is pronounced.
3039. Does it also apply to a declaratory sentence which is merely threatened? In other words, is it allowed to appeal against the mere threat, on the part of the ecclesiastical judge, that he will proceed to pass declaratory sentence ? There are two opinions. Leurenius4 holds the affirmative. He maintains that if, for instance, a person were cited by the ecclesiastical judge to hear sentence pronounced, by which he is declared as having, v.g., incurred excommunica- tion or suspension, and if this person meanwhile appeals
1 Schmalzg., 1. 5, t. 39, n. 115; Craiss., n. 6430, Arg. cap. 2 de sent, et re jud ii- 27). - Lear., 1. c. . q. 1090, n. 1. 3 Stremler, 1. a, p. 417. « L. c, n. 2.
220 Appeals against
against this threat, this appeal will produce a suspensive effect, and, consequently, prevent the judge from validly pronouncing the declaratory sentence or publishing it. Stremler,1 on the contrary, teaches the opposite. According to him, no suspensive appeal lies against the declaratory sentence in the case, which is merely threatened, but not yet pronounced. The reason assigned by him is, that the declaratory sentence does not inflict an irreparable injury, considering that it admits of a suspensive appeal after it is pronounced, which rights all and hinders the publication.
Art. III. Appeal against the Publication of Censtcres.
3040. We have just seen that it is allowed to appeal against the publication of a declaratory sentence, in the case of censures which are a jure and latce scntentice, and that such appeal has a suspensive effect, and therefore, hinders the publication, or annuls the effect of the publication if made notwithstanding the appeal. We now ask whether this applies to the publication of correctional punishments, inflicted ab hominc, and that per scntentiam particularem ? In other words : Let us suppose that a Bishop or ecclesiastical judge inflicts a censure upon a subject. The latter appeals against the punishment, or, also, fearing lest the judge will officially publish it, appeals directly against the proposed or feared publication. Is it allowed to appeal directly against the proposed publication ? And if so, what effect has the appeal? Again, what effect upon the publication has the appeal interposed, not directly against the publication, but simply against the censure?
3041. So far as regards appeals made against the censure itself, and not directly against its publication, we must dis-
1 L. c.; p. 417.
R$pn (tonal l*ituts htnents*
tinguish bet w ecn appeal i hal hai c a fleet, .1 n« i
those w hu h h.i\ C ni'i < l\ W h( I C 1 he app' &l
has a Buspen ffe< i. it hindei the eccl( al judj i
has been Bhown, from validl) Inflicting and, equentl also from validly publishing .1 censure. Heno an app< interposed against .1 censure which Uened%o\
linst .1 censure which, though already inflicted^ ye\ adi oi a suspensive appeal, prevents the valid publication ol 1 punishment. Consequently, it is not necessary, in this 1 to appeal directly against the publication.
\\ Where, nowever, the appeal against the censure itseli has but a devolutive t, there are two opinions
to the bearing which such appeal has on the publication. Kober1 and some other canonists affirm that, as this appeal docs not prevent the censure from taking full eff< neither dors it hinder the publication of the censure. For, they say, the publication of a censure is merely an adjun a complement of the censure itself, and does not add any- thing to the* censure, but simply makes its existence known. They confirm their view from the enactment made by Pope Innocent III., (1214^ which enjoins expressly : "Consuluisti nos, utrum si quis excommtinicationis sententia innodatus, ante denunciationem ipsius ab ea . . . . curaverit provocare . . . . ipse (judex) denunciare possit eumdem (appellantem) ? . . . . Respondemus, quod cum executionem excommunica- tio secum trahat, et excommunicatus per denunciationem amplius non ligetur, ipsum excommunicatum denunciare potes." ■
3043. Leurenius, 3 however, Sanchez, and others hold the opposite view. They argue thus : It is the express law of the Church that no innovation whatever, or change detri- mental to appellant, shall be made, during the time the
1 Excom., p. 185. - Cap. 53, de sent, et re jud. (ii. 27).
3 For. eccl.. 1. 2, t. 28, q. 1090
Appeals against
appeal is pending ;J that the judge ad quern shall, before all
. < ., before even entering upon the examination of the appeal, forthwith revoke and annul anything done by the judge a quo after the appeal has been interposed. Now, they ci mtinue, it is true that, prior to the Const. Ad Vitanda of Pope Martin V., the publication of the censure did not add new force or consequence to the censure, and was no inno- vation pending the appeal. Hence they admit that, down to the time of the Const. Ad Vitanda, the above decretal of Pope Innocent was the law of the Church. But, they say, the case has become entirely changed since the Constitution of Pope Martin was issued. For, by this Constitution, the status of the appellant is materially changed, to his detriment, by the publication of the censure. Indeed, according to this Constitution, an excommunicate becomes, after the publication of the censure, a vitandus, his acts are null, whereas, before the publication, he was merely tolcratus, and his acts were valid. Hence it is evident that, at the present day, the publication makes the censure much more burdensome and causes it to bind much more strictly and fully, and that, consequently, the saying of Pope Innocent III., " Excommunicato per denuntiationem amplius non ligatur" is no longer verified in our altered circumstances, as introduced by the Const. Ad Vitanda. They conclude therefore that, at the present day, the appeal in the case hinders the judge from validly publishing the censure.
3044. Nay, they contend that it is allowed to appeal directly against the proposed or future publication of the censure after the latter has been already inflicted, and that, by this appeal, the publication is suspended, so that it cannot be made, or if made, is invalid. 2
3045. Of these two opinions, that of Leurenius seems to us, at the present day, the true, and, in fact, the only safe one to follow. For, as we shall see later, when we come to speak
1 L. I ff. Nihil innovari (49. 7) ; Cap. 7 de app. in 6° (7. 15.) 2 Lcur., 1. c.
AV/»/, i nal Pun is Ami i
< >l the Const. /'/ / 'itanda ol Pope M.n i • i \ ., which fori the present law ol the Chun k prioi to thi ( u i titution, censures produced the same effect, irhethei thej were pub- lished 01 not. rhe publication pdded no n( additional effects. But, aftei I his ( !< »" i ii uf Ion, the effect ol the censures was greath strengthened and in< rea ed by theii official publication. Consequent^ it ma} be said that the legislation oi Pope Innocent III., as laid down in the Const. Praterea 53, de app. has been modified bj the subsequent Bxtntv * Id Vitanda.
Art. IV.
Effect of Appeals against threatened Censures.
3046. Thus far we have spoken of appeals which arc interposed after the censure has been already inflicted.
We come now to those appeals which are made before the correctional punishment is imposed. There is no doubt whatever, that, as was seen above,1 it is allowed, at the present day no less than formerly, to appeal against a censure which is not yet inflicted, but is merely threatened or impending, and that such appeal has not only a devolutive but also a suspensive effect. This is the express, clear, and distinct law of the Church, as fully in force at the present da\', also with us, and as endorsed bv the unanimous opinion of canonists. In fact, Pope Celestin III., (1195) en- acted : " Pneterea requisiti fuimus, si quis judex ita protulerit sententiam : Nisi Sempronio intra 20 dies satisfeceris, te excommunicatum, vel suspensum aut interdictum esse cognoscas : et ille in quern fertur sententia, medio tempore appellans, ad diem statutum minime satisfecerit, utrum ille sententia tali ligetur, aut interposita appellatione tutus existat? Videtur autem nobis, quod
1 Supra, vol. i., n. 446.
2 j 4 Appeals against
hujustnodi sententiam appellationh obstaculum dcbeat im liter ■
3047. Moreover, the decree of the Sacred Congregation of Bishops issued by command of Pope Clement VIII. , in 1600, expressly declares that it is allowed to appeal, etiam quoad effect um suspensivum against a threatened or impending censure (a gravamine. . . cxcomuiunicationis comminatce). 2 Pope Benedict XIII. in a Council held at Rome, in 1725, confirmed and re-enacted this decree*. 3 Finally Pope Benedict XIV., in his celebrated Constitution Ad Militantis,* 1742, enjoins the strict observance of these laws, in the following passage : " Ubi vero agatur de censuris jam prolatis, vel de commina- tione. . . censurarum, observetur omnino dispositio dictorum Dccretorum Congregationis Episcoporum sub rec. mem. Clemente VIII., juxta additiones et declarationes praemem. Benedicti XIII."
3048. Now the Instructions Sacra Hcec (Art. XXXVII.) of 1880 and Cum Magnopere of 1884 (Art. XXXVII.) command that, in appeals, the regulations contained in the above Const. Ad Militant is shall be accurately observed. The words of these Instructions are : " Pro appellatione serven- tur normae statu tae a Const, ad MUitantis S. M., Bened. XIV. 30 Martii, 1742." 5 It is therefore certain, beyond a shadow of doubt, that, at present, with us no less than elsewhere, an appeal against a future or threatened censure is allowed and has a suspensive effect; that, consequently, such appeal sus- pends the jurisdiction of the judge a quo, so that he cannot proceed to inflict the punishment. And if he nevertheless inflicts the censure, the latter is ipso jure void, and can be wholly disregarded with impunity,6 both in for o intcrno and in for 0 cxtcrno, since it is imposed by an ecclesiastical judge
1 Cap. 40 de app. (ii, 28.) The same principle is laid down in Cap. 55 de app. (ii« 28) ; Cap, 14, de sent, exc., in 6°.
2 Art. viii., ix. 3 Declar. ad Deer. ix. 4 Art. xlv. 6 Stremler. p. 418. b Leur., For. Eccl., 1. 2, t. 28, q. 1089, n. I.
/w/v, tional Punishi 225
or Superior, whose jurisdiction ha; been suspended bj the appeal. '
\g, I'll is is manifest from the following decision ol Pope Alexandei III., contained in a lettei \<> the Archbishop ol NOik: \ pri< 1 named R. had appealed to the ll"l\ S againsl the Archbishop. Nevertheh making the
appeal, he was excommunicated l>\ the Archbishop. Il< disregarded the excommunication, and said M though he had not been excommunicated, on the ground that it was Invalid, having been inflict< d alter he had appealed. The Pope fully sustained the Priest and de< ided that the censure, having been indicted after the appeal had been interposed, was mill and void, and that, consequently, the Priest 1\. should not be molested or disquieted because he had violated the censure by saying Mass, etc.1 When we come to ask why the Church allows a suspensive appeal against a threatened censure, canonists answer that a cen- sure, once imposed, causes an irreparable harm or injury, since it carries its execution with itself. s
3050. From what has been said, it follows that the appeal against a threatened censure produces a suspensive effect, even though it (the appeal) be rejected by the judge a quo. 4 It follows also that if, for instance, a person were cited to hear sentence (whether of excommunication, suspension, or interdict) pronounced against him, he can appeal, and the appeal will suspend the jurisdiction of the judge, so that he cannot validly pronounce sentence. 5
1 Leur., for. eccl., 1. 2, t. 28, q. 1089, n. 1.
2 Cap. Ad Praesentiam 16, de app. (ii. 28); arg. Cap. 37, eod. The words of the Pope are: " Ideoque mandamus quatenus prredictum presbyterum, pro co quod post excommiinicationem contra appellationem factum divina cantavit, nullatcnus in- quietes, sed ad enm statum teducas omnia in quo erant tempore appellation is emissctj'
3 Leur. I.e.; Stremler, I.e.; Kober, Exc. p. 227 ; Supra, n. 1161.
4 Leur., 1. c. 5 S. C. C. S. Marci, 13 Apr. 1726; Stremler. p. 419.
^26 Appeals against
Art. V.
Procedure before the Judge " ad que m" in adjudicating Appeals against unjust Censures.
3051. We now come to the mode of procedure to be observed in appeals against censures. We have already seen that, by virtue of an appeal interposed against a cen- sure, the Metropolitan obtains jurisdiction to try or re-exam- ine the case appealed to him, and to revoke or confirm the censure or correctional punishment inflicted by the judge a quo. While the Metropolitan, not being the superior plan juris of his suffragans, can revoke censures inflicted by them only when he is appealed to, the Sacred Congre- gations of Rome, having full, ordinary, concurrent, and immediate jurisdiction all over the world, can revoke cen- sures, not only when appeal is made to them, but whenever they see fit to do so.
3052. Q. How should the Metropolitan or judge ad quern proceed in taking cognizance of and deciding appeals in- terposed against censures ?
A. There is question of censures, which are claimed to be either unjust or invalid. When the appellant claims that the censure is unjust, the judge ad quern cannot revoke the censure, or declare it invalid, at the sole assertion, or statements, or proofs of the appellant. He must first hear the parties, that is, not only the appellant, but also the appellee — i.e., judge a quo or his representative. In other words, he must first cite both parties for the trial of the cause appealed, and then proceed to hear or try the case in the presence of both parties, and afterwards pronounce sen- tence, either revoking the censure or confirming it. Thus Pope Innocent IV. decides : " Sententias quoque interdicti vel suspensionis seu excommunicationis in appellantem ab eoaquo appellatum proponitur promulgatas, nullatenus nisi
R$pn ssivi ( ornctu nal Punishments
vocmtis partibm el d< appellatione legitinu constito revocenl aui denunl lent i " '
305.V The decree oi the S. C EE. el RR Ad Talk* (fds (1600), ' which is confirmed bj r<>p<- Benedicl XIV., in his Canst, Ad Militantisx and therefore made <>Mi ton in ilu- Instructions Sacra //<<< <>l [880, and Cum Magnapen oi [884, likewise enjoins: " Censura ecclesi in appellantera prolata relaxari aui nulla declarari | judicem appellationis non possit, nisi auditis partibusy el causa cognita"
3054. The manner In which the trial is conducted is the same as thai in which am- other appeal is tried. In the United States, the trial or hearing of the cause appealed is conducted according to the provisions of the recent In- struction Cum Magnopere* In Catholic countries, not subject to the S. C. de Prop. Fide, the formalities prescribed in the Instruction Sacra Ihcc of 1880 must be observed.
3055. But suppose that, after hearing both parties, i.e., the appellant and the appellee, i.e., the judge a quo or his repre- sentative, v.g.) the diocesan prosecutor, the Metropolitan or judge ad qucm finds it certain that the censure has been justly inflicted ; or he finds it clearly certain that it has been unjustly imposed ; or, finally, he finds it doubtful whether it has been justly or unjustly inflicted : how is he to proceed in each of these three cases ? In the first case, namely, wlicrc it is certain that the censure is just, the judge ad qucm must remit the appellant to the suffragan Bishop who inflicted the censure. And if the suffragan then maliciously refuses to give the absolution from the censure, though properly requested to do so by the appellant, the Metropolitan should himself impart it. 4
3056. In the second case, namely, where it is certain that the
1 Cap. Romana Ecclesia 3, de app. in 6C (ii. 15) ; Glossa in cas.
3 Art. xiii. 3 Cf. Cap. venerabilis 7, in 6. (v. II).
4 Cap. venerabilis 7 de sent excom., in 6°.
228 Appeals against
censure is unjust, the judge ad quem can and should himself revoke it or declare it invalid.
3057. In the third case, namely, where it remains doubt- ful whether the censure has been justly inflicted or not, the judge ad quem has a perfect right, if he wishes, to grant the absolution himself, though it is more becoming that he should remit the appellant to the judge a quo, with the man- date that the latter grant the release from the censure within a brief space of time fixed by him, i.e., by the judge ad quem. l This is at present the universal law of the Church, as in force also in this country. For it is expressly enacted in the above quoted decree of the S. C. EE. et RR. Ad Tollcndas.2 This latter decree was confirmed by Pope Benedict XIII. in the Roman Council of 1725, 3 and also enjoined anew by Pope Benedict XIV. in his Const. Ad Militantis. 4 Now, both the recent Instructions Sacra H&c and Cum Magnopere expressly declare that in appeals the regulations contained in the above Const. Ad Militantis must be observed.
3058. Besides, the Metropolitan or judge ad quem should, if he finds the censure clearly unjust, condemn the judge a quo by whom it was inflicted to pay the cost of the whole proceedings and completely indemnify the appellant. He should, moreover, if he finds that the circumstances of the case warrant it, impose other suitable and proportionate punishments upon the judge a quo. The latter shall be free from punishment, only in case he can prove, that, in inflicting the censure, he acted from error, — v. g., if he shows that he excommunicated the appellant, in contumaciam, believing that the citation had duly reached him, although afterwards, it is shown that it did not reach him. 5 The
1 Cap. Venerabilis 7 de sent, excom., in 6 (v. 11); Kober. Excom., p, 229/ Idem, Susp., p. 137.
2 Art. xii. 3 Ad Deer. xii. Clementis XIII. * § 45- 6 Cap. 48, de sent. exc. (v. 39) ; Glossa, 1. c., v. ex causa trobabili.
wording oi this law, which is in lull force at present,
F< »llow s : ' M Cum ftdversu exi >mmuni< at w era 1 1< ts
excommunicationc constiterit, excotnmunicator condtmtu
ad ini i< ommun nihil iminu
i. is postulaverit superioris arbitrio puniendus , cum non 1<
sit culpa, tantam infligere poenam insonti ; nisi I
erraverif ex probabili causa, maxime si laudabilis opinioi
cxistat
Art. VI.
Procedure before the Metropolitan in Appeals against " Invalid"
c 'ensut
3059. But how is the judge ad quern to proceed in case the appellant claims that the censure Inflicted upon him is not merely unjust, but is invalid? We must distinguish
between two cases; namely between the case where it is certain and undoubted that the censure is null and void, and
the case where it is doubtful whether or not it is invalid.
§ 1. Procedure when the Censure is certainly Invalid,
3060. If it is certain, clearly manifest, and publicly known that the censure is invalid, — r.£\,that it has been inflicted after an appeal had been lawfully interposed, or that any other requirement, condition, or formality prescribed by the Church as a substantial condition, or expressly on pain of nullity, has been set aside by the ecclesiastical judge or Superior, — it may be completely disregarded, not only inforo vitcrno, but also in foro externa, privately and publicly, by the party censured, and that on his own private authority.
3061. Thus Pope Gelasius, writing to the Bishops of the East, decrees : u Sed si injusta (invalida) est sententia, tanto earn curare non debet, quanto apud Deum et Ecclesiam ejus
1 Cap. 48 cit. 3 Cf. Instr. Cum Magnopere, art. xliv; Cf. Kober, Excom., p. 23a
230 Appeals against
neminem potest iniqua gravare sententia. Ita ergo ea se non absolvi desideret, qua se nullatenus perspicit obliga- tum." Here, then, the principle is established that a censure or sentence which is clearly null and void does not bind either before God or in the face of the Church, that is, in the external forum of the Church ; that, conse- quently, the person upon whom such a censure has been inflicted may entirely disregard it, of his own accord and on his own responsibility, both in foro interna and in foro externo.
3062. The same principle is laid down by Pope Gregory, when he says : " Non debet is pcenam sustinere canonicam, in cujus damnatione non est canonica prolata sententia."2 Hence, the Glossa, 3 commenting upon this decree, says : " Si ergo constet tibi, quod sententia judicis est iniqua (invalida) potes judici violenter resistere . . . ergo si quis celebrat post excommunicationem injuste (invalide) latam, non debet sustinere aliquam pcenam." It must be observed however, {a) that these two decrees apply only where the censure or sentence is invalid and not merely unjust ; (b) and where its nullity is certain and undoubted. For if it is (Joubtful whether the censure is invalid or not, the person visited with censure must, as we shall presently see, appeal his case to the judge ad quern, in order to have the nullity declared officially.
3063. When is a censure ipso jure null and void ? For the answer, we refer the reader to what we shall say a little further on, where we show that censures are invalid, because (a) of want of jurisdiction in the Superior ; (b) of the omission of a substantial formality in the proceedings ; (c) of absence of canonical proof of crime sufficiently grave to warrant the infliction of censures, although in reality the crime has been committed.
1 Can. Cai illata 46, c. xi., q. 3. 2 Can. Non debet 64, c. xi., q. 3.
3 V. non debet.
R$pr$sstV( Comctional Punishment
§ 2. Procedure when it u doubtful whether tk U
Invalid*
3064. Where, however, il \§ doubtful whether th< urc is invalid or not, •••.;.. where the person who has been censured claims that the censure has been inflicted upon him after he had made an appeal, or that the offence w not fully proved juxta allegata^ 01 that, 1! proved, it was Insufficient — the Metropolitan or judge ad quern when appealed to, should before all else-, thai is, before he ento upon the hearing of the merits of the case — antequam audire causam incipiat ' give the absolution ad cautelam^ though only (a) by way oi a provisional measure, (b) and citata parte, — /. e.f the appellee <>r judge a quoy and visis act is. Then he should proceed to hear the appeal, and at the end of the trial or investigation he should pronounce final sentence, declaring the censure either valid or invalid. If he declares the censure valid, the absolution "ad cautelam" given in the beginning of the hearing lapses, and the censure revives. But if he declares it null, it ceases absolutely, and the provisional absolution " ad cautelam " passes into an absolute and permanent release from the punishment.
3065. These regulations are thus enjoined by the Decree of Pope Clement VIII. Ad To/lendasi* " Absolutio ad cau- telam, nonnisi citata parte " (the party against whom the appeal is made) " et visis actis, cum dubitatur de nullitate excommunicationis ab homine prolatse vel a jure,3 si
1 Cap. 7 de sent. exc. in 6°. 2 Art. xiii.
3 Although here, and in the following documents, excommunication alone is mentioned, yet it is a well-known maxim of canon law that what is affirmed of one censure, applies equally to all the others, except, of course, where there is question of the specific nature of the particular censure. Hence. Schmalzgrueber, 1. 5, t. ^59. n. 104, expressly applies the law enacted in the above documents to all censures without exception.
2 2 Appeals against
occurrat dubium facti vel probabile dubium juris, conce- denda erit, tuncque ad tempus breve cum reincidentia et praestita per excommunicatum cautione de stando juri et parendo mandatis Ecclesiae tantum ; at si juxta formam a jure prasscriptam apparebit, aliquem ob manifestam offensam excommunicatum fuisse, debitametiam satisfactio- nem praestare, et si ob contumaciam manifestam, expensis pariter satisfacere et cavere de judicio, sisti coram excommunicatore is tenebitur, priusquam ad cautelam absolvatur."
3066. Pope Benedict XI II., (1725) in his explanations of and additions to this decree, enjoins : " Verum quoad absolutiones cum reincidentia, quae Partibus concedi solent a judicibus, ad quos appellatur, ad effectum audiendi, cum inoleverit usus tarn in Tribunali A. C. quam forsan etiam in Metropolitans aliisque Tribunalibus appellationum, quod committantur absolutiones cuicunque Confessario, ita ut rei absque ulla reverentia proprii Ordinarii pro absolutis se publice habeant : Sanctitas Sua statuit ut in futurum hujus- modi absolutiones cum reincidentia, tarn in Tribunali A. C quam in Curiis Metropolitans aliorumque judicum appellationum, committantur ipsis Ordinariis excommu- nicantibus cum clausula ut infra tres dies absolvant censuratos juxta commissionem ; quibus elapsis, si requisitus Ordinarius absolvere recusaverit vel neglexerit, absolvantur a Confessario juxta commissionis formam, quae in praesenti servatur in dictis commissionibus absolutionum. . . . . Declaravitque rursus Sanctitas Sua, quod hujusmodi Commissiones de absolvendo praesentari debeant Cancella- rio Ordinariorum, a qua prassentatione currere debeant tres dies, post quorum lapsum, et non data absolutione, possint ab aliis absolvi, ut supra, in commissione."
3067. These enactments are expressly confirmed in the Const. Ad Militantis, of Benedict XIV., § 45, and therefore made obligatory with us, by the Instruction Cum Magno-
R$p% rectional Punishment
pere, l and in Catholic countries, b) the Instruction
ffact oi i.xso. ■
^ 3. How the Metropolitan imparls the Absolutic ad Cautelam.
306s. From the regulations just given, it follows: Firstt that the absolution au? cautelams in th< iven,
permanently, but only cum reincidentia ; in other words, the person who appeals against the censure at capite nullitatis is released from it only temporarily, that is. only so long the investigation or trial of his case- lasts in the court oi the Metropolitan or judge aw? quem, and until a final decision on the whole case is rendered by the latter. As we have seen, when a person who has been placed under censu whether of excommunication, suspension, or interdict, appeals to tin Metropolitan or judge ad quern, and asserts that the censure inflicted upon him is invalid, or, at lea probably invalid, and where, consequently, it becomes doubtful whether the censure is valid or not, he must be heard, i.e., his appeal must be entertained, and the validity or nullity of the censure investigated.
3069. Now, it may, nay, not infrequently does, take a long time for the Metropolitan to fully examine, hear, try, and decide the case. Delays, both legal and conventional, may and will occur. s Hence, considering that it is doubt- ful whether the appellant in the case is guilty or not, or whether the censure is valid or invalid, and that, therefore, it is possible that one who is innocent, or not validly under censure should, during the whole time of the trial or investigation of his appeal, suffer such a severe punishment as a censure, the law of the Church enjoins that the appel- lant, not only may, but shall be absolved ad cautelam and that, forthwith, i.e., in the very beginning, and before the
1 Art. xxxvii.
1 What is meant by the absolntio ad cautelani will be explained later on-
3 Supra., vol. ii.. n. 1079 sq.
234 Appeals against
judge ad quern enters upon the hearing of the appearand shall remain released from the censure ad interim^ that is, until his case has been tried by the Metropolitan, and final decision given by him. l
3070. This absolution ad cautelam is therefore simply a provisional measure. For, if, at the end of the investigation or trial of the cause, the Metropolitan or judge ad quern, to whom the case has been appealed, decides, by a final sentence, that the censure has been validly inflicted, it re- vives at once ; if he decides otherwise, the appellant is then absolutely and permanently released from the censure.2 By granting the absolutio ad cautelam in the case, the Metropolitan, as is evident, does not give any definitive decision whatever in regard to the alleged invalidity of the censure, or the merits of the case appealed. For he must grant this absolution before he enters upon the hearing of the case. He simply declares, by implication, that it is doubtful whether the censure is valid or not. Here we observe that the Metropolitan not only can, but is strictly bound to authorize this absolution, and that, as we shall see, prior to hearing the cause itself. 3 If he refuses to grant it, an appeal in suspensive lies against such refusal, since it would inflict a damnum, irreparabile.
3071. Here it may be objected that this regulation seems superfluous, since the appeal ex capite uullitatis pro- duces a suspensive effect, as we have seen, and, therefore, relieves a person from the obligation of observing the censure, pending the appeal.4 We answer, the absolutio ad cautelam, proceeding, as it does, directly from the competent ecclesiastical judge, takes away all doubt as to whether the appeal is rightly and properly interposed ex capite nulli-
1 Cap. 2, 7, de sent, excom. in 6° (v. 11). 2 Kober, Excom., p. 543 sq.
3 Cap. Solel 2 de sent, excom. in 6°.
4 Const. Ad Mililanlis, §37; Droste, pp. 135, 136; Munchen, 1. c, vol. i., p. 588.
Rtpi . Punishment
tads and, moreover, officially confirms th< u ivc
effect <>i i be appeal. This absi iLut i< mis, then i nt
to an offi< ial de< laration ol the com Superioi thai the
appeal Is l< ^itimatel) interposed tx capiti nullitatu and therefore, suspi nsh i .
.W, it follows, in »m w h;ii h;is i >< . n aid, and ii also expresslj enacted in the Sa< red Can 'ill in lull
force, that the absolution in question shall b en "ant
litis ingressum," oi "antequara audire causam incipiant," i Metropolitan!), ' or " priusquara incipial de veritate « appellationis cognoscere," * that Is, before he enters upon the bearing or trial of the cause itself, as appealed to him. The Glossa ' thus puts the question : Should the Metropol- itan to whom the appeal is made, before he -rants the absolutio ad cautelam^ inquire into t he justice or injustice (validity or invalidity) of the censure, where, for instam the judge a quo, who inflicted it, claims thai it is just, (valid), so thai the appellant remains under censure pending the trial or investigation in regard to the nullity or injustice of the censure ? The Glossa replies — and its reply is correct and applicable at the present day — that, according to the decision of Pope Innocent IV., the Metropolitan should, in all these cases, before proceeding to hear the case, and before the nullity or injustice of the censure has been established, absolve the appellant ad cautelatn, after having received from him a pledge or promise that if it is found that he was guilty, and therefore justly censured, he will for the future obey the laws of the Church.
3073. There are only two exceptions to this rule ; namelv, where the Bishop or judge a quo, (or his representative, v.g., the procurator fiscalis,) by whom the censure was inflicted in the first instance, offers to prove within eight days4 that the censure was imposed by him (a) for a manifest offence
1 Cap. 7, de sent, excom. in 6°. " lb. 3 In cap. 7, eod. v. Porro iste.
- For just cause the Judex a J quem may prolong this period. Glossa in Cap. 2 de sent. exc. in 6C v. octo.
236
Appeals against
(pffensa manifesto) ; {b) or for manifest contumacy (contumacia manifesto) For in those two cases, the absolution ad caute- lam is deterred for eight days. x If, within that time, the objector {/. e., the judex a quo who objects to the granting of the absolution) does not prove that the censure was inflicted for a crime which is manifest, or for evident contumacy, he is to be condemned to pay the costs, and the appellant must be forthwith absolved ad cautc/am.2
3074. But if he does prove the above assertions, the absolutio ad cautclam can be given by the judge ad quern or his delegate, only on these conditions: First, that the appellant or person to be absolved shall, before he is absolved, make due satisfaction ; second, that, where he has been clearly shown to be guilty of manifest contumacy, he shall, moreover, pay the costs of the proceedings ; third, that he shall present himself to the Superior by whom he was censured, and that in token of submission ; 3 fourth, that he shall give a proper guarantee or at least promise that should it appear from the proceedings before the judge ad quern that he was guilty, and therefore justly censured, he will in future obey the laws of the Church.
3075. We have said, for a manifest offence. The Glossa explains this to mean a notorious offence. 4 We have also said, and for manifest contumacy. Pope Innocent IV. 5 and the Glossa* explain what is meant by manifest contumacy, by the following case. Suppose an Ecclesiastic is cited by his Bishop to appear for trial. He fails to appear and is excommunicated on that account. He appeals to the Metropolitan, and alleges that he refused to appear be- cause the place to which he was cited was not safe, or because he was detained by a lawful impediment, v. g., by sickness. On the other hand, the Bishop offers to show.
1 Cap. Solct 2, de sent. exc. in 6° (v. II.) a Schmalzg., 1. 5, t. 39, n. 104.
* Decretum Clem. VIII. Ad Tollendas, art. xiii.
* Glossa, in Cap. 2 de sent. exc. in 6C, v. manifesto, B Cap. Venerabilibus cit.
* In cap. Venerabilibus cit
Ripi ( Corrti tional Pu
wii Inn eight i i.i \ s, i hat i he .ill- :■' ' I i I' ;if I \ and
notoi i( >uslj writ hout an) i< Miud.it i< m w I and 1 1
( ( insequenl l\ I be 1 1 »nf uma< \ is m fy inex( u: ible.
3076, Excepting In thcs4 two 1 the absolution ad utelam must be alwayi given when it apj thatthi 1
.1 reasonable doubt as to the validity oi th tnd
before the hearing or trial oi the appealed is com-
menced, no mattei what objections the judex a quo or appellee may interpose.1 Lest, however, tins absolution lead t<> abuse and be obtained even l>v those who are clearly and without <i shadow oj doubt under valid and just censui but who nevertheless claim that it is doubtful whether the censure inflicted on them Is valid or not, the law oi the Church ordains, first, thai the absolution ad cautelam shall not be given on the sole assertion or statement of the appellant, ■ but citata parte et trisis act is ; in other words, the judge ad quern must in a simple, informal, and summary manner, hear not only the appellant, but also the appellee or party by whom or at whose instance the censure was inflicted, and also inspect the papers {acta) submitted by them, and thus ascertain the existence of the doubt in the case. However, the appellant, at this stage, is not bound to prove the nullity of the censure. He must merely show that a doubt may be entertained in regard to the validity of the punishment. s For as soon as the Metropolitan or judge ad quern finds, in his informal inquiry, 4 that it is doubtful whether the censure is valid or not, he is obliged forthwith to grant the absolution, notwithstanding any objections that may be urged by the judge a quo or his procurator fiscalis.
3077. Second, that the appellant should, before being
1 Cap. 2 de sent, exc, in 6°. 2 Schmalzg.. 1. 5, t. 39. n. 104.
3 For instance, because the crime was not fully proved "juxta allegata, " or, if proved, is insufficient to warrant the punishment.
4 This inquiry is similar to the " Suramaria facti cognitio " of the Instr. Cum Magnopere of 1884.
23S
Appeals against
absolved, give a proper guarantee, or at least a sworn promise that in case the proceedings before the judge ad quern show that he was culpable, l and consequently justly censured, he will in future obey the laws of the Church.3
3078. Third, lest the authority of the Bishop or the ecclesiastical Superior, by whom the censure has been inflicted, should fall into contempt, the Metropolitan cannot at present, as he could formerly, empower any simple con- fessor to impart the absolution ad cautelam, but must remit the appellant to his Ordinary or the judge a quo, by whom he was censured, with the command that the absolu- tion be given by him within three days. If, then, the Ordinary or judge a quo refuses or fails to impart the absolution, within three days, any ordinary confessor can give it.
3079. With all these precautions, it is plain that tne absolution in the case is at once a just measure of defence against a punishment that is possibly unjust, and a reason- able safeguard to the exercise of legitimate authority. Hence the Glossal not without strong reasons, seems to hold that the absolution ad cautelam should be imparted ante ingressum litis, i. e., before the judge ad quern enters into the merits of the case, not only when there is question of doubt as to the validity of a censure, but also when there is reason to believe the censure to be unjust, though not invalid.
3080. These regulations are expressly recognized and re-enacted in the Decree of Pope Clement VIII. Ad Tollen- das, and in the amendments and additions to this Decree made by Pope Benedict XIII. , and in the Const. Ad Militantis of Pope Benedict XIV. They are applied to this
1 Cap. 52, (v. 39.)
2 Decretum Clementis VIII., 1. c ; Kober, Excom., p. 546.
3 Addit. Bened. XIIT. ad Deer. Clem. VIII. § xii., xiii.
4 In Cap. 7 de sent. *exc. in 6° v. Porro.
Repressii rectional Punishments*
country l>\ the Instruction Cum Magnoptti ol 1884* Hen they are sh ictly obligat< \\ j wit h 1
30(Si. It is plain therefore, that in the case undei d sion, narneh where a reasonable doubt* either oi law or fa exists as i<> whether the censure is really invalid or not, the person censured cannot take it upon himseli tode< ide ol his own accord, and in his own favor, the question ol the invalidity ol the punishment. He must, ther< appeal,
and thus submit the question at issue to th< judge ad quern. Bui pending this appeal he is exempted from the obligation of observing the censure, either in foro interne or in foro externa, since, as has been said above, the appeal Interposed on account of alleged nullity (ex capite nullitatis) against a censure, even though already inflicted, has a. suspensive, not merely a devolutive effect, and because, moreover, the absolutio ad cautelatn must be granted by the judge ad quern.
3082. Hence, also, Barbosa ' maintains that an Ecclesiastic is not to be considered irregular who, having appealed ex capite nullitatis, — v. g., on the ground that no previous warning was given, — against a sentence of excommu- nication (suspension or interdict) pronounced upon him, celebrates Mass, etc., pending the appeal. This holds even though it be afterwards decided that the appeal was not valid.
Art. VII.
Procedure bejore the Metropolitan in Appeals against Threatened Censures.
3083. Thus far, we have spoken of the mode of procedure in appeals against censures which are made after the censure has been already inflicted. We shall now say a few words
1 Collect, in. 1. 2, t. 28, cap. ad Praesentiam 16, n. 3.
240
Appeals against
concerning the manner of hearing appeals which are made against censures not yet inflicted, but merely threatened,
3084. Hozv should the Metropolitan or judge " ad quern " proceed in taking cognizance of and deciding appeals interposed against censures which are merely threatened^ but not yet inflicted? The decree of Pope Clement VIII. Ad Tollendas thus gives the answer : 1 " Cum a gravamine, quod per defini- tivam sententiam reparari nequit, ut indebitas carcerationis vel torturae aut exeommunieationis, etiam comminatce,
appellatur : nonnisi visis aetis, ex quibus evidentur appareat de gravamine, appellatio admittatur, aut inhibitio vel provisio aliqua eoneedatur. "
3085. This decree is thus further explained by Pope Benedict XIII. in the Roman Council held in 1725 :2 " In causis vero comminatas injustae carcerationis, torturae vel exeommunieationis, Sanctitas Sua declarat et mandat, ut non expediantur inhibitiones generates et indefinitae, sed tantum compulsoriales pro transmissione copiae Actorum ad effectum cognoscendi, an sit deferendum necne appel- lationi, adjuncta in dictis litteris compulsorialibus inhibitione, ut interim judex a quo ad ulteriora non procedat : et qua- tenus visis actis, resultet evidens gravamen, tunc admittatur appellatio cum inhibitione, et causa cognoscatur coram judice ad quern ; si vero de hujusmodi gravamine non constet, remittatur causa ad judicem a quo, cognoscenda in prima instantia."
3086. Now Pope Benedict XIV., in his Const. Ad Militantis, 3 decrees that these regulations shall be strict- ly complied with. His words are : " Ubi vero agatur . . . de comminatione censurarum, observetur omnino dis- positio dictorum decretorum Congregationis Episcoporum sub rec. mem. Clemente VIII., juxta additiones et decla- rationes piae mem. Benedicti XIII." We note that, as
1 Art. ix. 2 Addit. et Declar. Benedicti XIII. ad Decretum ix. Clementis VIII. " Art. 45.
Rtpt , ihil PuH\ % ts. • .\ \
Mile nd\ fthOW n I Ik dC( >1 I '« 'p< ( I' Mi.iit VI I I
expi < atea that I Ik- appeal a censure
hasasuspen iv( < n<< t \ tin Const. Ad Miiitantis ol Po Benedict XIV, isexpn 3I3 laid down in oui Instruction Cum Magnoi the rule and mode <>i procedure to I"'
followed in appeals, if is apparent that the above regula- tions full} appl} to this country. Cf. our Elements, VoL I.
N(). . \.\(K
<y. Finally, what hus been said <>f the appeal lawfully in- terposed before the censure is inflicted, holds equall) true of tin- challenge [recusatio judicis) made against the judge, when interposed before the infliction ol the censure. In other
words, a challenge interposed against the ecclesiastical jnd
., Bishop or Vicar-General, before the censure is inflicted
by the latter, has a suspensive effect,-' like1 the appeal inter- posed prior to the infliction of the punishment. 3 In regard to appeals against censures, see also our New Procedure, No. 474.
1 Art. viii. ■ Can. 16, C. 2, q. 6. 3 Ferraris, v. censura, n. 21.
CHAPTER VIII.
UNJUST AND INVALID CORRECTIONAL PUNISHMENTS.
Art. I.
When are Correctional Punishments unjust and invalid?
3088. We have thus far spoken of the nature of correc- tional punishments, of those who can inflict them, and of those upon whom they can be inflicted ; also of the cause or crime for which such punishments can be imposed, and of the manner in which they are to be inflicted. The laws or regulations made by the Church on these heads are of two kinds: Some prescribe conditions or formalities which are essential. Consequently, if they are omitted, the censure is regarded as not having been inflicted at all, and is therefore invalid. Others lay down regulations which are not considered by the law as essentially necessary ; hence, if they are omitted, the punishment will be illicit or unjust, but not invalid.
3089. Therefore a censure is just and valid, when all the requirements of the law of the Church, both essential and non-essential, have been accurately complied with by the ecclesiastical judge. It is invalid, when a substantial or essential condition prescribed by the Church is disregarded. 1 Finally, it is unjust, when a non-essential condition or for- mality is omitted, or when there is either no cause or crime at all, or one not sufficiently grave to warrant the infliction of the punishments in question. 2 We shall now examine more closely the effects which these three kinds of cen-
> Schmalzjr. 1. 5, t. 39, n. 8.
* Kober, Excom.. p. 202; Id., Susp., p. 76; Stremler, 1. c, p. 212.
( njusi in / In •>! l}i<>;
sure* |*i (kIik e, and see how a [ w h( i ith
.in uii|usi in Invalid cen ur< hould conduct him ind
wh.ii means the law oi the Church plao in his handi to pi otect himseli against I hem,
Art. ii. Effects oj ctional Punishment* which are Just and \'<ili<(
©, When all the prescribed formalities, both ntial
and non-essential, have been carefullj observed by the Superior who inflicts the punishment, the censure is valid a>ul
just, produces its lull effect both in foro niter-no and in J
temo, and must, as a rule, be observed by the person censured. We say, as a rule ; for as (a) the fear oi agn evil,(£) or urgenl necessity, exempts a person from incurring a censure, even though he does the act forbidden under censure, so does it also excuse him from the external observ- ance of a censure which he has really, justly, and fully incurred.
3091. Thus, where a person who has justly fallen under a censure would, by observing it, — v.g.% by not saying Mass, — give scandal or defame himself, namely where it would become known, or a least suspected, that he had incurred censure, he is not obliged to conform externally to it. Of course this supposes that the censure is occult. The same holds of the case of urgent necessity, v.g., the necessity of saying Mass in order to administer the viaticum to the dying. !
3092. With these exceptions, the censure which is just and valid must be observed both in foro interno, i.e., before God and in conscience, and also in foro externo, i.e., in the eyes of the law, and the person thus censured must conform to the punishment publicly as well as in secret and privately.
1 Stremler, I.e., p. 222.
244 £ njitst and In : a lid Correct iona I Pu n is /intents.
Art. III.
What Effects arc produced by " unjust " Censures ?
3093. We have seen that a correctional punishment is unjust (censura injusta), though valid, when a non-essential formality has been neglected, or when there is either no crime at all, or one not sufficiently serious to justify the censure. Now the absence of a crime or sufficient cause may happen in three ways: 1. Where in reality the accused has neither committed the crime, nor been proved guilty of it according to the allegata et probata of the trial. In this case, the censure is not merely unjust, but ipso jure, nidi and void. For the sentence inflicting it would contain an intolerable error on its very face. '
3094. — 2. Where the accused has indeed really committed the crime sufficiently grave to deserve a censure, but has neither legitimately confessed it, nor been juridically con- victed of it. In this case, also, the censure inflicted is null and void, and that ipso jure, and produces no effect whatever, at least in foro cxtcrno. 2 For, although in this case there is a sufficient cause in itself, or secundum sc, and although it is known privately to the ecclesiastical judge, yet it does not exist judicially, or secundum judicium, or in foro externo.
3095. — 3. The third case of absence of sufficient cause or crime is where there is in reality no crime or cause, and where, nevertheless, one has been juridically established, v.g., by false and perjured witnesses, by forged documents, or by false confession of the accused, extorted from him by grave fear. Thus a person may be perfectly innocent, that is, guilty of no crime, or at least, of no crime sufficiently
1 Cap. Per tuas, et cap. Venerabilis § Potest, de sent, excom. in 6°. • Reift., 1. 5, t. 39, n. 39.
I 'ujitst and Invalid c ot > < nishmenls,
ive to justify the infliction of censure, and yet be juridically .■•/< ted of a %tn to <L srrv* a nsut
j( )«)( .. Here t hei i is in realit} no cau e w hatei i It is true that the crime has been juridical^ established; thai all the prescribed formalities have been carefulrj ob erved the Bishop ; that the canonical admonition has been properly griven ; that the trial lias been conducted in the mo I coi rect manner. But the evidence was false; the do< umei forged; the witnesses perjured. The Bishop was misled. Or again, the judge may be animated by personal feelin by passion, ill will, hatred, or feelings oi revenge; and actuated by these motives, he may, under the guise of the strict and accurate observance oi all the required formality impose censure upon a subject whom he know- to be innocent. '
3097. Now it is certain that the censure thus inflicted is wholly unjust, and produces no effect whatever in foro mternOfthsi is, before God and in conscience, and, therefore, can be completely disregarded in private.'- Nevertheless, it is valid and produces its effect in foro exierno. Why ? Because it has been inflicted in accordance with all the forms of law, and the cause or crime, though really not committed, has nevertheless been established and therefore exists in foro cxtcrno. Hence a person thus censured would indeed before God and his own conscience be free from the censure, and privately he could disregard it. But in foro externa he would be obliged to observe it, until it had been revoked by the judge ad quern, as enacted in the above law of Clement VIII., or until his innocence and the error com- mitted by the ecclesiastical judge had become publicly known. s In this sense is to be understood the oft quoted
1 Kober, Excom., p. 211.
3 Cap. 28 de sent, excom. (v. 39) ; Cap. 1. de sent, et re jud. in 6° (ii. i^*i Kober, Excom., p. 216.
3 Cap. Inquisitioni tuae 44, de sent, excom. (v. 39); Reiff., I.e., n. 41-44.
246 Unjust and Invalid Correctional Punishments,
and oft misunderstood sentence : " Sententia Pastoris, sive justa, sive injusta fuerit, timenda est." '
3098. In fact, if in this case, where all the forms of law have been fully observed, the censure could be violated also in the external forum, and publicly, the door would be left wide open for the violation of the most just censures by malicious persons. For these persons, though justly found guilty secundum allegata et probata in the external forum, could always claim that, in conscience and before God, they were wholly innocent. 2 Again, a person thus unjustly but validly censured is, like every body else, bound to avoid giving public scandal. Now it is plain that he would give such scandal, if he openly and publicly disobeyed the authority of the Superior, exercised in a lawfid manner, that is, according' to all the forms of law. *
3099. Moreover, the natural law itself demands that the good of a particular person should give way to the common welfare of all. Now it is evident that the common good of the faithful requires that obedience should be shown exter- nally and publicly to the competent authority, when it is exercised in accordance with the forms of law, until the injustice of the sentence is either declared by the higher ecclesiastical authority, or becomes publicly known.
3100. From this, however, it also follows that the person thus censured can completely disregard the censure pri- vately, and also publicly, provided it be before persons who are aware of the injustice of the censure, or in places where it is not known that the censure has been inflicted upon him. In a word, he need not, even in foro externo, or publicly, observe the censure, where he can do so without giving scandal, namely, where it has not been officially published or is not generally known ; nor in places where the censure is indeed publicly known, but where the
1 Can. I., c. xi., q. 3; Ferraris, v. censura, n. 33. 3 Reiff., I.e., n. 43.
3 Cf. Schmalzg., 1. 5, t. 39, n. 83; Leur., 1. 5, t. 39, q. 556, n. 3.
I 'njust gmd InosUid ( <>> rutional Punishments*
innocence oi the person cen ured ii also known. Poi ■ person can jive no scandal i>\ d ire
before persons who do not know he is undei censure, 01 who, ii they do know, also know that th< censure is unjust
or void. '
jioi. It must, however, be observed that, although a
person (tins unjustlj censured docs not / incur
irregularity in fare txterno by violating the censure, vet, if it is found out 1 1 Kit he has violated it, or it he is accused and juridically convicted <»t such notation, he can be officially declared irregular, since he is validly under (ensure in foro exttrno. Nay, if, upon being so declared, he refuses to violating the censure, alter having been admonished, he < an
be visited with new censures on account oi his disobedience and seeming contempt of ecclesiastical authority. '
Art. IV. Effects and Observance of "Invalid" Correctional Punishments.
3102. It has been shown above that a correctional punish- ment or censure is invalid, and not merely unjust, when a substantial formality or condition prescribed by the law of the Church is clearly set aside by the ecclesiastical judge. An invalid censure, or an invalid sentence inflicting censure, produces no effect whatever, either in foro interno or in foro externo. For, like every other invalid punishment or sentence, it is regarded by the Sacred Canons, which are still fully in force, also in the United States, as not pronounced or inflicted at all. No appeal, therefore, is necessary against it, since it is needless to appeal against that which has no existence in law.
3103. Hence a person who is clearly under an invalid censure can disregard it, on his own authority, both in
1 Kober, 1. c, p. 218. 8 Reiff., 1. c, n. 43.
248 Unjust and hivalid Correctional Punishments.
foro interna and in faro externox as we shall explain more fully later on. In truth, the law of the Church, by the very fact that it renders a sentence or punishment null and void, when it is inflicted without the prescribed essential conditions or formalities, deprives it of all effect whatever. Besides, the Sacred Canons declare, as we shall see later on, that a person may, of his own accord, disregard censures which are undoubtedly invalid.
3104. Now, when are correctional punishments invalid? In these three cases: 1. Because of want of jurisdiction on the part of the Superior inflicting the punishment. This can happen (a) either because the Superior has exceeded his jurisdiction as limited by law ; (b) or because he is under censure himself ; for a Superior who is himself excommuni- cated or suspended cannot inflict censure upon others;1 (c) or because the defendant has made an appeal before the censure was actually inflicted ; for, as we have seen, an appeal interposed against a threatened censure has a sus- pensive effect;2 (d) or, finally, if the Superior imposes a censure upon a person who is not his subject.
3105. — 2. Next, a censure is ipso jure invalid and pro- duces no effect whatever, when the Bishop or ecclesiastical judge neglects a substantial formality in the proceedings, v.g., if he fails to give the previous canonical admonitions or precept, as described above ; 3 or if he does not give the accused a trial, as noted above;4 or if he indeed gives the trial, but sets aside some substantial formality prescribed for trials, v.g., the citation of the accused, or the right which the accused has of fully defending himself.
3106. — 3. Finally, censures are " ipso jure" invalid, and not merely unjust, when they are inflicted without a sufficient cause or crime, AS CANONICALLY AND JURIDICALLY ESTABLISHED.
For, as we have seen above,5 correctional punishments can
1 Can. 4, c. 24, q. I. 2 Supra, vol. i., n. 446. 3 Supra, 11, 1757 sq., 2704. * Supra, n. 2065 sq. 5 Supra, n. 2021 sq.
Unjust and Invalid i xl Punishment!
be inflicte< I i mortal sins, na
Now, in foro txtemo%o\ in thi «>i the Church and <>l
i he Sa< red ( am >n in foro also in i he I ' nite< I Stat i
England, Ireland, and othei missionar} countries, it is not sufficient, as was seen above, that thi crime has been realh committed; it must be, moreover, juridically proved bj r.MK tnical or legal proof, < )i Ik-i \\ i >e i he < em m null and \ oid. 1 [en< i nsui e, like ever} ot h< i < < < lesi
tical punishment, is invalid, not merely unjust, when it inflicted upon a person who has indeed committed the crime for which censure has been imposed upon him, hut who vet has not been convicted oi it juridically, that is, by canonical proof, juridically obtained* For, in the external forum, (and tin- infliction of censures is always and essential- ly an exercise oi power in foro externa), every offence, no matter how enormous, which is not juridically and canon- ically proven, is considered as not committed.
3107. Hence the Bishop or ecclesiastical Judge, also with us, cannot inflict censure for a crime of the commission of which he is perfectly certain simply by private information. For to inflict a correctional punishment or censure is always a public judicial act, an exercise of public jurisdiction or of power in foro cxtcrno, also in this country and every- where.1 Consequently, it can take place only on public or juridical knowledge, that is, on information obtained by the Bishop or judge, not privately, but by competent juridical documents or testimony produced at the trial. 2 For the nature and various kinds of canonical or juridical proofs^ see above. 3
3108. We say competent juridical documents ;* in othei words, the proofs shall be canonical or legal (probatio cano- nica, legalis), that is, they shall have those qualifications and conditions which are prescribed by the law of the Church.
1 Schmalzg., 1. 5, t. 29, n. 80. 2 Schmalzg., 1. 5, t. 39, n. 80.
3 Supra, n. 813 sq. 4 Kober, Susp., p. 6i.
250 Unjust and Invalid correctional Punishments.
Consequently the proofs must be (a) without any flaw or defect ; (/>) full and perfect ; (c) produced during the trial or citata parte, that is, they are to be produced in the presence of, or at least communicated to the accused, and his defence or answer thereto is to be received. !
3109. Hence, if, for instance, the ecclesiastical judge should, except as stated in Art. XX. of the Instruction Cum Magnopcrc, admit the testimony of witnesses who are clearly not omni exceptione mqfores, and should condemn the accused on their testimony, the censure would be not merely unjust, but ipso jure invalid. For in this case the judge would openly violate an essential prescription of law, which requires canonical proof {probatio legalis) for conviction. In like manner, if the ecclesiastical judge should inflict a cen- sure for an offence which, though legitimately proven secundum allegata ct probata, is yet clearly insufficient to warrant the imposing of a censure, the latter would be invalid, and not merely unjust. For he would violate a substantial requirement of the law, which forbids the in- fliction of censure except for grave and sufficient crime.
31 10. It will be seen, then, that, while a censure which is
1 Thus Pope Eleutherius enacts : " Caveant judices ecclesize, ne absente eo, cujus causa ventilatur, sententiam proferant, quia irrila erit." (Can. 2, z. 3, q. 9). Pope Cornelius ordains : " Omnia quae adversus absentes in omni loco aut negolio aguntur aut judicantur, omnino evacuentur." (Can. 4, c. 3, q. 9). Pcpe Felix, writing to the Bishops of France, decrees: "Absente adversaria" (reo) ''non audiatur accusator " (Promotor fiscalis) " nee sententia, absente alia parte, a judice dicta, ullam obtineat firmitatem." (Can. II, c. 3, q. 9).
Hence it is a well recognized principle that all ex parte or one-sided proceedings are null and void. Consequently the inquiry which precedes the citation {processus informalivtis) has no legal effect whatever, so far as concerns the establishment of the crime, unless all that was done in the inquiry be fully communicated to the defendant, and his answer or defence, or objections received. Thus only does the processus informativus become legalized. This communication or legalization {Ifntimatio processus) has for its object to convince the accused that no error or malice has crept into the proceedings, and also to enable him to defend himself. (Todeschi, Man. du Droit Can., p. 508).
Unjust and In ^rrectional Pun nts
tn/ust, inn t be observed \ ro ext< intil il
by th( al Superior, or until its injusl bccon
known, a a xsuti which is invalid need not ; td
titker " in fotointerno" pr " extemo" I In- reason <>l tln^ difference of effect is that in th( ca i of an unju t correctional punishment the ecclesiastical judge, though *ett aside non-essential formalities, vet observes those whi< ban i n tial Consequently his action stands before the law until it is property reversed. But in the case oi invalid i .is in the case oi all other invalid punishments, the ecclesi; tical judge acts in direct violation oi substantia] prescrip- tions of the law oi the Church; he exceeds the limits ol his authority; therefore he acts simply as a private individual, and his acts have no w hal :ver in the external forum.
31 11. Nor can it be objected that scandal might some- times be given by persons disregarding invalid censures, since in some cases it might happen to be generally known that the censure had been inflicted upon such or such a person, and on the other hand it might not be known that it was invalid. The objection does not seem to us well taken. For this case is no longer supposable at the present day, since nothing would be more easy than to make known the defect which renders the punishment null and void. Again, the scandal, if any, would be produced, not by any fault on the part of the person censured wrho disregards the censure, but by the illegal action of the ecclesiastical judge. Fi- nally, no one is bound to avoid a pharisaical scandal.
31 12. While, however, it is true that a person can, of his own accord, disregard an invalid censure, and that both in the internal and external forum, privately and even publicly, provided the nullity be known publicly, it is nevertheless equally true that the nullity in the case must be certain, clear, and wholly beyond any reasonable doubt. For where there is any reasonable doubt, either of law or fact, as to whether the censure is invalid or not, the action of the
2 Unjust and Invalid Correctional Punishments.
Superior holds good, until it is reversed by the higher lesiastical judge.1 Hence, in the case of doubt, the person censured cannot of his own accord disregard the cen- sure, but must appeal ex capite nullitatis to the judge ad quern, in order to have the punishment declared invalid. This appeal, however, has, as was seen, a suspensive effect. Now, practically speaking, such doubts may not unfre- quently arise. Thus, sometimes, a dubium juris may present itself, v.g., it may not be clear whether a certain formality or condition is prescribed by the law of the Church as sub- stantial or merely as accidental ; as entailing nullity or merely illicitness. At other times, a dubium facti may crop out ; v.g., it may be doubtful whether, as a matter of fact, the ecclesiastical Superior has really exceeded his jurisdic- tion or set aside some essential formality or requirement.
Art. V. Effects of Censures which are " a jure " and " lata sententice."
31 13. What we have hitherto said applies to correctional punishments inflicted by the Bishop or Superior, in particu- lar cases, i.e., to censurceab hominc, per sententiam particular em, and also to censures a jure which are ferendce sententioe. We come now to correctional punishments which are in- flicted by the law itself and are incurred " ipso facto." By the law we here mean, not merely the general law of the Church, but also all particular or local laws, such as synodal statutes.
3 1 14. Now, as we have seen, censures a jure which are latce sententice are incurred, in foro interno, even though the crime is not juridically proved, provided it has been really committed. But in foro cxterno these punishments are not incurred, until the Bishop or ecclesiastical Superior has
1 The rule of all Roman and canon law is : " In dubio standum est pro vrJore actus."
/ fnjust and Invalid I tmal Punishment
\ ,ii i Ik a< i us( da trial bun I pn >n< >un< ed declai atoi j • n icik e. In othei words, th( Bi h< >p i annot pai d( < laratorj
nicin i , ..i publish t he i em ure in t he i ise, unit • i he < i im< has been jui idicall} proven, oi is i ompletel} notoi iou
31 15. Mow, a person who has incurred a censure in interne must indeed observe it in faro inter 'no >, *.*., in con- science and before God. But In- is not bound to defame himself. I lence, it he cannot observe 1 h 1 tially, and before others, without causing them to suspe< 1 that he is under censure, he is not hound to conform to the censure publicly. We to has really incurred, etc. ; foi ii aperson commits the deal or crime to which the censure is ipso juri annexed, but has acted from ignorance, as explained above,1 or from fear or inadvertence, he dors not incur the censure, even in foro inferno, and hence- need not observe it eithei privately or publicly.
3116. The same holds, when the law itself or statute commanding or prohibiting something- under censure is null and void. For the censure is an accessory of the law or statute, and is therefore void, if the statute itself is invalid.
1 Supra, n. 1702.
CHAPTER IX.
PUNISHMENTS INCURRED FOR DISREGARDING CENSURES.
31 17. Persons upon whom a correctional punishment has been validly and justly inflicted and who arc not excused from its observance by any of the reasons given in the preceding article, v. g., by reason of an appeal interposed, must abstain completely from those acts which the censure incurred by them forbids. If such a person nevertheless, knowingly and maliciously, performs such acts, he is guilty of a wilful violation of the censure and commits a mortal sin. x For such conduct is evidently a grave disobedience to the Church, and implies contempt of the Church and her coercive power. 2
Art. I. Irregularity as a PtinisJimcnt for violating Censures.
31 18. The Church has, moreover, established severe positive punishments for such violation of censures. The first of these is irregularity or canonical disqualification to receive orders or to perform the functions of orders, zvhethcr major or minor, which a person has already received. 3 Canonists prove this from the Cap. CumALtemi 1 de sent, ct re jud. in 6° (ii. 14), where Pope Innocent IV. decrees that ecclesiastical judges, both ordinary and delegated, who shall allow themselves to be influenced in their acts by personal motives, such as
1 Cap. ult. de cleric, exc. min. (v. 27). 3 Kober, Susp., p. 95.
3 Supra, n. 1925 sq.
PunisliDinits incut r$d
hatred, feelings ol revenge, favoritism, fear, gain, 01 hope ol
; u, in .»i Ik i unwoi tin in' >tivc i, hall b< id< d
from theii i >ffi< i •• ab exei utione offi< ii " f< >i on< j • ai . and it dm ing said \ eai thej pi esumc to < an a< t oi
" ordo," they shall A f^»i They pro> e th<
also from the Cap, C*»i Medicinalu \ </< sent, excom, in I 1 1), where the same Pope [nnocent [V. enact that eccl astical judges who dare to inflict cen ures withoul the formalities prescribed in said "caput* and explain above • shall incur ipso facto suspension for one month "ab Lngressu ecclesiae el divinis officiis," and if, during this month, when they arc suspended, they dan to perform " officia divina," they shall incur irregularity, 3
31 19. It is to be noted, however, that not every wilful
violation of a correctional punishment produces irregularity; but only that which consists in the exercise of orders, major or minor. ' Thus, if a person who is, for instance, suspended ab ordine nevertheless performs acts of the ordo, v. g., says
Mass or administers the sacraments, he incurs irregularity. But if a person who is, for instance, suspended merely from acts of jurisdiction nevertheless performs acts of jurisdiction and even of the ordo, he incurs no irregularity whatever. Why ? Because by his acts of jurisdiction he violated the censure, it is true. But the law of the Church does not impose irregularity for the violation of such a censure. By performing acts of order, in the case, the person has not violated any censure, since he was suspended only from jurisdiction, not from orders. Hence a person incurs irreg- ularity only when he is forbidden by his censure to exercise acts of order — r. g.y when he is suspended ab ordine — and when, notwithstanding, he does perform an act of the ordo. 5
1 " Quod si suspensione durante damnabiliter ingesserit se divinis irregnlaritatis laqueo se involvet" (Cap Cum jfctemi cit. )
* Supra, n. 2044.. sq. ! Kober, 1. c. * Supra, n. 1929.
fi Schmalzg., 1. 5, t. 39, n. 308.
256 Punishments incurred for disregarding Censures,
3120. Irregularity is always incurred ipso facto, and absolution from it reserved to the Pope. 1 As to the special faculties granted our Bishops by the Holy See, of absolving from irregularities, see our Notes.* As we have already observed, no violation of a correctional punishment produces irregularity, unless it is intentional, wilful, and malicious, and therefore committed knowingly and wilfully. For irregularity, as was shown above, is a very severe punishment, and therefore cannot be contracted where there is no crime, that is, where the violation of the censure, though justly and validly incurred, is unintentional or excusable, v. g.y because of urgent necessity, or for the purpose of avoiding defamation or scandal, or other just motive. 3
312 1. Here we also remark that, when a censure is null and void, as we have seen in the preceding Article, it produces no effect whatever, and consequently its violation can never produce irregularity. 4 We also observe with Card. Petra, that, when a sentence or censure is notoriously unjust, such injustice is equivalent to nullity of censure and has the same effects. 5 Consequently also, even in those cases where, as was shown in the preceding Article, a per- son should sometimes externally and publicly observe an unjust or invalid censure, in order not to give scandal, yet if such a person chooses nevertheless to disregard tne censure publicly and give public scandal, he would not incur irregularity, since irregularity is produced only by the violation of a censure which is just and valid.
1 Cf. Cone. Trid., sess. xxiv., c. 6 de Ref.
2 Here is the faculty: " Dispensandi in quibuscumque irregularitatibus. . ." (Fac. form. 1 apud our Notes, p. 463).
I'i < 1. S. Sulp., n. 821. 4 Supra, n. 3109.
6 Card. Petra, Com. in Const. Innocentii VI. Cum onus, t. iv„ p. 126 Venetiis, 1741.
Punishments incurred fa j
A i i II.
Dismissal as a Punishment for dist tuns*
\\ • i i he next punishment is, that if, upon being duty and canonicalh admonished, these persona do not I ofl
violating censures, but continue obstinately to perform a
thi " ordo" in direct \ i( >lat u m < »l i he dismissed (privatio)t nay, even forever deposed I tio) from
their offices and benefices.1 This punishment is /ere/, sent entice, and, as has just been intimated, must be pre( ed< h\ a special canonical warning, since ii i an he imposed only
upon those who obstinately and contumaciously disregard
correctional punishments. ' Kober1 holds that, even wh<
the censure has been inflicted for a fixed period OX as a vindi- catory punishment, its violation produces irregularity. * Others deny this. 5
Art. III.
Other Punishments incurred for violating Censures.
3123. Hitherto we have spoken of the punishments de- creed for such a violation of a censure as is caused by an act of order, major or minor. 6 Now, what are the punish- ments incurred by those who wilfully and maliciously disregard a censure by exercising acts of jurisdiction ? First, they certainly commit a mortal sin. Secondly, all acts of jurisdiction performed bv them are ipso facto null and void, and those persons who are subject to a Superior thus exercising jurisdiction, in violation of a censure incurred by
1 Cap. 3, 4, 6 de cleric, excom. min. (v. 27.) 2 Stremler, 1. c, p. 219.
3 Susp., p. 95.
4 Arg. cap. 1 de sent, et re jud. in 6° (ii. 14.) ; Cap. 1 desent. excom. in 6° (v. n).
5 Cf. Craiss., n. 1796. 6 Reiflf., 1. 5, t. 27, n. 22; lb., adnotatio xl.
258 Punishments incurred for disregarding Censures,
him, need not, nay, cannot obey him. ' Thirdly, besides, the higher Superior may impose such other punishments as, in his judgment, the circumstances of the case — namely the scandal given, the malice of the offence — will justify. * Fourthly, there are other specific punishments decreed by the Sacred Canons, which, however, we shall discuss in the various parts of this work, as occasion offers.
Kober, L c, p. 104. 9 lb., p. 103.
i\
CHAPTER X
who can RBLBAS1 FROM REPR] [VI CORRECTIONAL
PUNISHMENTS.
Art. I. Do tJifse Punishments cease of themselves f
3124. The object of correctional punishments, as wc have seen, is chiefly to cause the delinquent to reform and make- satisfaction for what he has (/our. The culprit is, to u the words oi the Apostle, delivered over to Satan, In order that his spirit may be saved.1 To reclaim the erring and wavward sinner is the primary and great object of the Church when she inflicts correctional punishments. Hence she never leaves tne offender out of sight when she has visited him with a censure. Thus, while, on the one hand, v. g., an excommunicate who is to be shunned — vitandus — is excluded from assisting at Mass and the other functions of divine worship, he is allowed to be present at sermons, because the word of God may perhaps bring him back to repentance. 2 The Bishop who has inflicted the censure is expressly commanded to constantly admonish, encourage, and urge him to return to the path of duty. He should unceasingly and lovingly follow the wayward offender, as the Good Shepherd followed the lost sheep, and by his fatherly kindness, so to say, compel him to return to the path of virtue.
3125. From this it would seem that, as soon as the end of the correctional punishment has been attained, that is, as soon as the delinquent has become penitent, made satisfaction^ and
1 I Cor v. 5. 2 Kober, Excom., p. 448.
Release from Regressive Correctional Punishments,
repaired the consequences of his guilt, the censure should also cease of itself. This, however, is not the case. For in order that a censure, inflicted upon a person as a censure, may cease, the intervention of the ecclesiastical judge or Superior and a formal remission (absolutio) on Ids part arc necessary. 1 For, as the inflicting of the censure is an act of jurisdic- tion, so must also its withdrawal or removal be effected by an act of jurisdiction. And as the Church binds by the censure, so also must she loose from it, by a special act or exercise of her authority. " Omnis res," says the law of the Church, " per quascunque causas nascitur, per easdem dissolvitur." 2
3126. In fact, it is manifestly in the interest of a proper and well regulated discipline that not the person under punishment, but the Church or proper Superior shall be the judge to decide whether the offender has really become penitent, made proper amends, and is therefore entitled to regain his former status and to re-enter upon the possession and enjoyment of the spiritual benefits of which he had been deprived by the censure.
3127. On the other hand, it is not left to the nod or whim of the ecclesiastical Superior to give or withhold the release from the censure as he pleases. 3 On the contrary, the law of the Church, as in force also with us, is that, once the delinquent has amended, he obtains, by that very fact, the right to the absolution, and the superior is bound to grant it. 4
3128. We said above, " For, in order that a censure inflicted as a censure, " since censures imposed as vindicative punishments, for a specified time, v.g., for six months, lapse of themselves with the expiration of the term for which they were inflicted, without any intervention or remission on the part of the Superior. Of course, the Superior by whom the censure was imposed as a vindicative punishment,
1 Cap. 15, 28, 38, 58 de sent, excom. 2 Cap. 1 de reg. jur. (v. 41).
; Kober, 1. c, p. 452. 4 Cap. 25 de appell. (ii. 28)} Cap. 11 de const, (i. 2).
i
ease from Repres rit ■<• <
foi .1 * < i tain time ma) . ii be thinki if < icpedient, horto •• this tei m .ind remit the punii hmenl before th< tei m hai expired. '
Art, ii.
W, release from these Punishments when they are inflicted
" a jure " and im urred" ipso fa* to " f
312 Who has the power to relieve a person from
a censure incurred t>\ him f
./. It is necessary to distinguish between correctional punishments, (a) which are inflicted by the law and are la,
sententios, (b) and those which arc imposed ab nomine, per sententiam particularem ; again, those a jure arc either reserved or not reserved. 1. As to censures inflicted by the law— a jure* in such a manner as to be incurred ipso facto, it would follow, strictly speaking, from what has been said, that only the lawgiver from whom they have emanated, or his successor, delegate, or Superior can absolve from them, even when they are not reserved. For the general rule is that correctional punishments can be remitted solely by the Su- perior by whom they were inflicted. A well regulated discipline requires this.
3130. Hence, strictly speaking and per sc, only the Pope and an CEcumenical Council can absolve from a censure, even though not reserved, inflicted by the general law of the Church ; and likewise, only the Bishop can free a subject from censures enacted by Synodal statute or general command. However, this would make it very difficult, nay, sometimes impossible for the person under censure
1 Kober, Susp., p. 128.
3 And by these censures we mean, not only those inflicted by the general law of the Church, v.g., those contained in the Const. Ap. Sedis of Pius IX., but also those imposed by Bishops, either in diocesan Synod— per modum statuti— or out of Synod, by general mandate— per sententiam generalem.
262 Release from Repressive Correctional Punish ments.
to be released from his punishments, even after he has become penitent.1 Consequently the general law of the Church, made bv Pope Innocent III., as construed by the universal practice of the Church and the unanimous teach- ing of canonists, has authorized every confessor to absolve from censures, lata sent entice, whenever the lawgiver Jias not reserved the absolution to himself. 2 This law is still in full force, also with us and everywhere.
3 1 31. It is true that the Pontiff speaks merely of minor excommunication, but by parity of reason and because favors must be liberally construed, canonists unanimously extend the Pontiff's disposition to all censures. Likewise it is again true that Innocent III. treats solely of censures inflicted by the general law. Yet canonists also apply his Constitution to censures enacted by local laws, such as synodal statutes or enactments of Bishops per sententiam gcneralem, since these censures are placed on the same footing with censures a jure communi.
3132. Hence, in the case, any confessor can absolve from correctional punishments, which are (a) inflicted by law, general or local, (b) incurred ipso facto, (c) and not reserved. The question here arises : Can a confessor, in the case, give the absolution also outside the confession or the tribunal of penance, and pro foro externo, or merely in the tribunal of penance and solely pro foro interno ? 3 There are two opinions ; one affirmative, the other negative. Those who hold the negative, such as Stremler, * base their opinion on
1 Kober, Excom., p. 464.
2 The words of the Pope are : " A suo episcopo vel a proprio sacerdote poterit absolutions beneficium obtinere . . . quia conditor Canonis ejus absolutionem sibi specialiter non retinuit, eo ipso concessisse videtur facultalem aliis relaxandi." (Cap. Nuper 29, de sent, excom. (v. 39.)
3 According to Stremler, (p. 242 > the absolution from censures in foro externo is that which is given outside of confession or the tribunal of penance ; that in foro interno is the one which is imparted in the tribunal of penance.
« lb., p. 240, 243.
Relcast from Repress* >■■■ Puniskmtnts* i<
the- argument that the granting ol absolution outside the
tribunal of pc mi) an act <»t jurisdiction in
Now ordinan confessors have no such jurisdiction;
hence, <"t<"-
3133. The affirmative ^ whi< li is the opinion <>l St. Alphon- siis, ' STarceno," and <>th<is, is that ever} confessoi can give the absolution in question outside thi tribunal of penat and pro foro extent. This seems to us the more probable opinion. For while it is true that simple or ordinary <<»n- fessors have no jurisdiction in foro extemot l.v virtue "I their office, yet it is also true that they possess this juri diction in the case under discussion i>\ virtue oi special am! express authorisation of tin- common law of the Church, as laid clown in the' decretal Nuper ol Innocent III., above
quoted. In Let, this decretal places the saccrdos proprius, by whom is meant not only the parish priest, but every confessor, as canonists agree, on a footing oi perfect equality with the Bishop, in regard to the granting of the absolution in question. 3
3134. Q. Who can release from correctional punishments which are inflicted by the law (a jure) and are incurred " ipso facto, '* when the author of the law in question has ex- pressly reserved the absolution to himself?
A. (a). Only the law-giver himself, or the Superior who has made the law containing the censure, and who has reserved the absolution to himself ; (b) his lawful successor in office, (e) or his delegate, (d) or his direct and higher Superior. We say, his higher Superior ; consequently the Pope can release from all correctional punishments reserved by Bishops, throughout the whole world ; Generals of religious orders, from those reserved by inferior religious Superiors. The Metropolitan cannot absolve from the cen- sure reserved by his suffragans, save when he makes the vis
1 L. vii., 70. 8 Comp., p. 908. 3 Kober, Excom., p. 460.
264 Release from Repressive Correctional Punishments.
itation of the province, and when a case is appealed to him. 1
3135. Again we say, his lawful successor in office ; for the successor is considered as one and the same moral person with his predecessor, and therefore possesses the same power. Hence, whenever the Bishop dies, or is removed or transferred, or resigns, or in any other way loses his office and jurisdiction, the Cathedral Chapter, 2 through its Vicar-Capitular, 3 (with us, administrator) can absolve from all censures reserved by the Bishop to himself.
3 1 36. We say also, his delegate or representative ; for the Bishop or other Ordinary judge can at any time authorize another person to act for him in this matter, in such a manner that the absolution given by this delegate will have the same effect as though it had been imparted by the Ordinary himself. In fact it has become customary for the Pope and Bishops to delegate this power to a num- ber of inferior ecclesiastics, in order that the persons under censure might not be put to the hardship of being obliged to apply to the Pope or the Ordinary himself for the absolu- tion.4 The Bishop or other Ordinary is perfectly free to select as his delegate for the exercise of this power any worthy ecclesiastic. He is, moreover, at liberty to bestow upon such delegate or representative the power to absolve either only in foro interno, or also in for 0 externo.
3137. Besides the cases just mentioned, where the Bishop or other Superior, in a special and personal manner > delegates others, there are other cases, where the law itself authorizes inferiors to release from the punishments under discussion, namely from censures which are inflicted a jure and are in- curred ipso facto lata sentential, and are moreover reserved. For these cases we refer the reader to Vol. I., Nos. 682, 683. For the special powers of the Bishops of the United States, see above, Vol. I., No. 684.
1 Cap. 5, 7 de sent, excom. in 6° (v. 11). 2 C. 1. de major, in. 6° (I. 17.)
3 Cone. Trid., sess. 24, c. 16 de Ref. 4 Kober, Excom., p. 483.
A', fro n AV/'< onal Punish
An. Ill What Sitf' \H ran:! //;< I PuntskfHifUSy when they ,
" di> hotnint
:i ;S. We conic now to the remission <>/ tional pun
>>. :s, ., kick are imposed " ab hontine per sententiam specialrm." These punishments or censures being Inflicted by a parti* u- lar sentence oi the ecclesiastical judge, and nol by the law, are always, by that very fact, regarded as n Land
therefore can, without being expressly reserved, be remit: solely by that ecclesiastical Superior by whom inflictea\
or by his successor in office, or by his representative or delegate, or by his higher Superior, and no one else.1 This follows from the principles already fully explained. This i^, more clearly required in the interests of proper discipline and order. For if the punishment inflicted by one Bishop or Superior could at will be remitted by another Bishop, all discipline, order, and respect for authority would cease. -
3139. We say, or by his successor or representative; this point needs no further explanation ; since what we have said above on this matter applies here also.
3140. We say again, or by his higher Superior. The Metropolitan, being indeed, as we have seen, the Superior of his suffragan Bishops, though not pleni juris, can release from the censures of suffragans which are ab ho/nine per sententiam particularem only an appeal and during visitation, but not otherwise. When a person upon whom a censure has been inflicted by his Bishop, per sententiam specialem, appeals to the Metropolitan against the censure, the latter can, nay, is strictly bound to admit and take cognizance of the appeal.
3 141. In regard to the manner in which appeals against
1 Arg. L. 3 ff. de re jud. (42. 1) ; Can. 51, dist. I de poenit.
2 Schmalz., 1, 5, t. 39, n. 93 ; Kober, I.e., p. 452.
266 Release from Repressive Correctional Punishments.
censures are to be made, prosecuted, and heard, the law of the Church is that the same rules are to be followed as in all other appeals. ' These rules have been fully explained in this work, both in the first volume, pp. 193 sq., 425 sq., and in the second, pp. 286 sq., to which places we refer the reader, and also in this third volume, Nos. 3051 sq.
3142. From what has been said, it follows that, when a person who has incurred a censure ab homine per sententiam specialem leaves the diocese of his. Ordinary who censured him, he nevertheless cannot be absolved by any other than the Bishop by whom the censure was inflicted. Likewise, when a person has committed a crime in a strange diocese and is placed under censure by the Bishop of the place, he cannot be absolved by his own Bishop, save with the con- sent of the Bishop who imposed the censure.
3143. Finally, what has been said concerning absolution from censures ab homine per sententiam specialem applies also to censures a jure when fer en dee sententice. For the latter, in order to be really contracted, must be inflicted by special sentence, and are therefore placed on the same footing with correctional punishments ab homine per sententiam specialem.
1 Kober, 1. c, p. 83.
CHAPTER XI.
FORMULA, CONDITIONS, IND MODI \ Ol i:ui\ B FROM
« I >RRB< i ui.nai, PUNISHMBM I
Art. I.
Formula of Absolution or Release
3144. The law oi the Church docs not prescribe any particular form oi absolution from censures or correctional punishments. It Is sufficient that the will to release or absolve be clearly manifested. This ma} be done by word oi mouth 01- in writing. Thus, when the Pope confers a benefice upon an excommunicate, he is regarded as to ipso absolving him from the excommunication.1
3145. We say, clearly manifested ; for the will alone does not suffice; it must be manifested by some external sign, zvorrf, or action. It is not absolutely necessary that the per- son to be absolved shall be present ; for as a person who is absent can be put under censure, by letter, so can he be released from it in like manner.2 Nay, a person can be absolved by proxy. Thus it will be seen that the release or absolution from censures differs in various ways from sacramental absolution from sin. It is not necessary to express in the absolution the cause, i. e., crime, for which the censure was inflicted, though it is expedient to do so.
3146. While no particular form of absolution is pre- scribed, yet when the absolution is given in foro interno the general formula, which the confessor recites immediately before giving the sacramental absolution in confession, is generally used, namely : " Ego te absolvo ab omni vinculo
1 S. C. C. 26 Apr. 1749. 2 Schmalzg.. 1. 5, t. 39, n, 102.
Modes qj Absolution or Release.
imraunicationis, suspensionis, et interdicti, in quantum possum et tu indiges."
3147. Where the absolution is imparted in foro extemo, it is advisable to employ the formula given in the Roman Ritual ' and the Roman Pontifical 2 for absolution from censures in foro externo.* The absolution must be given externally or publicly whenever the censure has been officially published. 4 The same holds of the excommunica- tion incurred for publicly striking an Ecclesiastic, even though no official publication of the censure has taken place. 5 Stremler 6 holds even that the same applies where a censure, though not officially published, is notorious.
Art. II. Conditions of Release from these Punishments.
3148. Some conditions are required on the part of the person releasing, others on the part of the person released. 1. On the part of the Superior absolving it is necessary (a) that he should have power to absolve ; otherwise the ab- solution is invalid, (b) Next, the Superior, before giving the absolution, should obtain full and undoubted information that the person to be absolved is penitent and has receded from his obstinacy, and also demand from him a promise or guarantee that he will in future conduct himself properly. ' Nay, when the correctional punishment has been inflicted for atrocious and very grave crimes, such as scandalously violating churches, severely striking an Ecclesiastic, incen- diarism, etc., the Superior must oblige him to swear that he will obey the commands of the Church, and not commit the offence again in future.8
1 Tit. de sacramento pcenitentise.
Tit. Ordoexcommunicandi et absolvendi ; Cf. cap. 28, de sent, excom. (v. 39). ' Varceno, p. 908. 4 De Herdt, Praxis Rit., p. 50. 5 Craiss., n. 6463.
6 P. 243. 7 Kober, Susp., p. 132 ; Id., Excom , p. 512. 8 Cap. 10, II (v. 39).
J/ des oj . Ibsoltti
J149, 1.1 I'Im Supei i« 'i absoh ing must k ee f 1 ora and unjust feat (metus ) and that the competent judg( oi Superioi must act with ft
..', 1 hat is, in >t b< 1 1. < ii li< 1 l>\ mi just feai 1 >i
physical force, into giving the absolution. A 1 from
censure! extorted l>\ gravi and unjust fear 01 i>\ violent is null and void. ' {d) I te must not I"- <l< < eiv< d a 1 to the principal cause. Hence the absolution is void when ii is obtained through false representations,1 unless it Is apparent that the Superior wishes to absolve, notwithstanding the deceit or misrepresental ion,
5150. — 2. On the part of the person to be absolved it is necessary, though only on pain of the illicitness of the absolution, (a) that he should personally ask to be absolved. The reason is, that, as these punishment 3 are imposed in
order to bring the obstinate offender back to the path of
virtue, they should not be remitted until he has receded from his criminal conduct. Now a person refusing to apply for absolution would certainly not show that he regrets his crimes. We say thong/i only on pain of illicitness ; hence, while a person may be absolved without his request and even against his will, it should not be done except for reasonable causes. 4
31 5 1. (Ii) He must also, as a rule, prior to being absolved, whether in foro interna or in foro cxtcrno, repair the scandal he has given, and make satisfaction for the injury or damage he has inflicted on a third part)'. We say, as a rule ; for the following cases are excepted : first, where it is morally impossible to repair the scandal forthwith ; second, where, in the case of injury to a third party, the latter condones the injury either expressly or tacitly ; third, where the injured party refuses to accept a just satisfaction
1 Cap. unic. de iis qure metu in 6° (i. 20). 9 Cap. 22 (v. 39); Kober, Susp., p. 134. 8 Schmalzg., 1. c, n. 99. 4 Schmalzg., 1, c, n. 100.
270 Modes of Absolution or Release.
offered ; fourth^ where the person to be absolved is unable to make restitution, in which case, however, he must either give a proper guarantee or promise on oath to make resti- tution as soon as he can.1
Art. III.
Modes of Release from these Punishments.
3152. Q. In how many ways can a person be released from correctional punishments?
A. In these: 1. Generally speaking, and apart from spe- cial circumstances, the absolution or release from the censure is granted absolutely and unconditionally.
3153. — 2. But there are cases where it is either inexpe- dient or impossible to grant the release in so perfect and complete a manner. The Superior may find himself obliged to make the absolution dependent on certain conditions, so that it will take effect only after these conditions are complied with, and not otherwise. Hence, if, for instance, the absolution is given thus : " Absolvo te si satisfeceris," the absolution will be valid from the moment it has been given. Vet its effects will be suspended until the condition is fulfilled. The moment this is done it takes effect of itself. But if the condition remains unfulfilled the absolution takes no effect whatever. 2
3154. All agree that such absolution or release is valid and licit, where the condition is of the past or present. But some hold that when the condition relates to something future, the release is invalid. They argue chiefly that, as the sacramental absolution from sins cannot be imparted on a condition to be fulfilled in the future, so neither can the absolution from censures be given on a condition relating to the future. The opposite opinion, however, is to be
1 Cap. Odoardus, de solut. ; Cap. 23 de V. S. 2 Kober, Excom., p. 537.
// i, . .». . Xbsolution Of A\
tained as I he 1 1 tie one. ' For it ii true, nd< ed, i hat I i i amcntal abs< »lu1 i< »n i anm >t be validlj o >nf< 1 1 1
Hut it Is also 1 1 ue I hat I he i el< ai i from 1 1 m m iv >t I
ctanuntal act, but .1 judicial f< tnd
therefore depends on the will ol the eccl< al jud
1 ing it. Thei ef< >i e 1 he lat tei cai m nd 1 he eff< ct 01 make ii contingent on .1 future condition, \ sa< rament, on the other hand, l»\ virtue oi divine institution, produo effect .1 cper< operato, i.e,, at once and immediately, K>n
as the propei matter and form are present. Hence the effect oi a sacrament cannot be suspended by a minist< Nevertheless, the absolutio conditionata from censures must always be considered as th< Mion to the rule, and should
not be given by the ecclesiastical judge 1 scept for good and sufficient reasons oi necessity or utility. ■
3155. — 3. The absolutio ad cautelam is the next mod* releasing from censures. It is given either as a precaution- ary measure in the exercise of voluntary jurisdiction, or as a provisional and precautionary measure in the course of the exercise of contentious jurisdiction. There are many eccle- siastical acts which, when performed by or in favor of a person who is under censure, are either invalid or at least entail certain disadvantages upon him. In order to prevent such invalidity or disadvantage, and to cut off all possible doubt and scruple of conscience, the absolution ad cautelam is given, so that, if the party has really incurred a censure of which he is supposed to be entirely ignorant, he may not suffer therefrom. Thus, in order to remove any possible doubt as to the validity of the sacramental absolu- tion, the absolution ad cautelam is always imparted by the Confessor in the tribunal of penance, immediately prior to giving the sacramental absolution, in these words : " Do- minus noster Jesus Christus te absolvat et ego auctoritate
1 Schmalzg., 1. 5, t. 3a. n. 103. s Kober, 1. c. p. 540.
-;: Modes of Absolution or Release.
ipsius te absolvo omni vinculo excommunicationis (suspensionis) ct interdicti, in quantum possum et tu indiges" x In like manner it is also frequently imparted in advance of the conferring of orders, of appointments to ecclesiastical offices or benefices, and of the conferring of other favors and privileges, in order to remove any possible obstacle to the validity of these acts. s In all these cases it is evident that the absolution ad cautelam is imparted (a) in the course of the exercise of voluntary jurisdiction, (&) and either in foro interno or externo. It is also plain that the absolution ad cautelam, in the above cases, supposes that the censure is unknown.
3156. Besides, the absolution ad cautelam is granted also \\\ judicial proceedings and in the exercise of contentious juris- diction, where it is doubtful whether a particular censure, inflicted upon a person, is valid or not. For, as we have shown above, 3 when a person who is visited with censure by his Bishop appeals on the ground of nullity of the censure, he is to be first provisionally absolved ad cautelam, so that he is free from the censure during the hearing of the appeal. As will be seen, this sort of absolution is made use of only where there is doubt as to the existence of the censure, or its validity or justice, but never where it is certain that a person has been validly and justly put under censure.
3157. — 4. Ad rcincide7itiam. This mode of absolving, which occurs quite frequently, takes place when the absolution or release is granted, not permanently, but merely for a certain space of time, and with the proviso that, under certain contingencies, the censure shall be ipso facto rein- curred, in all its extent. 4 Thus a person under a reserved censure, who, either because he is in articulo mortis or because of some other legitimate reason, cannot present himself for
1 Rit. Rom. de Sacr. poenit. 2 Cap. Super eo 51 (v. 39).
-upra., n. 3037. 4 Kober, Excom., p. 547.
_.
Moda oj Absot
absolution to the Superioi reserving, and who n that account, validlj absolved foi the time being i»\ .1 priest oi confessoi having otherwise no powci togrant th< »lu-
tion, must, according to the express law oi the Church, present himseli to the Superioi reserving and rc< his
commands, as soon as he become! well 01 the oi* ceases.1 II he culpablj fails i«» do s". he falls ipso facte
ain into the censure from which he was absolved. ■ 58. This absolution differs, anion- othei things, from the conditional absolution in this, that, while the latterdo not produce its effect immediately, but remains suspended until the condition is fulfilled, the former takes effect at ona
d remains in force until it is ipso facto revoked by the culpable failure on the part of the person absolved, v.^., to present himself to the proper Superior.
3159. — 5. Finally, the release from the correctional pun- ishment may be imparted only as to a certain effect, v. g., in order that a person under excommunication may become qualified to act as witness, or also as appellant against his Bishop. In this case, however, he is not freed from the censure itself, but only from some ot its effects.3
1 Supra, n. 682. 8 Cap. 22, de sent, excom. in 6° (v. II.)
3 Reiff., L 5, L. 39, n. 266.
SECTION II. Repressive Reform Punishments in Particular.
CHAPTER I.
EXCOMMUNICATION.
3160. Having, in the preceding chapter, discussed cor- rectional punishments in general, we shall now take up each one in particular. As we have seen, there are chiefly three correctional punishments, namely, excommunication, sus- pension, and interdict. In the present chapter we shall confine ourselves to excommunication, reserving suspension and interdict for the two succeeding chapters.
Art. I. Correct Notion of Excommunication.
3 16 1. The right of expelling refractory meinbers is lodged in every society. — Every human society which has an external organization must possess the right to expel from its body or membership any refractory member who, by his own fault, has rendered himself unworthy of belonging to it and enjoying its benefits and advantages. For it is plain that the expulsion of stubborn and ungovernable members is not only necessary to protect the honor and good name of a society, but, moreover, the only means of preserving its very existence. Hence we see, as a matter of fact, that every society, association, club, or guild, no matter how small, has exercised and does exercise this power. Civil society or the State makes use of this power on a large scale. It cuts off bad and unruly citizens from communication with others, by imprisonment, exile, and even death.
mmunication,
\\(
1 1 t hii rig hf 1 1 \ vested in -
lociet} "i association, even though it has but a mat ind
. ui. ii end m \ i<-w . w it li h< >m mm li gi eat i hould
1 1 not be lodged in .1 n ligious society, that has foi its object the tanctification oi its membei Oui natural sei justice and propriet} demands that such .1 societj hall exclude from its communitj all those members who, though repeatedl) warned, neverthel ontinue persistently to
give scandal and to bring religion itself into contempt by their wicked life. ' Onrj by exercising the right in question ' by ejecting from its pale obdurate offenders can such a society preserve its own dignity, honor, and usefulni among men.
3163, Hence we find that even the Pagan and heathen religions of old made use of this punishment.1 Among the Jews the right oi expulsion from the pale of the Hebrew synagogue was exercised on a large scale.' At the present day we see that all the Protestant sects exercise this right of expulsion even more rigidly at times than the Catholic Church.4 There can be no doubt therefore that this power IS also vested in the Catholic Church, the only true Church of God, and that for two reasons: first, because she is an eternal society, and as such she must of necessity possess the means to enforce her rules and regulations, and therefore, to expel refractory members ; second, because our Lord ex- pressly wills it. For as He expressly authorized his apostles and their successors to receive men into the Church, so He also expressly gave them power to expel from her bosom such as had proved unworthy members. 6
1 Kober, Excom., p. 2.
9 Cf. Csesar. de Bell. Gall. 1. 6., c. 13 ; Taciti Germania. c. 6. 3 Cf. Esra, x. 8. « Cf. Const, of Ref. Church in America, p. 47 ; Discipline of the Meth. Ep. Church, pp. 134 sq.
6 Cf. Matth. xviii. 15 sq.
276 Ex co)) 1 7)i it n ic at io)i .
3164. True idea of excommunication, — It would be a mistake to suppose that excommunication is merely an external exclusion from the Church, or the privation of the society or company of the faithful ; for it reaches farther and extends to the soul itself, and deprives it of spiritual and interior favors.1 It is true that it can never of itself separate a man from God and divine grace. Mortal sin alone can do so. Consequently, if excommunication is inflicted, even though it be with the observance of all the legal formalities, upon an innocent person, that is, one who is not guilty of mortal sin, it produces no effect whatever, so far as concerns his relations with God.
3165. But when a person has separated himself from God by mortal sin, the excommunication certainly aggra- vates the unhappy state of such a person, adding misery to misery, bv depriving the sinner, who has lost the grace of God, of the helps and graces which the Church communicates to her children by the sacraments, of the merits and intercession of the saints in heaven, and of the public prayers and merits of the faithful on earth. Hence excommunication is fitly termed # spiritual death, a giving over to Satan, the beginning of eternal damnation. 2 Only a person who can fully realize what an inestimable blessing it is to be a child of the true Church can form a correct estimate of the severity of this punishment. It is the greatest, the severest punishment the Church can inflict.
3166. Hence it should not be imposed save in the most extreme cases, as a last resort, and after all other milder punishments have been vainly applied. The chief object of excommunication, as we have seen, is to bring the sinner back to repentance. He is delivered over to Satan, in order that his spirit may be saved. 3 This, however, is not the only aim of this punishment. A second end is, to preserve the honor
1 Kober, 1. c, p. 17. 2 Kober, 1. c, pp. 20, 21. 3 II. Cor. xiii. 10.
,,
/• 1 1 ommunication,
end dignity oj tki Church, For, a w< ha n, it vrould
,|, mud to the di grace oi the Church, il she allowed members to remain in hei pale whose lives ai meful
.md profligate.
J167, Finally, a third object >s thi ■ f the other faithful* The excommunication is to keep them from being infected by the excommunicate, and deter them from following his bad example. ' Excommunication, as here understood, n 1 . » \ therefore be defined as the expulsion from tk rnal and
internal membership of the Church, the complete withdrawal of all the graces and privileges acquired by baptism, the separation from ilic living body of Christ, and a thrusting back into the helpless state of unredeemed man.'1 Schmalzgruber thus briefly defines it "as a correctional punishment instituted by the Church, by which the excommunicate is separated from the communion or fellowship of the faithful."
3168. From this it will appear that excommunication i total exclusion from all the rights and privileges which a member of the Church possesses, whether in his capacity of simple laic or of an Ecclesiastic. Consequently laics who are excommunicated as vitandi are debarred from the right to receive the sacraments, or assist at Mass and other ecclesiastical functions, or to receive Christian burial, or to associate with the faithful, even in purely human matters.
3169. If the excommunicate be an Ecclesiastic, he incurs, besides the above disabilities of lay excommunicates, the loss of all his privileges and rights as an Ecclesiastic. Therefore he becomes suspended ab officio ct bencficio. Hence he cannot say Mass, nor administer the Sacraments, nor perform any other sacred function ; neither can he exercise any ecclesiastical jurisdiction, nor be appointed to any ecclesiastical office, dignity, or benefice. It may, therefore, be said, speaking in general, that, as by baptism
1 Kober, 1. c, p. 29. " lb., p. 32. 3 L. v., t. 39, n. 112.
2 yS Excommunication,
a person becomes a member of the Church and acquires all the rights flowing from this membership, so by excommuni- nication he forfeits, for the time being, all these rights. And as by ordination a baptized person becomes an officer of the Church and obtains certain powers, so by excommu- nication he is forbidden to exercise these powers.
Art. II. How many Kinds of Excommunication are there f
3170. Excommunication is distinguished into major, which is a complete expulsion from the communion of the faithful, and deprives the excommunicate of all ecclesiastical benefits, and minor, which divests a person merely of the communicatio passiva, v.g., of the right to be appointed to an ecclesiastical office or benefice. Prior to the Const. Apostolicce SedtSj issued by Pope Pius IX., of blessed memory, in 1869, everybody communicating with an excommunicate vitandus in criminc criminoso incurred major excommunication, and those having intercourse with him in divinis, minor. At the present day, the minor excommunication, as inflicted by the common law of the Church, is entirely done away with, since no mention of it occurs in the Const. Apostolicce Sedis ot Pius IX.1
3 1 71. But the major excommunication incurred for having intercourse with an excommunicate still exists, though it is only incurred in these two cases: 1. Where a person communicates in criminc criminoso with a person who is by name excommunicated by the Pope, not by any other Superior ; in other words, where a person know- ingly aids and abets (for tha* is the meaning of communicate in ctimine ctiminoso) another in the very crime for which he has been nominally excommunicated by the Sovereign
1 Com. Reat., p. 58; ^arc, p. 914; Konings, n. 1673: Avanz., n. III.
.
/:' i lomniuntcatiOH* fonlill.' .». Where Kcclesiastici knOWingl) and willullv
communicate in divinu with pci ons who a1 ' ; nanu excommunicated bj the Roman Pontiff, and allow them to pci foi m offii .. i hose iiim i ions whi< h I
pei [i ii mi as such < >r as mini if the Chun to a)
Mass, 01 .insist at Mass.
J172. Major excommunication, which, as wt hav< teen, excludes a person from the Church and the tocietj and communion oi the faithful, Is called anathenta% when it inflicted against heres) or with certain impr< remo-
nies, namely, when the Bishop pronounces it surrounded l>\ twelve priests in sacred vestments and holding in their hands lighted torches, which thev then throw down and tread under foot, meanwhile uttering certain words oi maledic- tion.4 By the word excommunication, used without any qualification, is always meant major excommunication.1 Excommunication is divided, moreover, into that a jure and that ab hotnine ; that which v&ferendce and that which is latm sentential; that which is just and unjust, valid or invalid. All these phrases have been already explained by us.
1 This is the 16th excommunication reserved simply to the Pope, in the Const. Apostolicu Sedis of Pius IX. and is thus given in this Const. : " Communicantes cum excommunicato nomination a Papa in crimine criminoso. ei scilicet impendendo auxilium vel favor em."
3 The Const. Apostoliciv Sedis of Pius IX. thus expresses this excommunication : " Clerici scienter et sponte communicantes in divinis cum personis a Romano Pontifice nominatim excommunicato et ipsos in officiis recipientes." — Cf. Com. in Const. Apostolic^ Sedis, Reate, 1874, n- II2- P- 58.
3 Devoti, 1. 4, t. 18, n. 7. 5 Can. Debent, 106, c. 11, q. 3; Stremler, p. 254.
4 Cap. 59, de sent, excom.
2 So ExconiDiiuiication.
Art. III.
What Excommunicates are to be shunned?
§ I . Former Discipline.
3173. Prior to the Council of Constance (1414-1418), the faithful were bound to shun, both in a social and religious point of view, all persons who had contracted major excommunication, whether a jure and ipso facto or ab homine, and by special sentence, and that even though their excom- munication was not officially published. When the crime was public the faithful had to shun the excommunicate publicly; when it was occult, i.e., known to a few persons only, the latter were obliged to avoid him in private. Now in those days a great many crimes had excommunication ipso facto annexed. Hence large numbers of the faithful incurred excommunication and had to be shunned. Add the uncertainty of knowing for certain whether they were really excommunicated. For frequently no judicial sen- tence or publication preceded the punishment or censure. The faithful were consequently obliged, not unfrequently, to rely solely upon their own private judgment as to whether such a particular person had incurred excommunication or not.
§ 2. Present Discipline.
3174. Naturally enough, many grave doubts and harassing perplexities arose from such a state of things. Persons found it not unfrequently difficult to tell whether they could associate with others or not. Many, therefore, very properly demanded that the obligation of avoiding excom- municates should be restricted to those cases where a clear judicial sentence, made properly public, left no uncertainty whatever in the matter. In view of these circumstances Pope Martin V. issued his celebrated YSuWAd Vitanda in the
/ i omntut ft.
( louncil "i ( !onstan< < . l»\ whit h he < hanged i li< I stood then, and i na< ted i hat in fut urc the faithful not
bound to a> oid ex< i >mmuni< at i h< n i h< \ h
been i \< ommunicated i>\ nam< ind wrh< n, mor< i
theii excommunication had been offii i 1II3 made publi< , and that not merel} in general, but spe< ially and expi
'5, 1 lei e are t he w oj ds oi 1 he Pop< VI \ itai
Bcandala et multa pericula, qu e i ons< ientiis timoratis 1 on tingere possunt " (here then is pointed out the scope oi the Bull, as explained abo\ 1 hristifidelibus tenore praesen- dura misericorditer indulgemus, quod nemo deinceps a communione alicujus, sacramentorum administration! receptione, aut aliis quibuscumque divinis, intus et exti prastextu cujuscumque sententiae aul censurae ecclesiastii a jure vel ab nomine generaliter promulgatae teneatur abstinere, nisi sententia vel censura hujusmodi fuerif lata contra personam .... certain ajudice publicata vel denuntiata specialiter et expresse .... salvo si quern pro sacriiega manuum injectione in clcricum sententiam latam a canone adeo notorie constiterit incidisse, quod factum non possit aliqua tergiversatione celari, nee aliquo suffragio excusari, nam a communione illius, licet denuntiatus non fuerit, volumus abstineri juxta canonicas sanctiones." ' This rule is a sale guide to the faithful in their conduct towards persons under excommunication, though it is, at the same time, a great protection to those excommunicates whose sentence is not published. 2
3176. It is true that the Council of Basle (1435), Sess. XX., Cap. 2, and the Fifth Council of the Lateran (1512-1517), Sess. XL, partly repealed the above favorable legislation of the Council of Constance, by enacting that the faithful were bound to shun all excommunicates whose excommunication was public, or notorious, even though their excommunication liad
1 Ap. Kober, Excom., p. 248. - Miinchen, 1. c„ vol. ii., p. 193.
28 2 /: .t c ommunication.
not been officially made public. But the Constitution of Pope Martin V. nevertheless remained and still remains in full foree. Thus Pope Benedict XIV. writes: " In suo semper vigore permansit (Const. Ad Vitanda),non obstantibus con- trariis Constitutionibus Conciliorum Basiliensis et Latera- nensis." ' It is true that Fagnani and some other canonists hold that the bull of Martin V. was abrogated by the subse- quent decrees of Basle and the Lateran. But, as Pope Benedict XIV. says: 2 " Ejus (Fagnani) tamen doctrina fere communiter rejecta est, cum ubique sit recepta laudata Const. Ad Vitanda" 3
3177. The law, then, of the Church, as it is in force at the present day, is that the faithful are not bound to shun the company or society of excommunicates, except when the latter are publicly dcnou?iced by name as having incurred excom- munication. This rule has now, after the Const. Apostolicce Scdis of Pius IX., no exceptions whatever. For while it is true that, by virtue of the Const. Ad Vitanda of Pope Mar- tin V., persons who were notoriously guilty of laying violent hands on or of ill-treating Ecclesiastics4 had to be shunned, both in religious and social intercourse, by the faithful, even though their excommunication had not been published offici- ally, yet by general custom to the contrary, 5 and by the Const. Apostolicce Scdis of Pius IX., 6 these notorii percussores clericorum need no longer be shunned, save when they are officially and by name published as excommunicates. 7
3178. Hence it may be said that by the Const. Ad Vitanda and the Const. Apostolicce Sedis of Pope Pius IX. all excom- munications and other correctional punishments, namely
1 De Syn.; 1. 6, c. 5, n. 2. 2 lb., 1. 12, c. 5, n. 4.
3 Cf. Miinchen, l,c, p. 192 ; Kober, I.e., pp. 250-255.
4 Cf. Can. 29, C. 17, q. 4. This famous canon, Si quis suadente diabolo, was enacted by Pope Innocent III. and published by him in the Lateran Council, in 1 139.
5 Prael. S. Sulp., vol. in., p. 272.
6 Cf. Const. Ap. Sedis, excom. 2, R. P., res. simpl.
7 Soglia — Vecchiotti, vol. ii., p. 329 ; Cf. Craiss., n. 6504.
/ t ommui h.
ii ipcn ion and intcrdii t, whi< h arc imposed a fun and a lata- stntentia, arc, so loi nsure ii not publi
changed in the external forum into correctional puni ments w bi( h are feti da u n > i.u as 1 1 >n< ern t he
obligations Incumbent on the Faithful to shun th< »m-
municate, both in religious and ^"< ial matters.1
3179. From what has been said it follows that no pei excommunicated a jure, even though he l><- notoriously guilt} oi striking or ill-treating an Ecclesiastic or religioi and no matter how well-known it may be that he has fallen under excommunication, need be shunned by the faithful, rhe reason is that such a person lias not been excommuni- cated by name (the law, whether general oi particular, n< \ excommunicates by name, as is plain) nor publicly < nounced by the ecclesiastical judge.
3180. Whenever, therefore, a person lias incurred excom- munication, as decreed by law, vg., by the Const. Apostolica Sedis of Pope Pius IX., in order that the faithful may be obliged to avoid his company, whether in the religious or in the social and civil life, it is necessary that he be cited by his Superior for trial,- and that, upon conviction, the sen- tence be pronounced, declaring that he is guilty of the crime, and has consequently fallen under excommunication. Afterwards, this sentence must be officially promulgated or made public.3 In like manner, when a person is visited with excommunication ab Jiomiiic, and per scntcntiam partial- larem, namely when, having been placed on trial for crime and found guilt}', he is by judicial sentence excommunicated, he need not be shunned by the faithful, except after this sentence has been officially made public by the judge.
1 Prael. S. Sulp., I.e., p. 272.
3 Except, of course, where the crime is altogether notorious, in which case, as we have seen, no trial is needed, at least theoretically speaking. For, practically speak- ing, a trial is required even where the crime is notorious.
s Craiss., n. 6496-
2 84 Excommunication.
§ 3. Publication of the Excommunication.
3 1 81. How is this publication to be made? It must bvf made (a) officially, i.e., by the judge; (/;) publicly, z>., in a public place, so that it can reach the whole community. Hence the sentence of the ecclesiastical judge pronounced after the trial in the presence of the parties is not a publica- tion as here understood. Provided the publication be made in a public manner or place, v.g., in the parochial church or public square of the city, it is immaterial whether it takes place (1) viva voce, v.g., by public announcement in the parochial church during the time of divine service, when there is a concourse of people, (2) or in writing, v.g., by placards posted in a public place or on the doors of a church, or published in newspapers.
§ 4. Intercourse of the Faithful with " tolerati."
3182. At present, therefore, all persons who are excom- municated, but whose excommunication is not ptiblished in the manner above set forth, need not be shunned by the faithful. Hence they are called tolcrati, or non vitandi, in contradistinction to the vitandi, or those whose company and society the faithful are strictly bound to avoid. Observe, we say the faithful are not obliged to shun the society of an excommunicatus toleratus. For they may, if they choose, shun him, and that even publicly, when it is publicly known that he has incurred excommunication. In fact, not unfrequently it may be very praiseworthy to avoid the company of excommunicates who are tolerated, and thus to isolate them, both in order to bring them more speedily to a sense of their duty, and to guard against the danger aris- ing from bad company.
3183. Observe, moreover, that the Const, of Pope Martin V., which, as above explained, is at present the law of the Church, was made solely in favor of the faithful, not of the
.
/ i otntnunicatu
excommunicate himself. The lat tei tatu • i not / t amelioi at d. Thus the *bo\ <• ( onst, expres l\ j I hoc tamcn hujusm< >di exc< >mmuni n< >n int< ndim
i clc\ .11 11. mi c .1 pei son \\ li<» co >mmuni( ated a
im cannot, oi his "un accord, ate with the faith
(HI. We say, of his own accord ; for, as we shall see furtl on, he m.i\ administer the sacraments to the faithful, etc., .7/ he is asked by i hem to do so. '
3184. I It'll' tin- question arises, whether the faithful
ask for and receive the sacraments from an exc< >mmunicate who Is tolerated (supposing him to be a priest and otherwi associate with him in religious matters* Before answering we premise: 1. We say ', in religious matters ; for ii is per- fectly plain from what has been said thai the faithful can keep up full intercourse with an excommunicate who is tolcratus, in social and civil matters — in humanis : 2. The diffi- culty, in the case, arises from the fact that on the one hand, by the Const, of Pope Martin V., as still in force, the excom- municate toleratus is not allowed himself to have any intercourse, in divinis, with the rest of the faithful, while on the other the latter are allowed thus to associate with him.
3185. We now answer: There are two opinions. Some canonists hold the negative, on the ground that the excom- municate would thus be induced to perform an act which he is forbidden to perform, and thus to commit sin. 2 Others — whose opinion is the more probable — affirm that the faithful can without doubt ask and receive the sacraments in the case from one wdio is toleratus, even when they know him to be under excommunication. For the Const. Ad Vitanda clearly allows them to keep up full religious intercourse with these excommunicates. Accidentallv, however, charity may oblige the faithful not to ask the sacraments from such an excommunicate, when they know him to be in the state of
1 Stremler. 1. c.,p. 268. * lb.
286 Excom m u n tea Hon .
mortal sin, lost they should thus become the occasion of the sacrilegious administration of the sacraments. But when there is a good cause, v. g., when a person wishes to place himself in the state of grace, or make the Easter duty, he is not even bound by charity to refrain from asking for the sacraments from such excommunicates.
Art. IV. Canonical effects produced by Excommunication, even at present.
3186. Before answering, we premise first, these effects may be considered (a) in reference to the person who is excommunicated: (b) to the other faithful who may come into contact with him. In relation to the latter, the effects are that they are bound, as we have seen, to shun and avoid the excommunicate (provided he is vitandus), like a leper spreading around him moral contagion and misfortune. 1 In regard to the excommunicate himself (whether he be toleratus or vitandus), the effect is a total expulsion from the Church, so that he is no longer considered a member of the Church, loses all the rights he has acquired by baptism, and is therefore completely stripped of all the rights and privileges attaching to membership of the Church, and which are common to and possessed by all the members of the Church, in their capacity of members.
3187. These effects show how pitiable is the state of an excommunicate. To be not only deprived of all those spiritual graces and benefits which the Church has at her disposal and which are accessible to all the other faithful and, so to say, their common heritage, but also to be cut off from all intercourse, both religious and social, political and civil, with them, is an awful punishment. 2 It is plain that the law which prohibits the faithful from having any intercourse
1 Cf. Miinchen, 1. c, vol. ii.. p. 167. 8 Miinchen, 1. c.
Ex m >i ■
wh.iii \ er, ocial oi religi >u w it l« i he imunii h< i
I .i n.it in al 1 1 iriscquciK e and i >u v\ h i »i excommunication. Foi in this mannci alone wrill the faithful show theii disapproval and abhorrence oi the excommunicate's rebellious conduct and also l"- preserved from the sinful contagion, and the excommunicate himseli be more easily brought back to .1 oi duty, by hisuttei
isolation.
ji88. Hence also excommunication er) justl) < pared by canonists to the state oi a citizen condemned to exile. ' For, as a Roman citizen condemned to exile lost all his rights oi citizenship, so also docs an excommunicate become divested oi all Ins rights as a citizen oi the city of God on earth, i.e., as a member oi the true Church. Ex- communication, however, is essentially, as to its duration, of a temporary character, It is, as we have seen, a spiritual medicine, a reformatory punishment. Consequently it must be revoked as soon as the delinquent has given proofs of amendment. Then must his spiritual exile cease, and the penitent culprit be reinstated in his rights as a member of the Church. '
3189. We premise secondly, excommunication (we always speak of major excommunication, as the minor no longer exists) cuts a person off from the communion of the Church, that is, expels him from the bosom of the Church, so far as concerns his rights and privileges as a member of the Church, but not so far as regards his duties and obligations. Hence a person excommunicated remains subject to the laws of the Church, just as a person deprived of his rights of citizen- ship is nevertheless bound by the laws of the land. 3
3190. We premise thirdly, In order to understand better what benefits we are deprived of by excommunication, we
' St. Cyprian calls excommunication '* an exile from the Church of Christ." Ep. 49, apud Miinchen, L c, p. 167.
e Miinchen, 1. c, p. 166. 3 Stremler. 1. c, p. 264.
Ext otn tn u Hit t 1 Hon.
must distinguish between the various kinds of spiritual fits a Christian or member of the Church may possess. These benefits are of three kinds; i. Those which are purely interior, namely faith, hope, and charity, divine grace. These constitute the supernatural bond, which unites the faithful to our Lord. 2. Those which are purely exterior, namely, which form that communion or fellowship that is simply external, namely the ordinary relations of social, civil, or secular life, such as conversing together, in a word, all the acts of daily social intercourse. 3. Finally those benefits which make up the mixed communion, namely certain ecclesi- astical and exterior acts or ceremonies that produce spiritual favors and blessings, by virtue of their institution, as the sacraments, the public prayers or suffrages of the Church, the sacrifice of the Mass, benedictions, and other religious ceremonies and public acts of divine worship ; the satisfac- tions and merits of our Lord and the Blessed Virgin and the Saints, as contained in the treasury of the Church and dispensed by her to the faithful by means of indulgences.
3191. Now it is certain, as has already been noted, that excommunication does not dispossess a person of the goods of the first class. For they do not depend on, and are not directly subject to the power of the Church. She is not the exclusive dispenser of them, since God often communicates them directly to the soul, without the Church's intermediary. Thus a person who has incurred excommunication for a crime may by contrition be reinstated in the grace of God, and yet continue to be excommunicated and to suffer all the effects of the excommunication.
3192. Therefore excommunication divests a person only of the benefits of the second and of the third class, namely of those privileges which we have called purely external, and also of those which are mixed. To understand this more fully, we must bear in mind that the Church is the mystical body of Christ ; that the faithful are the members of
/• i ommuniCi
this bodi W< being man] Pan
body in t. and even one. men of anothi 0
this body, Chi I the head. Now, as in the natural bo oi in. in t he \ .M ious mem bei u con itanl l\ influi acted upon, and directed b) the head, so in the mystical body oi "in Lord the ( )hui i li ( )hi isl un
sists, and illumines those who are members ol this mystical body. I'h us St. Paul writ( s : " We ma} in all thin ow
up in him who is the head ; from whom the whole body, being compacted and fitly joined together, by what i joint supplieth, according to the operation in the measure oi every part, maketh increase oi the body, unto the edii ying oi itseli in charil v."
3193. Of the gifts and benefits that accrue to us through this membership with Christ's mystical body some flow more directly from our Lord Himself, as the head; oth< more directly from the Church, to which our Lord com- municated many gifts to be distributed by her among the faithful, through the sacraments, public prayers, etc. Now. as we have seen, excommunication deprives us of all those benefits which our Lord has committed to her as the sole dispenser, namely of the benefits of the mixed and purely external communion, but not, at least per se, of those which arc inter)! a I.
3194. Having thus far spoken, in general, of the effects produced by the punishment under discussion, we now come to its particular consequences, both as regards the person under excommunication, and others. We shall briefly treat of each effect under a separate heading.
§ 1. Exclusion from the Sacraments.
3195. The first effect is exclusion from the sacraments An excommunicate, whether he be vitandus or simply tolera-
1 Rom. xii. 5. 2 Ephes. iv. 15. 16.
2()Q Excommunication*
cannot lawfully receive any of the sacraments <\l the Church except (a) in articulo mortis, when he can be ad- mittedto the Sacraments of penance, the Blessed Eucharist, and Extreme Unction, 1 and (b) unless he is excused by invincible ignorance, the fear of death, of mutilation, loss of property, or of any other grave harm or evil, bodily or spiritual, and then apart f*"o:n any contempt of the censure.2 The reason of this exclusion from the sacraments is plain. For evidently a person who has been expelled from the Church and the society of the faithful cannot be allowed to receive her greatest spiritual favors, to which her good and faithful children alone are entitled. Moreover, the very end and aim of the expulsion is to bring the person expelled back to a sense of duty, by withdrawing from him all his former ecclesiastical privileges, which attach to the mem- bership of the Church. 3
3196. We have said, whether lie be " vitandus" or simply " toleratus /" for the prohibition applies not only to those whose excommunication has been officially made public, and who must therefore be sJmnned by the faithful (denuntiati, vitandi), but also to the tolerati. For the Const. Ad Vitanda of Pope Martin V. has made no change whatever in favor of the excommunicate himself. If a person who is under excommunication, out of the above cases of necessity, receives any of the sacraments, he commits indeed a mortal sin, nay, is guilty of sacrilege, but he does not incur any special ecclesiastical punishment. Yet, while the law of the Church has not laid down any specific punishment in 'he case, it is discretionary with the ecclesiastical judge or Superior to inflict such punishments in the case as he may deem proper. However, in the case of a person excommunicated who knowingly, — i. e., who knows he is under excommunication and that the reception of orders is
1 Prael. S. Sulp., 1. c, n. 770. 2 Craiss., n. 6509.
3 Kober, 1. c, p. 280. * Kober, 1. c, p. 282.
/ t ommun
foi bidi len t < » ex< i tmmunii at re< • the L
expressl} provides that he shkll U forevei deposed
lesiastical Superioi
H97, From the fact that excommunical re forbidden to 1 e< ei> e, it follows as .1 l< >gi< al ant I ne< 1 quen<
that priests and other ministers oi the Church arc obliged to refuse to administer the sacraments to person who are excommunicated, though <>nl\ \\ hen the latter are vitandu 5 For such administration would be a communicatio in divinis with such excommunicates as are to be shunned, A pri< 1 or other Ecclesiastic who nevertheless knowingly and wil- fully > and therefore maliciously, administers the sacrami • to them commits a mortal sin and, moreover, incurs at present, according to the Const. Apostolicee Sedis of Pius IX., excommunication reserved simpliciter to the Pope, if the excommunicates in the case arc such as have by name been excommunicated by the Pope himself and publicly de- nounced as such. 3
3198. We say, by the Pope himself ; for, when an Ecclesiastic administers the sacraments to persons excommunicated by name and denounced as such by the Bishop or other lawful Superior, he incurs ipso facto only the interdict ab ingressu ecc/esice, as appears from the Const. Apostolica Sedis of Pope Pius IX., which reads: " Scienter celebrantes vel celebrari facientes divina in locis ab Ordinario, vel delegato judice, vel a jure interdictis, aut nominatim excommunicatos ad divina officia, seu eeelesiastiea sacramenta, vel ecclesiasticam sepulturam admittentes, interdictum ab ingressu ecclesiae ipso jure incurrunt, donee ad arbitrium ejus, cujus senten- tiam comtempserunt, competenter satisfecerint."4
3199. We have said, though only when the latter are vitandi ; for at present it is allowed, as we have seen, to communicate
1 Cap. 32 de sent, excom. (v. 39) ; lb. Glossa , v. ordinibus.
9 Cap. 18 de sent, excom. \y. 39). 3 Cf. supra, n. 3043.
4 Const. Ap. Sedis 1869, Interd. lat. sent., res. ii.
2 Q 2 Ext o m m u n tea t io?i .
even in divinis with those excommunicates who are tolcrati. Hence ecclesiastics who administer the sacraments to tolcrati do not incur the above or any other ecclesiastical punishment. However, it must not be imagined that on this account a priest is altogether free to administer the sacraments to tolerati. For the general rule that unworthy persons are not to be admitted to the sacraments must be applied also to the excommunicates in question. Besides, a priest who without cause admits such persons to the sacraments might easily confirm them in their obstinate and perverse conduct, and moreover cause great scandal among the faithful. There can be no doubt, therefore, that a priest who, wilfully and without a reasonable excuse, ad- ministers the sacraments to tolerati, commits a mortal sin.1
§ 2. Excommunicates cannot administer the Sacraments.
3200. It is manifest that a person who is expelled from che bosom of the Church, and who is to be considered as a heathen and publican, cannot, with any propriety or decency, be allowed to dispense and administer her graces and means of salvation and her choicest gifts ; nor to be her representative and authorized agent in the performance of holy functions. 2 Hence a person, or rather a priest or other Ecclesiastic under excommunication, is strictly forbid- den to administer the sacraments, or, to say Mass, or, in general, to perform any ecclesiastical or sacred function whatever. 3 This is the general rule, which applies equally to the vitandi and the tolerati.
3201. Like all rules, however, this one also has its excep- tions. Here a distinction should be drawn between an excommunicate who is to be shunned, and one who need not be shunned. The former — a vitandtis — can administer the sacra- ments— only (a) in case of extreme necessity, namely, to
1 Kober, L a, pp. 285, 2&0. » lb., p. 290.
* Arg. c*p. ult. de cler. exc. min. (v. 27) ; Kober, 1. c, p. 290.
i
/ \tt<m,
persons who arc in artieulo mir/ir, and who cannot n
the sa< raments from anoth< i pri( I lint what sa< ram< nt can th vitandus administei to the dyin on in th<
h Is admitted bj cai its that he can administei Bapti
and Penance, since these sacraments are ol the great necessity. It is disputed whether he can confei the Sacra ments oi the Eucharist and Extreme Unction. With Kobei ' we hold that he ran also administei the l> Eucharist, or rather Viaticum, in the case. For, \i the law oi the Church allows a person who is in need to n bread and other food from the hands oi nvitandus, wh\ should this same law make it unlawful for a dying person to receive the Bread oi Heaven from such a person*"3 It generally conceded by canonists that the other sacraments -namely, Confirmation, Extreme Unction, Holy Orders,
and Matrimony, cannot be administered by the vitandus, even to a person in artieulo mortis. For these sacraments are in no sense absolutely necessary to salvation. How- ever, in regard to Extreme Unction and Matrimony Kotx allows certain exceptions.
3202. (b) Secondly, the vitandus is authorized to adminis- ter the sacraments, (not only some, but all the sacraments) and also perform other sacred functions, whenever he is, so to say, compelled to do so, either by force (vi) or graze fear (metu gravi), v. g., when he is threatened with death, muti- lation, or loss of his property, and also when, being an occult * excommunicate, he would, by omitting those actions, mani- fest his crime and thus defame himself or incur other serious injury. 5 For the law of the Church does not bind under such grave disadvantages.
3203. The toleratus, on the other hand, can administer the sacraments and perform ecclesiastical functions, not only in
1 L. c, p. 296. 2 Cf. Schmalzg. , 1. 5, t. 39, n. 146, 3 L. c, p. 267.
4 The excommunication of a vitandus may be occult in some Dlaces. 6 Supra n. 1716 s<i. ; Kober, 1. c, p. 291.
:94 Excommunication*
the above cases, in which a vitandus can, but also whenever he is asked expressly or tacitly by the faithful to do so. For, as was seen, the Const. Ad Vitanda of Pope Martin V. allows the faithful to communicate, not only in humanis but also in divinis, with a toleratus ; the}' have, consequently, speaking in general, a right to ask him for the sacraments ; and he, on his part, when thus asked, has a right to comply with the request. We say, when thus asked ; for of his own accord the toleratus cannot exercise any of the above func- tions, since the Const. Ad Vitanda was enacted only in favor of the faithful, not of the excommunicate himself.
3204. When, out of the above cases, an excommunicate, whether vitandus or toleratus, maliciously or intentionally, i.e., knowingly and wilfully, administers sacraments, or says Mass, or performs any other act of the ordo, he commits a mortal sin, and moreover incurs irregularity, * and that whether he be a vitandus or simply a toleratus. 2
3205. It should be observed here that, except in the cases above given of necessity, etc., the sacraments conferred by a person excommunicated, even though he be a vitandus, are illicit indeed, but yet valid. The Sacrament of Penance alone is excepted, it being undoubtedly invalid, if adminis- tered, out of the case of necessity, by an excommunicate who is to be shunned. The reason is, that, besides the power of the ordo, the power of the jurisdiction is indispen- sable to the valid administration of this sacrament. Now a vitandus is deprived by the Church of all ecclesiastical jurisdiction. This, however, does not apply to a toleratus, since the Church does not divest him of jurisdiction with regard to those who apply to him for the sacrament.
3206. As the vitandi are, out of the cases given, absolute- ly forbidden to administer the sacraments, so are the faith- ful, on their part, strictly prohibited from applying for or
1 Cf. supra, n. 31 18 sq; 2 Kober, 1. c, p. 309.
I
/• t , ommui
ti , th( ia< i .in hi 1 1 / / <>>>t i Ik in, except in tli''
.if), »\ ( Btated \n'l ii t h< j 'i( * ei i h( lo so, thej d immil
.1 nit n taJ tin, but, .it pi i ■■■< nt, d< i not im ui anj
nonicftl punishment, the excommunication, whit Ii wasform-
crl\ incurred foi the communicatio in . in tin
ii,>w abrogated.
( )ni\ t he i ecept i< >n o\ oi dei < i >nsf it utes an i tion, Foi those who knowingl) receive orders from a Bishop who is excommunicated, suspended, or interdicted as vttandus, incur al present ipso jure suspension from the orders thus received. This is expressly enacted in the Const. Apostolica Sedis of Tope Tins IX.. issued in 1869, which reads : " Suspensionem ab ordine suscepto ipso jure incurrunt, qui eundem ordinem recipere praesumpserint ab excommunicato, vel suspenso, vel interdicto nominatim denuntiatis, aut ab haeretico, vel schismatico notorio; eum vero qui bona tide a quopiam eorum est ordinatus, exer- citium 11011 habere ordinis sic suscepti, donee dispensetur, declaramus." '
§3. Withdrawal of tJic " suffragia ecclesia"
3208. Excommunicates, at least when they are vitandi, are excluded (a) from all share in the public prayers of the Church, recited by the faithful or the priest, in the name of the Church, (/>) from the liturgical prayers said by the priest in the name of the Church, especially during the Sacrifice of the Mass, (V) and from all participation in the indulgences granted by the Church. 2 This privation is a great loss to the excommunicate. For in all the prayers which are found in the public liturgy, v. g., in the missal, breviary, etc., and which the priest recites not unfrequently, together with the faithful, during the Mass, or when saving the brevian , or in public processions, or other liturgical functions, the
1 Susp. 6a Const. A p. Sedis ; Cf. Kober, 1. c, p. 315. * Arg. Cap. 28, 38, de sent, excom. (v. 39).
Excommunication,
Church ever offers up supplications to God for the welfare of all her children. All the members of the Church partici- pate in, and are benefited by these prayers. The excom- municate alone is excluded from them.1 For him alone the Church offers up no prayers.
3209. We have said, at least when they are " vitandi ; " for it is controverted whether the tolerati are also excluded from these prayers. Many canonists hold the negative. Kober - and other eminent canonists maintain the affirma- tive, chiefly on the ground that the Const. Ad Vitanda did not make any change whatever in favor of the excominu- nieate himself We have said, secondly, public prayers ; for neither the tolerati nor the vitandi are deprived of the private prayers of the faithful or the priest. Hence, while the faithful can offer their private prayers for an excom- municate, they are forbidden to include him or pray for him when they offer up the public prayers of the Church.
§ 4. Excommunicates cannot assist at the Mass or other Ecclesiastical Functions.
3210. In the first place, an excommunicate, whether he be vitandus or toleratus, is strictly forbidden to assist at the sacrifice of the Mass.'' Hence, if, notwithstanding this pro- hibition, he assists at the Holy Sacrifice, he commits a mortal sin, unless he does so from ignorance, the necessity of avoiding scandal, or the loss of his good name, or from some other grave cause. We say, whether lie be vitandus or toleratus; for to be present at the Holy Sacrifice is evi- dently a communicatio in sacris with the priest celebrating and the people hearing the Mass. Now, not only the vitandi, but also the tolerati are forbidden to communicate in sacris with others. For the Const. Ad Vitanda made no
1 Kober, 1. c, p. 241. 2 lb., p. 267-272. ; Cf. Schmalzg., i. 5, t. 30, n, 126.
3 C. I, dist. 25 ; Cap. 43 de sent, excom. (v. 39;.
/ i ommunu ation*
alteration w hatevei in the old ition, in
municatt himself,1 As, on the one hand, th< >m
municate i ■ not pei mitted to be p t at the Holj Ma
on ilu- othei . ai e the pi iesl and lit hful pi ohibitcd,
the one from sa} ing, the othei from it Ma in hi
present e
j • 1 1 . Q, What is to be <l<>nc. therefore, ii an ex< om municate is present, or assist ! at i he Ma
. /. [f he be a toleratus, the Mass should not be interrupt or intermitted, rhis Follows from the principles all laid down. For, while the toleratus himself Is forbidden to communicate in divinis with others, and therefore to at Mass, yet the celebrant in the case and the faithful are free to communicate thus with him, and consequently to celebrate, or assist at Mass, in his presence.
3212. II he is a vitandus, the celebrant, cither personally or through another person, should call upon him, by nam'-. to leave the church. If he refuses to obey, he should be ejected, and that even by force, if need be. If he cannot be put out without danger of greater evil or causing serious disturbance in the church, then (a) the others who are present must go out ; otherwise they commit sin — ac- cording to some, a mortal sin, according to others only a venial — bv associating or communicating in religious matters with a vitandus. (J?) The priest should break off the Mass and leave the altar, in case he has not vet begun the " canon " of the Mass. If he has already commenced the canon, he should continue the Mass, though only with one server or altar-boy — (all the others being obliged to leave as above stated), as far as the communion inclusive. After consuming the Sacred Blood, he should forthwith leave the altar and finish the prayers that follow after Com-
1 Kober, 1. c, p. 323; Schmalzg., 1. c, n. 130.
2 Cap. 18 de sent, excom. in 6° (v. II).
Excommunication*
munion In the sacristy or some other proper place, or omit them altogether. '
3213. It the celebrant does not observe this, but knowingly and wilfully celebrates Mass in the presence of a vitandus, he sins grievously, and, moreover, incurs at present, ipso facto, [a) the interdiction ab ingrcssu ccclcsice, if the vitandus has been excommunicated and denounced as such by a Bishop or delegate jndge ;2 (b) and ipso facto excommunica- tion reserved simply to the Pope, if the vitandus in the case has been excommunicated by the Roman Pontiff. 3
3214. Observation. — The vitandus, in the case, not only sins mortally by assisting at Mass, but, moreover, according to the Sacred Canons, as contained in the Corpus Juris, incurs a new excommunication reserved to the Pope. 4 The same applies (a) to persons interdicted, when their interdict has been officially made public ; (b) and to all those who pre- vent in any way the person excommunicated or interdicted from leaving the church. 5 We say, according to the Sacred Canons^ etc. ; for the Const. Apostolic^ Sedis issued by Pope Pius IX. in 1869 is silent regarding- this excommunication. Hence it would seem to be abolished. 6
3215. As the excommunicate is excluded from the hear- ing of the Mass, so is he, moreover, forbidden to assist at the other divine services or functions of the Church — officia divina. By divine services {officia divind) are meant the saying of the breviary in choir, public processions and prayers, the blessing of the Holy Oils, of water, of candles, tnd other ecclesiastical functions of a similar kind.7 An excommunicate, even though vitandus, can, however, assist at sermons* and enter the church, in order to pray privately,
1 Clem. 2, de sent, excom. (v. 10) ; Cap. 16 de sent, excom. (v. 39) ; Kober I. c, p. 324.
2 Const. Ap. Sedis of Pope Pius IX.. n. 17; Cf. cap. 8 in 6° (v. 7).
3 Const, A p. Sedis Pii IX., Interdicta, n. 2. 4 Clem. Graves 2, (v. IC). 5 lb. * Cf. Craiss., n. 6525 ; Varc. p. 919.
■ Kober, 1. c, p. 326. 8 Cap. 43 (v. 39).
/■I , nunication*
l>i i >\ idcd i he ab< w «• di\ inc i >ffi n< »t b<
at i he i irae. Vgain, i h< >ugh h it allow ed to i < < it
i iiii m'\ ci i heles9 l>« uind to it in pri\ aU ,
!>\ himself, rhe faithful, <»n theii part, arc bound not to assist .n .m\ i which the vitandus Bhould pi
sume to be present.
qualification for Appointment to Ecclesiastical 0
3216. An even ordinal*) societies or associations would violate all rules of prudence, justice, and propriety, if tl, should appoint a person whom they had expelled from th< membership for violation <>l their rules to any office or position in the society, so neither can so great and holy a society as the Church allow any one who has been excom- municated or sxpelled from her pah- to be appointed to any
lesiastical office, position, or dignity. ' If she did otherwi she would openly contradict herself. For by excommuni tion she would, on the one hand, forbid the excommunica to hold any intercourse, especially religious, with the rest of her members ; and on the other, by appointing" such a one to an office, give him the fullest liberty to associate with them in religious and social matters.
3217. Hence the law of the Church, as still in force, expresslv provides that an excommunicate is absolutely incapable of being appointed to benefices or ecclesiastical offices of any kind. ■ And if he is, nevertheless, appointed to such offices, the appointment is ipso jure null and void. 3 This disqualification must be understood in the widest sense of the term, both as regards the benefices and offices, and the person excommunicated. Hence it extends, 1. not only to excommunicates who are vitandi, but also to tolerati. For although at present, as we have seen, the faithful can communicate or associate with a tolcratus, ever, in religious.
1 Kober. 1. c. p. 340. - Cap. Postulcsti', 7 vv 27).
8 Cap. I, de rescr. in 6° (i. 3) ; Kober, 1. c, p. 340.
^oo Excommunication,
mutters, yet the toleratus himself must keep aloof from all iciation in religious matters with the faithful. Hence he cannot accept any appointment whatever. In fact, the appointment is evidently a favor to the appointee. Now, as was seen, the Const. Ad Vitanda, which is now the law on the matter under discussion, has made innovations only in favor ot the faithful, but not of tlic excommunicate himself. Conse- quently every excommunicate, whether he be vitandus or toleratus, notorious or occult, is absolutely disqualified for an ecclesiastical appointment. '
3218. — 2. The disqualification applies, moreover, to all ecclesiastical appointments whatever, and, therefore, not merely to beneficia proper, which are conferred for life, whether major a or minora, whether curata or simplicia, whethe" s&cularia or regit I aria, 2 but also to all ecclesiastical offices, positions, or dignities of whatever kind which are conferred but temporarily, i. c, without any fixity of tenure, in other words, whose incumbents are removable, such as adminis- trators of dioceses, delegated judges, and removable pastors. 3
One of the reasons is that excommunicates are forbidden to exercise the functions of ecclesiastical offices, and conse- quently they are excluded from the offices themselves, since the beneficium datur propter officium. 4 Hence the appoint- ment in the United States of an excommunicate to a parish or other ecclesiastical office, though we have no benefices proper, is null and void. All Superiors having the power of appointment are strictly forbidden to attempt to appoint an excommunicate to any ecclesiastical office or position.
3219. — 3. The disqualification, however, does not comprise benefices or ecclesiastical offices to which the excommuni- cate had already been appointed before he became excommuni- cated. In other words, excommunication incapacitates a
1 Kober, 1. c, p. 344. 8 lb., p. 342. 3 Schmalzg., 1. c, n. 148.
4 Cap. 15, de rescr. in 6° (i. 3).
/- i mm m
pci s< mi io be appointed to an i >ffi< e i >i bcn< ■■ it do n< A depi i\ e him, at lea I of the bci id < >ffi<
w huh be -ill ead y po rhi bat the ( Inn < h
considers the state oi .1 pci ion und communication
only as a temporary state and, therefor isk to
itrip him rj to .■ /./< 10 oi his < >iiu e « w ben< fi< e. '
\\ :\ . 0/ Av/.s/ '•; t. »i in- In »■« 1 1 \ ' ■■■ < < immu
nicai u >n maj cause 1 he 1 >rivat ion of 1 1 1 « »ili« 1
namely, where the excommunicate remains foi a yreai or long( 1 in the excommunication. Forthe law oi the Chun h is that persons who are suspended, excommunicated, Interdicted shall, il they obstinately remain a year or long in their censure, ami do not seek to be released from it, be deprived oi their offices or benefices
J221. O. Does excommunication deprive the excommuni- cate d1 the fruits or income (with ns, salary oi Rector, assistant, etc.), of his benefice or office ?
A. We premise: We have already seen that, while excommunication suspends the excommunicate from his office, it does not deprive him of the office itself. We now answer : We must distinguish between benefices and offices legitimately and peacefully held by the excommuni- cate, and those to which he was appointed while under ex- communication. In the latter case, he has no right whatever to the income, since the appointment itself was absolutely null and void, as we have seen.
3222. In regard to the former case, namely, in regard to the offices and benefices to which the excommunicate had been lawfully appointed, prior to his falling under censure, we refer the reader to what we have said above, Nos. 1874, 1875, where we fully discuss this whole matter, and show that the excommunicate forfeits his income, for the time being, except in case of extreme need, when he is entitled
1 Kober, 1. c, p. 350. 3 Cap. 8, de sec. et qual. (i. 14) ; Can. 36, c. II, q. 3.
302 Excommunication.
to what is necessary to preserve his life. But while it is certain that excommunication deprives the excommunicate of his ecclesiastical income, ' it is debated among canonists whether it does so ipso jure, or only post sententiam judicis. Kober- and others maintain that the excommunicate is deprived of his income ipso jure, i. c, by the very fact of his having fallen under excommunication, and without any judicial sentence. Schmalzgruber ;! holds it. as the truer opinion that he forfeits it only upon judicial sentence.
$J 6. Withdrawal of the " Cotnmunicatio Forensis"
3223. The excommunicate is excluded from all judicial pro- ceedings in ecclesiastical courts, and consequently from the t unctions of a judge, (with us, also members of Commissions of Investigation, where these bodies still exist), accuser or plaintiff, witness, notary, secretary, advocate, and procu- rator or attorney. This exclusion or disqualification is expressly decreed by the Sacred Canons, as still in force, also with us, and is, moreover, simply the result or conse- quence of the law of the Church, forbidding any intercourse whatever between the excommunicate and the faithful. For it is plain that in judicial proceedings the excommuni- cate necessarily comes into direct contact with the faithful, namely, with the parties interested, such as the judge, the opposing party, the witness, etc.5 Besides, the Church, by depriving the excommunicate of all standing in her courts, and of all his judicial rights and advantages, wishes to make him realize his utterly helpless condition, and thus to cause him to return sooner to the path of duty. 6
3224. We say, in ecclesiastical courts ; for, although for- merly the disqualification extended also to secular courts, *
1 Cap. 53, de app. (ii. 28). " L. c, p. 351.
3 L. c, n. 158. 4 Cap. 12, de except, (ii. 25).
6 Kober, 1. c, p. 416. 6 Cap. I, de except, in 6° (ii. 12.)
7 Kober, 1. c, p. 417.
/: Mi m > H
I el . -ii i he pn k ni day, il
courts. I he 1 east hi ii . i hat . .11 pi t, bj
I. It II Ml HI i< Mlllllllllll .11 H Ml bCt W «' M I II' Mlllllllii
even though i itandus% and the faithful, is allowed it tlat idly matters,
\\ hat has been said <>i t h< ex< lusion of th i >m«
municate h ora all • hai e 01 part u ipaf ion in e< tical
juridical proceedings, applies, in its rigorou nly to
flu- M vitandi /' thai is. the} alone are to be excluded officio and absolutely from these pi ind that
whether the faithful, or the parties interested, demand it oi not. The ecclesiastical judge is bound * etc to repel
them, even though he is not asked to do so.1 But as regards the tolerati,i\ must be borne in mind, as we hav< repeatedly noted, that the faithful may keep up their inter- course with them in all matters, religious or civil , and therefore also in juridical proceedings. 1 fence the toleratuf may, unless the faithful object, fulfil the office of judg accuser, witness, notary, advocate, and procurator.
3226. We say, unless the faithful object ; for, as we have seen, it is optional with them to associate with the toleratuSy or not. They are at perfect liberty to object to his acting- or being admitted either as a judge, or in any other capacity. Nay, they can make this objec- tion at any time during the judicial proceedings. 2 And if the objection is proved, that is, as soon as the per- son objecting has shown that the person objected to is really under excommunication, the latter must be forthwith set aside. However, as it not unfrequently happened in ecclesiastical causes that the exception or objection of excommunication was made maliciously and solely for the purpose of causing delay, the Sacred Canons, as still in force, enact that the person who objects to another on the score
1 Kober, 1. c, p. 418. 2 Cap. 12 tie except, (ii. 2$).
304 Excommunication.
of excommunication must prove, within eight days, that hi& assertion is true, namely, that the person objected to is really under excommunication. Otherwise, the ecclesiasti- cal judge should proceed with the case and condemn the person objecting to the expenses as taxed by the court, incurred by the person objected to. l
j22~. While, however, an excommunicate cannot act as accuser or plaintiff before an ecclesiastical tribunal, yet he is obliged, it cited, to appear before it as defendant or accused in actions brought against him. Otherwise, as is plain, he would be able to elude justice, escape punishment, and thus be benefited instead of injured by his excommuni- cation. As such defendant or accused he retains the full right and liberty of defending himself, just as though he were not excommunicated. 2 For the right of self-defense is a right guaranteed by the very law of nature, and therefore cannot be taken away by the law of the Church. In fact, the Sacred Canons expressly guarantee to the excommuni- cate the full right of defending himself. ' Finally, such an excommunicate, when cited as an accused or defendant, can appear and defend himself either personally or through counsel. 4
§ 7. Loss of the Rights of Jurisdiction.
3228. It is certain that an excommunicate is deprived of ecclesiastical jurisdiction, in such a manner that he cannot licitly exercise any act of jurisdiction, whether voluntary or contentious, whether of the internal or external forum. ft The reason is, that it would be very unbecoming that a per- son expelled from the Church should nevertheless exercise jurisdiction over the other members of the Church.
1 Cap. 1 de except, in 6° (ii. 12) ; Cf. Cap. 21, § 2, de off. del. (i. 29).
2 Kober, L c, p. 422. 3 Cap. 5 de except, (ii. 25). 4 Stremler, 1. c. , p. 274.
6 Arg. cap. 24. (ii. 27) ; Cap. 1 in 6° (i. 13) ; Cap. 10 in 6° (i. 14).
/• VCOfHi
\ n, i »i <liii.il \ juri di( 1 1« »n i . .il w to
and therefore lost o i tided with an cccli
Mow excommunication ion ab
.Mid t In i efi \\ e als< i i he p\ « Mbit ion to < ti< al
ini isdict i< >n. I lesi< h >mmuni< al i< >n, as we ha
Forbids all intercourse between t h<- ex< ommuni< ate and i he faithful. N>>\\ the exen i^< oi jurisdu tion \>\ immu-
nicate would certainl} be a direct inter and communi
cation betwe< n the former and the latter. ' What we ha said thus far holds not onty oi excommuni< it< who are to be shunned (vitandi) but also ol the tolerati. For the latter commit a mortal sin by exercising any ad of jurisdiction unless they are requested to do so by the faithful.
We have said that the excommunicate cannot licit ly exercise jurisdiction. The question now arises whether he can do so validly. Here we must distinguish between the vitandi and the tolerati. All canonists agree that a vitandus is completely divested for the time being of all ecclesiastical jurisdiction, whether ot the internal or external forum, whether ordinary or delegated, contentious or voluntary, and that, consequently, all acts whatever of jurisdiction performed by him, while he is under excommunication, are null and void, and not merely illicit. ■
3231. Hence such an excommunicate cannot validly (a) make any appointment whatever to an ecclesiastical office or benifice ; {&) act as judge or pass judicial sentence ; (c) hear confessions, except in case of extreme necessity; (a) give faculties to administer the sacraments ; (e) act as elector or be elected or appointed to an ecclesiastical office. This, however, does not apply to the election of the Pope. For the law of the Chinch, as still in force, in order to cut of! all occasion of schism, ordains that excommunication does
1 Kober, 1. c, p. 361. 8 Schmalzg., 1. c, n. 164.
Excommunication,
not disqualify any one from the right of electing or being elected the Sovereign Pontiff.1
3232. Note thai all acts whatever of jurisdiction, whether
voluntary or contentious, performed by a vitandus are ipso facto null and void. Hence a person upon whom, for example, an ecclesiastical Superior — Bishop or Archbishop — who is vitandus, pronounces sentence, and inflicts, v. g., suspension or some other punishment, need not, nay should not obey or comply with the sentence. 2
3233. With the tolcrati, the case is different. They are indeed forbidden, of their own accord and without being requested, tacitly or expressly, to have any intercourse with the faithful, as we have seen, and hence cannot validly exercise any jurisdiction, whenever they are objected to by the faithful. But when no objection is made to them by the faithful, then the law of the Church takes it for granted that they are requested, at least tacitly, to exercise jurisdiction. Hence the tolcrati, even when it is publicly known that they are under excommunication, can validly exercise ecclesiastical jurisdiction, as long as no objection is made to them by the faithful or the parties interested, on account of the excommunication.
3234. We say, as long as no objection is made to tliem ; for, as we have seen, the faithful or the parties interested are at liberty to object at any time to the toleratus, on the score of his excommunication. They are free to accept his acts of jurisdiction in any matter they please, v.g.% in matters when they are benefited, such as appointments to office ; or to reject them in affairs which are disadvantageous to them, such as criminal proceedings against them. It is plain, therefore, that, if the faithful or the parties interested object to the toleratus, because of his excommunication, the latter becomes forthwith, — i.e., as soon as the exception has been proved —
1 Clem., C. 2, § 4, de elect, (i. 3) ; Kober. 1. c., p. 371. 3 Can. 4, c. 24, q. I.
/ i Uion,
incotnpcti i '///»/ */// fl
juris, iu t : >:. t >i<
a/id, ' II >u r\ er, i he « >bje< i i< >n, 01 .1 if 1 technically termed, txeep xcommunicationis^ must be not merel) wm hut also clearly and fully proved^ and that, as u< nave seen, within eight days. •
Tins legislation oi the Chun h, bj whii h the a*/ > • are not absolutely deprived ol jurisdiction, is right and proper, For the good ol the faithful and the tranquillity oi their conscience require that thej shall not be subject to constant doubts, as to the validity ol the jurisdictional a< ol their Superiors. Now it is evident that, il the acts of jurisdiction oi a toleratus were eo ipso invalid, continual p< plexities would arise as to the validity oi the acts oi each and every Superior.
§ 8. Refusal of Christian Burial.
3236. Excommunicates who are vitandi,* and who die while under excommunicat ion, without any sign of cont rition and without having received absolution, are excluded from the honor and benefit of a Christ inn burial;* in other words, their bodies must be buried in unconsecrated ground, and without anv of the obsequies, rites, prayers, or solemnities with which the Church honors her faithful children who have died in the Lord. For the scpultura ccclesiastica, of which a vitandus is deprived, means three things : (a) to be buried in consecrated ground ; (b) with the ecclesiastical rites, prayers, and ceremonies, usually performed at funerals in the church or at the grave ; (c) the subsequent solemnities, such as the requiem of the month's mind. 6
3237. In fact, it seems eminently proper and fitting, nay
1 Cap. 12, de except, (ii. 25^ ; Schmalzg., I.e., n. 1661.
3 Cap. Pia, de except, in 6Q (ii. 12). 3 Kober. Lc, p. 365.
4 lb., p. 337 ; Schmalzg., I.e., n. 127. 5 Cap. 12, de sepult. (iii. 28). « Kober, I.e., p. 331.
308 Ex co)> i m u )i it t it ion .
necessary to the maintenance of ecclesiastical discipline and order, that the Church shall not allow those who have been obstinately rebellious, and die thus, to be buried alongside of her true and obedient children, and be accorded those obsequies and funeral honors which she justly reserves for those who are in her communion.1 Moreover, both the sacred ministers of the Church and the faithful would evi- dently become guilty of communicatio in sacris with an excom- municate vitandus, by performing the customary funeral rites o( the Church, in the case, or assisting at them.
3238. Hence, also, all those who knowingly assist at the funeral of a vitandus and accompany the remains to the grave are guilty of forbidden intercourse with an excom- municate and commit sin. For intercourse with a vitandus is forbidden, not only when he is alive, but also when dead, until he has been absolved.
3239. Moreover, those who knowingly and wilfully and with contempt for the law of the Church, either by force, or threats, or other unlawful means, procure ecclesiastical burial for a vitandus, incur ipso facto, also at present, major excommunication. Thus the Const. Apostolical Scdis of Pope Pius IX., decrees : " Excommunicationi lataj sentential nemini reservatac subjacere declaramus, mandantes seu cogentes tradi ecclesiastical sepulturac haoreticos notorios ant nominatim excommunicatos vel interdictos." Further- more, those who knowingly permit (v.g., parish priests or others in charge of Catholic cemeteries) the burial of a vitandus, incur at present, according to the Const. Apostolical Scdis of Pius IX.,2 ipso facto, the inter dictum ah ingressu ccclesia>, and remain under it, until they shall have made condign satisfaction to the Superior whose sentence they have contemned by their action. 3
3240. Nay, the Church goes farther and enacts that, where
' Kobcr, I.e., p. 331. '2 Interdicta, ii. ( f. Kolx r, I.e., p. 353.
/■ i mmunieatum*
.1 i tdui 1 1. is been buried in .1 Catholi( cemetery, eithei a< cident , error, or force, hi I •■ 1 I j is to i>« exhumed and to be buried elsewhere, in unconsei rated ground, provided his
i\ c i .in be 1 1 uished U om 1 he grav< s ol <»i hei . 1 1 it
cannot be so distinguished the remains Bhould no burned, lest otherwise, l>\ mistake, the bod} ol a person not excommunicated be taken foi that ol .1 vitandus and 1 humed in Ins stead. ' But in both cases, the 1 emetei \ must be considered as polluted^ and no burials « an take place in it until it has been formal^ reconciled oi ated anew.1
3241. This legislation may seem altogether too harsh to an age ol mistaken sentimentalism like th< present. But it is none the less founded on the justest reasons of propriet} and discipline. For the Church owes it to those ol her faithful children who lie buried in consecrated ground to watch over the sanctity of their last resting place, where they sleep till awakened by the mighty trumpet sound of the resurrection.
3242. With the tolerati the Church deals in a milder man- ner. As the faithful can, if they choose, associate with a toleratus, the Church does not den)" them Christian burial. ' If, however, a toleratus who is known to be an excommuni cate dies without any signs of repentance, he may be de- prived of Christian burial as a notorious, or public sinner.*
§ 9. Exclusion from tJic Company or Society of the Faithful,
in purely human affairs ; that is, in the ordinary social
Relations of Evcry-day Life.
1. Former Discipline of the Church.
3243. Thus far we have seen that the excommunicate is excluded from the companionship of the faithful in religious matters. In other words, he is forbidden to receive or
1 Cap. 12, de sep. (iii. 28); Clem. Eos I, (iii. J). * Cap. 7 de cons. eccl. (iii. 40). 3 Kober, I.e., p. 337. * Prael. S. Sulp., t. iii., p. 269.
5io Excommunication.
administer the sacraments ; to assist at Mass and other divine functions and services of the Church, etc. The faithful,1 on their part, are strictly bound to have no inter- course whatever with a vitandus in these religious matters, that is, they are forbidden to receive the sacraments from him, or to administer (if they be Ecclesiastics) them to him ; to abstain from offering up the public prayers of the Church tor him ; to assist at the holy Mass or other divine functions with him ; to appoint him to any ecclesiastical office, or to allow him to perform any function whatever of such office ; to recognize him as an ecclesiastical judge ; to allowT or engage him to act as advocate, accuser, witness, or procu- rator or secretary before ecclesiastical courts; to submit to acts of jurisdiction performed by him ; or to attend his funeral.
3244. But the Church goes still farther. In order to inspire the excommunicate with salutary feelings of repent- ance, and also to preserve the faithful from contagion by contact with him, the Church strictly commands the faith- ful to shun and avoid him or his society and company, even in the ordinary social and civil relations and intercourse of daily life.
3245. The end and aim of the Church in inflicting excom- munication is to bring the refractory and obstinate offender back to repentance. Now it is plain that nothing is a more potent incentive for the sinner to return to obedience than the fact that he is, so to say, an outlaw from society, and that he is completely isolated and cutoff from all association and external intercourse with others, even in purely human affairs, namely, in the social or civil relations of every-day life. The faithful are obliged, so to say, to completely disown him and withdraw from his company, as though he
1 By faithful we here mean not only the laity, but also Ecclesiastics of whatever degree.
* Can. Excommunicatos 17, c. 11, q. 3 ; Can. 16, 18, 19 eod.
/ \ i ommunUaiion 3 1 1
wert afflicted vritfa a contag oui di and unworthj to
be in the compan} oi hid fellowmen. ' Moreover, the Church wishes to detei others from following the bad example ol the excommuni< ate, bj plat ing befon theii i the graviti ol the punishment. N »w, nothing could be bettei calculated to convince the faithful ol the dread charactei of excommunication than the complete isolation ol the excommunicato
J246, The obligation in question, incumbent on the faith- ful, ol shunning the excommunicate in kumanis, i.t., ol cutting oil all social intercourse with him, dates back to the very time of the Apostles. ' Numerous Councils inculcate and confirm this obligation. During the middl s this
exclusion of the excommunicate from all external social
intercourse with the faithful was very vigorously enforo
Not only the faithful in general were strictly obliged to cut
off all social and civil intercourse with the excommunicate, but also those who, owing to their state of life, v.g., married people, children, servants, inferiors of every kind, could scared v, even with the utmost good will, break off all intercourse with him. ■
3247. This ri^or was mitigated by Pope Gregory VII. (J073-10S5), in a Council held at Rome, in 1078. In this Council it was enacted that the wives and children of excommunicates, their servants and employees, and all those who were in any way subject to them, should have the right to associate fully and freely with them in the relations of every -day life, i. e.t in all domestic, civil, and political matters.
2. Present Discipline.
3248. The rigor of the old law on this head was still further modified, as we have already explained, by the
1 Stremler. p. 276. a Koher, 1. c, p. 379.
3 Cf. I. Cor. v. 11. 4 Kober, 1. c. p. 387.
3 1 2 Exco m m it n ica tion .
Const Ad Vitanda of Pope Martin V. (141 7-143 1). For, prior to this Pope, the faithful were forbidden from having any intercourse in social matters with any excommunicate whatever, even though not denuntiatus. The Const. Ad I 'itanda, as generally interpreted, restricted this prohibition to those who were excommunicated by name and pub- lished as such. These alone are called vitandi. By the letter of the law, therefore, as in force at present, the faithful, (excepting wives, children, etc., as stated above), are obliged to shun a vitandus in a social point of view.
3249. We say by the letter of the law ; for, by general custom to the contrary, the law seems at present almost ev- ery-where obsolete, so that now the faithful do not seem to be obliged to break off social intercourse with vitandi, except in so far as the law of nature itself commands it, namely, by reason of scandal, or danger to faith and morals. x Hence, even though it be said that the positive ecclesiasti- cal law on this head no longer obtains, yet the natural and divine law, which commands us to cut off all occasions of sin, and therefore also to shun sinners and excommunicates if their society endangers our faith and morals or gives scandal, still holds.
3. In what Social Matters arc the Faithful obliged to Shun a
" Vitandus."
3250. In what particular social or civil matters is it necessary for the faithful to shun the company of a vitandus ? Thus far we have stated, in general, that a vitandus must be shunned in social intercourse. Now we shall descend to the various particular cases or social actions in which, according to the letter of the law, intercourse must be broken off between the vitandus and the faithful. Canonists, follow- ing the Glossa, 2 generally sum up these cases or social
1 Prael. S. .^ulp., t. iii., p. 273. n. 772.
1 In Cap. 3 do sent, excom. in 6J (v. II), v. aliis.
/ I Ofh
a< nous m the follow ing vers< "Si pro del I
cihi i. it in . os, orare, \ ale, 1 1 >mmuni tui
} a\ us exi >lain each < »! i hes< word
. i . First, by t h< word os, is meant all or
wiih persons, whethei Ii be done public 1) oi pri- \ ateh . l>\ word oi moul h oi in writii
£ « ond, the vi i »i il o% >" < i efei s to I ait hi u I
are bound to shun the company oi the vitandus, not only when the) offer up the public prayers oi the Church, or assist at other public ecclesiastical functions, but also when they pray privately, ird, by vale is meant all external
marks of 'respect \ or friendship, ot benevolence, su< h as salutin rising, etc., and that whether given privately or in public.
urth, the word communio means every kind of daily, civil intercourse, all association in business matters, the making of cont racts, the entering into partnership, and the like. Finally, by mensa is understood the eating with a vitandus and living with him in t/ie same house, and therefore also the inviting or accepting an invitation to dinner, - etc.
3252. In all these relations of cvery-day life the faithful must shun the vitandus, at least, as was seen, in so far as the law of God and of nature commands us to shun and avoid public sinners. However, as was observed, the law of the Church has been greatly modified in this matter. Thus, at present, while, bv this law, the faithful still commit sin if they keep up forbidden intercourse with a vitandus, yet they incur no ecclesiastical penalty, save as stated above under No. 3 171. It must be observed also that the obliga- tion of breaking off social intercourse is mutual; that is, the faithful are bound to avoid the company of the vitandus, '' and the latter, on his part, is strictly forbidden to intrude himself into the society or companionship of the formert '
1 Kober, 1. c, p. 385. 2 lb., p. 385 ; Stremler, p. 281.
3 Cap. 5, de cleric, excom. min. (v. 27). •* Kober, I.e., p. 386.
3 1 4 Excomtn u n nation.
4. When is Social Intercourse a/lowed witli a " Vitandus ? "
3253. However, this prohibition of having any external social intercourse, though strict, is nevertheless not so rigorous as not to admit of any exceptions. We therefore ask : Is it allowed sometimes, even according to the letter of the law, lor the faithful to associate with a vitandus in social matters? We say in our question, in social matters ; for it is never allowed in divinis, i. e., in religious matters, save out of grave tear, etc., as explained above, * and even then, apart from all contempt of the law of the Church or God. We now answer: canonists, following the Glossa, 2 usually sum up the various cases where the intercourse in question is al- lowed in the lollowing verse " Utile, lex, humile, res ignorata, neeesse. I laec quinque solvunt anathema, ne possit obesse." We shall say a few words on each of these cases.
3254. — 1 . ( lile means the utility, both spiritual and temporal, whether of the excommunicate or of the faithful. Thus it is allowed to speak or write to the vitandus for the purpose of con- verting him. 3 It is also permitted to give him alms or other- \\ ise assist him if he is in great need, ' lest by too great severi- ty he might be driven to despair or become more hardened in sin. In a word, the faithful should not treat him as an enemy, but rather as an erring brother, and hence they should try, in a spirit of Christian charity, to bring him back to a sense of duty. For after all, the great end and aim of ex- communication is to cause the offender to amend. 5 In like manner can the faithful associate with the excommunicate whenever it is to their temporal or spiritual advantage to do so.
3255. — 2. Lex, by which is understood the law or state of
1 Supra, n. 1 700— 1 719.
9 Ad Cap. 15 de sent, excom. (v. 39), v. Excommunicationis.
5 Cap. 54, (v. 39). 4 Can. 103, c. II, q. 3. 5 Kober, 1. c, p. 390.
,
/ 1 1 ommunicaiion,
in. ii i [age /'• ill. I in' « • »'i' cssion v made,
.11 .iIh w e, iiinl« r N by Pope Gi \ 1 1
A.CCO] dingh i he wife ma} 1 1 »nf inue h 1 1 lati<
with bei excommunicated husband, not onlj bo fai concerns the debitunt% but also all othei doi
t Kill
' >. v Huntile means the subjection 01 obedience to and dependence upon the excommunicate. Hence, as w seen, according to the concession made l>\ G orj VII.. children can late freelj in domestic and social matt<
oi every-daj life with their excommunicated parents; pupils and wards with their excommunicated teachers and guar- dians; set ants and employees with their masters and em- ployers; inferiors with their superiors; subjects with their sovereign or ruin-. For the excommunication does not directly and perse deprive the excommunicate oi vested and properly acquired rights and privileges. Hence it docs not divest him of his paternal authority or of his civil power as a ruler, and consequently does not exempt subjects from the obedience due superiors. '
3257. We sav, subjects with their ruler or sovereign ; for, as in the case of parents and masters, excommunication did not divest them of their natural and vested rights, so neither does it deprive the ruler of his vested rights as sovereign. He retains, even though he is a vitandus, all his political rights, or all his rights as a soyereign. His subjects are bound to continue to obey him, pay their taxes, and fulfil all their other duties as subjects. It is true that, in the middle ages, excommunicated monarchs were sometimes deposed by the Pope, and their subjects freed from their oath of allegiance. But this was owing, not directly to excommunication, but rather to the political position of supreme arbiter between princes and people which the Popes occupied in those days, by virtue
1 Schmalzg., 1. c, p. 184. 2 Kober, 1. c, p. 393.
3 1 6 hxcommuntcatton.
of the jus publicum then in force. ! Of course, this inter- course is not allowed in religious matters.
3258. — 4. Res ignorata^ by which is meant ignorance, whether of law (juris) or of fact (facti). Hence persons do not commit sin, qui ignoranter excommunicatis communicant ',
.. who are inculpably unaware of the law forbidding them to hold intercourse with a vitamins (ignorantia juris)y or of 4 he fact that the party with whom they associate are really
andi KJgni rautia facti). 2
3259.- — 5. Finally necessity, by which is meant all cases of necessity, spiritual or temporal. Though it follows, as a matter of course, that cases of necessity must be excepted from the general rule, yet the Church, for the more com. plete tranquillity of the consciences of the faithful, has expressly enacted that it is allowed to associate in social or civil matters {in kumanis) with a vitandus, whenever there is a necessity \ M temporal or spiritual, for so doing, whether on the part of the faithful or of the excommunicate himself. Thus the faithful can keep up the social, every-day life intercourse with an excommunicate, whenever they need his assistance or good advice, or if they7 would otherwise incur a con- siderable loss.4 Any of these causes or reasons, taken separately, suffices to enable the faithful to have social intercourse with a vitandus. And as a matter of course, it follows that the vitandus can, in these cases, also communi- cate with them. 5
3260. All these reasons militate with much greater force at the present day. For there is no longer, at least practically
1 Supra, vol. i., n. 483; Kober, p. 403.
8 Can. 103. c. II, q. 3; Schmalzg. , 1. c, n. 190.
;! Can. 103, c. 11, q. 3. This canon gives the decree of Pope Gregory VII., by which the rigor of the old law was mitigated.
4 Can. no, c. ii, q. 3. This canon gives the decree of Pope Urban II., which sets forth the above mitigations.
<• Keiff.. 1. 5, t. 39, n. 150.
.
anj < )at i" >lic en opinion in favor of obscrvii
m. mIci n can< 'in i, h< >ld i hat t lie < an< >ni< al I
foi biddin m iati< >n w It h vitandit \ al oi w 01 Idly
affairs, is now generally obsolete; that the faithful a bound to shun such excommunicates oni) in as fai .1 the l.iw oi nature and the ne< essdt \ ol .w oidii indal
mm al d mtagion command it
Art \ What are the Excommunications inflicted by the Common Law oj
tlie C hurch and incurred " ipso facto " at the present da:
• 1. Hitherto we have spoken of excommunications in general. \\\ now come to each one in particular. Space does not permit us to set forth the peculiar nature and characteristics of each one. We must content ours with merely giving a list of those which are still in existence. Of course, we here speak men lv ol those which are enacted by the general law of the Church, since it would evidently be impossible to give those which are contained in the statutes of dioceses, or are inflicted ab homine per sententiam particular em.
§ 1 . The Const. Apostolicce Sedis of Pope Pius IX.
3262. Formerly there were a great many excommunica- tions, suspensions, and interdicts of the kind under discussion. Of these, some were reserved, either by the Bull In Cccna Domini, so called because, down to the year 1770, it was annually published on Holy Thursday (in ccena domini) or by other Pontifical Constitutions, to the Pope ; others to Bishops ; some to nobody. The Const. Apostoliccz Sedis of Pope Pius IX. of happy memory gave a new list of these correctional punishments and suppressed all that are not
3 1 8 Ex com m u n nation.
contained in this list, so that at present only those censures a jure and lata sentential arc in force, which are given in the Const. Apostolica Sedis. It is therefore of the greatest prac- tical importance that we should here briefly consider the nature, scope, etc., of this celebrated Papal document.
§ 2. Scope and general Outline of the Constitution.
3265. We observe, in the interpretation of a law the scope or mind of the lawgiver must always be examined and borne in mind. Now, in issuing the Const. Apostolical Sedis, it was the intention of Pope Pius IX., as is expressly stated in this Constitution, (a) to reduce to as small a number as possible the correctional punishments — namely excommunications, suspensions and interdicts — (inflicted lata? sentential and incurred ipso jure), which had been made from time to time by former Pontiffs and Councils and had gradually become very numerous ; (b) to modify and adapt those that were to be retained to the wants of our time. For, many of them had been enacted under conditions and in circum- stances which had become totally changed. Consequently they had become inopportune, and had come to give rise to numerous doubts, perplexities, and scruples of conscience, both in confessors and in penitents.
3264. For this purpose, Pope Pius IX. ordered that a full and most careful revision of all the correctional punishments lata? sentcntice which were then in existence should be made and laid before him, so that he might, upon due deliberation, determine which ones were to be retained, which suppressed, and which modified to suit the exigencies of the present day. When the revision had been submitted to him, he, with the advice of the Sacred Congregation of the Holy Office, and after mature deliberation, issued on the 12th of October, 1869, the celebrated Constitutio Apostolical Sedis, determining the number of correctional punishments latce sententice to be in force in future, giving an accurate and complete list of
/ t , ommitnii ation
them, and <!<•( ' al thi amc time that only those w(
to be observed in future which were enumerated in laid Constitution.
- 15, l In- u < »i (Is ( ii t lie pi eamble oi 1 h< ( "• >n I , a " I )(•(•(•! niiiius, ut c\ quibus( umqu >m
municationis, - uispensionis, sive Interdicti, quae ; modum latae sententiae, ipsoque facto incurrendae hacten impositae sunt, nonntsi i/los, quas in ha< ip nstitutu
inserimus, toque modoy quo inserimust robur < riVi nut."
Hence, as we have alread) noted, all excommunicatioi suspensions, and interdicts lata sentential whu Ii are not given in the Const. Apostolical Sedis are now abrogated. Consequently the Bull In Coma Domini is no longer in for< but has been superseded by the Const. Apostolica Sedis.1
^ 3. Reform Punishments decreed by the Council of Trent and retained in this Constitution.
3266. However, after giving a specific list of the censures to remain in force, the Const. Apostolical Sedis also enacts: " Praeter hos hactenus recensitos (casus excom municationis) eos quoque, quos sacrosanctum Concilium Tridentinum excommunicavit, nos pariter excommunicatos esse declara- mus." 2 As to suspensions and interdicts, this Const, enacts : " Denique quoscumque alios sacrosanctum Concilium Tri- dentinum suspensos aut interdictos ipso jure esse decrevit, nos pari modo supensioni vel interdicto eosdem obnoxios esse volumus et declaramus." Here Pope Pius IX. expressly decrees that, besides the censures which are specifically given in the Const. Apostolica Sedis, those also which were made by the Council of Trent shall be in force.
3267. Now the Council of Trent enacts reform punish- ments in two ways, namely directly and indirectly. Those were enacted directly by it, which (a) either did not exist
1 Cf. Craiss., n. 1633, note I. "2 Our Elements, vol. i., p. 439.
lb. p. 440.
3 20 Excommunication,
prior to said Council, but were made first or originally by it, and consequently were not merely reyiewed by, but had their origin in the Council of Trent ; (b) or if they did exist previously and were renewed, their renewal or confirmation took place in such a manner, as if they had been originally made by the Council. Those, on the other hand, were made indirectly by it, which existed at the time of the Council, vg., in the corpus juris, and were merely reaffirmed or confirmed by it.
3268. Owing to this, the question is mooted by canonists, whether the Const. Apostolical Sedis decrees that not only those correctional punishments shall remain in force which the Council of Trent enacted directly or originally, but also those which it merely reaffirmed. The more common and probable opinion is, that those only are retained which were enacted directly and originally by the Council. For Pope Pius IX. distinctly says in the above Constitutio that those whom the Tridentine Council excommunicates — excommunicavit — or decrees suspended or interdicted — suspensos aut inter dictos decrcvit — he likewise declares excom- municated, suspended, or interdicted. These phrases can evidently be applied only to punishments which are not merely renewed, but first made by the Council. '
3269. The question, therefore, naturally presents itself : how are we to know which correctional punishments were directly inflicted by the Council of Trent, which indirectly ? Canonists generally lay down the rule that the Council enacts them indirectly, i.e., merely renews old censures, when it says, v. g., " et qui secus fecerint . . . pcenas a jure inflictas ipso facto incurrant ; " 2 or " antiquorum canon nm pcenas super his innovando ; "3 or when it mentions by name the particular old enactment which it renews, v.g., "juxta Const it utionem Clementis V., etc." Where the Council does
1 Soglia-Veccb., vol. ii., p. 353. z Cone. Trid., sess. xi., can. I de Ref.
1 lb., cap. 22 dc Ref,
not use these oi imilar phrases, it imposi th< punishment in question dira tly 01 in othei irordt, n all)
»t(U\s, 1 1 < » t merel) i them.
What arc th< excommunications laU nientitt directly enacted bj the Council oi Inm, and therefon st Ml iii forci
./. Before answering we observe that even of th medicinal punishments which were enacted directl) by the Council oi Trent, oni) those remain in force, which had not fallen Into disuse when the Const. Apostoli dis
was issued. Hence, where a punishment, ted directl}
h\ the Council oi Trent, is no Longer in force, either in general, or in a particular locality, the Const. Apostoli Sfdis does not retain or revive it
i. We bow answer: There are nine excommunications. For the following persons incur excommunication ipso facto,
reserved to no one:3 i. Those who publish, or cause to be published, books treating de rebus sacris — i.e.t Sacred
Scriptures and annotations thereon, but not other books. even though they treat of sacred things, in the strict sense of the term, — without the permission of the Ordinary. ' 2. Abducers of women, and their associates.0 3. Those who compel a woman to enter a religious order, or hinder her from doing so.6 4. Those who violate the liberty of contracting marriage.7 5. Secular magistrates who refuse to assist Bishops in preserving or restoring the enclosure of nuns.8 6. Those who usurp ecclesiastical property or goods. 9 7. Those who deny that clandestine marriages, made with the free consent of the contracting parties, are true and valid, so long as the Church has not ren-
1 Konings, n. 1700, q. 3. - Cf. Konings, n. 1700, q. 2.
' Varceno, p. 455. * Cone. Trid., sess. 4 de edit. ; Cf. Sabetti, n. 1013.
6 Cone. Trid., sess. xxiv. , c. 6, de Ref. Matr. 6 lb., sess. xxv.. cap. 18 de Regular. f lb., sess. xxiv.. cap. 9 de Ref. Matr. B lb., sess. xxv , cap. 5 de Reg.
9 lb., sess. xxii.,.cap. 11 de Ref.
322 Excom m u n nation.
(K red them invalid, or who assert that the marriage of children, without the consent of their parents, is null.1 8. Those who say that a person in the state of mortal sin, having contrition, need not, even when he can do so, go to confession before receiving holy Communion.2 9. Those who are guilty of duelling. 8
3272. Of these nine excommunications, however, but the first four (n. 1, 2, 3, 4,) can be said to remain in force as Tridentine enactments. For, of the five remaining, one, namely that which refers to magistrates assisting Bishops to preserve enclosure, has fallen into disuse ; the other four are contained in the Const. Apostoliccz Sedis. Thus, the excommunication against usurpers of ecclesiastical goods is comprised in Nos. II, 12, of excommunications especially reserved to the Holy See, and partly in No. 3, of excommu- nications reserved to nobody. The excommunication against those who teach (a) that clandestine marriages are invalid, etc., (b) or that persons in mortal sin, etc., is included in No. 1 of excommunications reserved simply to the Holy See. Finally, the excommunication against duelling is comprised in No. 3 of excommunications reserved in a simple manner to the Holy See. 4 For full explanations of these punishments we refer the reader to moral theologies. The suspensions and interdicts directly inflicted by the Council of Trent and continued in force by the Const. Apostolic^ Sedis of Pius IX. will be given below.
§ 4. Reform Punishments concerning the Election of the Pontiff, and the Regimen of Religious Orders.
3273. Moreover, Pope Pius IX., in the Const. Apostolicce Sedis, enacts : " Quae vero censuras, sive excommunicationis sive suspensions, sive interdicti, Nostris aut Praedecessorum Vostrorum Constitutionibus, aut sacris canonibus praeter
1 Cone. Trid., sess. xxiv., cap. I de Ret. Matr. 2 lb., sess. xxiii., can. II, cap. 7. . sess. xxv., cap, 19 dc Ref. 4 Cf. Varceno, p. 955.
/ 1 1 otntnunication
< .1 . qua reo nsuimu . lat a i unf . atque da< tenu in vigore perstiterunt, sivc pro R. Pontificis e/ectume, siv< pro ///: mint quorumcunque ordinum <i institutorum
i ("ill. ti nun, ticcnon quorumcunquc Collcgiorum, Con itionum, Coetuum, locorumquc pioruni cujuscunque nominis aul generis sint, eas omnes firmas < i . i I in robore p< i manere volumus et de< laramus." ' 1 len< < , \x the punishments enumerated l»\ name in the Coi Apostolica Sedis, and those enacted directly by the Council el Trent, the above are also retained. Tin- ( Oust. A postal Sedis has therefore made no change as to the censures that had been previously enacted by Popes or Councils in regard to the election of the Roman Pontiff and the internal regimen oi religious orders or pious communities with simple VOWS only or without any vows at all, or of pious plac <
;.. hospitals, asylums.
3274. Here it may be asked whether the reformative punishments lata sentential concerning the internal regimen oi religious communities, etc., as here continued in force, are \hz particular censures existing in a particular commu- nity, enacted indeed by the Roman Pontiff, (the Const. Apostolica Sedis intended to legislate only in regard to the censures made by the general law of the Church ; and hence it is evident that we do not here speak of censures enacted by a Superior of a religious community), but only for a particular religious order, etc., or the general censures made by Popes and Councils for all religious orders or pious places all over the world. There are various opinions : One — that which is held by Avanzini, 2 Konings, 3 and others, affirms that they are the particular censures made by Popes for a particular order, etc. The other, supported by the author of the Comm. Reat., * denies this, and maintains that they are the general correctional punishments made by
1 Our Elements, vol. i., p. 440. * Comm. in Const Ap. Sedis, n. 57.
3 N. 1700, q. 2. 4 N. 164 (2).
3-4 I\.i<.u))nuunication.
j
Topes or Councils for the internal regimen of religious communities in general.
-;. The first or affirmative opinion is based chiefly on the argument that the Const. Apostolicce Sedis expressly, i.e., by name, confirms or re-enacts certain general medicinal punishments, relating to the internal regimen of these communities or places, v.g., those which enforce enclosure. ' Now it would be useless to expressly renew these punish- ments, if they were already declared to remain in force by the above clause of the Const. Apostolus Sedis: Quce vero censura .... lata sunt, . . . .pro interna regimine quorumcunque ordinum regularium .... eas firmas esse .... volumus. It certainly would appear superfluous to re-enact them twice in the same Constitution. 2
3276. As will be seen from the clause of the Const. Apostolicce Sedis — " quae hactenus in vigore perstiterunt," — the correctional punishments concerning the election of the Pope and the internal government of religious communities and pious places are continued in force only in so far as they ivcre actually in force at the time the Constitution was issued. Consequently those which had fallen into disuse were not revived.
§ 5. The Bearing of the Constitution of Pius IX. on Vindicatory
Punishments,
3277. Again it must be carefully borne in mind that the Const. Apostolicce Sedis has reference only (a) to correctional punishments, (censures), (b) made by the general lazv of the Church, (c) and which are latce sententice, i.e., incurred ipso facto. We say first, correctional punishments ; hence it has made no change whatever as to the ecclesiastical punish" ments which are called vindicative, (pamce), such as disabilities, dismissals, penal transfers. Yet, when the Const. Apostolicce Sedis imposes correctional punishments, v.g., excommunica-
1 Excom. vi., vii., R. Pont, simpl. res. 2 Konings, n. 1700, q. 2.
,
/■ i vmmut '//.
tion, i "i .1 certain crime which is alretdj punUhabk bj the old law with a punitive penalty, thii vcrj (ad would leein to indicate thai the vmdicatm punishment is abolishi rathei absorbed in the one contained in said Constitution. For it i.s again&l the principle <»t sound law that one and the -.line ad should he punished with several punishment especially when one oi them is a i r< n *nmu-
it ion. ' s. We say, - lly, lata sentential; for the Const
Apostolicce Sedis has effected no change whatever in regard to correctional punishment- which ^referenda sententx It did not legislate on the latter. We say, thirdly, made by neral law of the Church; for the Constitution did not pretend to make any legislation whatever in regard to local punishments inflicted by local Superiors, v.g., diocesan or provincial Statute-.
3279. However, even where the Const. Apostolical Sedis abolishes a reformative punishment, it must not be imagined that it has also given permission to do the act to which the censure has been attached. The proJiibition remains, only the punishment has been removed. a
§ 6. How Correctional PunisJunents are reserved in this Consti- tution.
3280. Of the correctional punishments contained in the Const. Apostolical Sedis some are reserved to the Holy See in a special manner ; others only in an ordinary manner ; others to Ordinaries ; some, finally, to nobody. See Vol. I. No. 681. Of these four classes of punishments, some have been taken from the old law as it stood at the time, and inserted in the Constitution, without any change, v.g., the excom. spec., n. 10; the simp/, excom., n. 12, 13 ; the excom. nem. res, n. 3. Others have indeed been taken from pre- existing laws, but have been somewhat changed and adapted to
c Comm. Reat. in Const. Ap. Sedis. '2 Comm, Reat., § 17.
3 2 6 Ex com m u n tea tion .
the altered condition of our times. ! The former must be con- strued in the light of the old canons, as interpreted by approved canonists ; the latter, i.e., those which were altered, must be construed partly according to the old canons (namely, as far as they have not been changed), and partly according to the wording of the Constitution itself.
3281. Lastly, from what has been said, it follows that the Const. Apostolicce Scdis of Pope Pius IX. is to be regarded at present as the corpus juris for correctional punishments lata sentential enacted by the general law, so that none of these punishments are now in existence, except when it is (a) expressly given in this Constitution, (b) or has been en- acted since the Constitution was issued, (c) or relates to the internal regimen of religious houses, (d) or was directly inflicted by the Council of Trent.
1 lb., $ 15 ; Soglia-Vecch., 1. c, p. 353.
CHAP! BR III.
[ON,
Art. I.
True Idea of this Punishment.
182. Ever} externally constituted society, in order to
( .11 1 \ out its purpose and attain its ends, and to pr< sen rights and guard its interests, is obliged to appoint officers or organs of its own, and assign to each a proper and distinct sphere oi duties and rights. Still more is it necessary for
Such society 10 have the right to remove, either permanently or
at least temporarily, from office those officials ivJio either negk their duty or abuse their power. No society or association, however small, whether religious or secular, could exist without this power.
3283. Again, every official enters upon his office with the express or tacit promise to fulfil its obligations punctually and faithfully. And if, instead of doing so, he but follows the dictates of his capricious whims, or even of self-interest, it is plainly he himself who challenges the Superior by whom he was appointed to take the office from him again, and to commit it to more faithful hands. Finally, every official who discharges the duties of his office in an improper manner causes others to look with contempt upon the office and the society of which he is an officer. And in case he is allowed to remain in office he will likewise bring dishonor upon his fellow officials.
3284. Guided by these principles and motives, all societies or associations, no matter how small, reserve in their con- stitution and by-laws the right of removing or suspending
J
28 Suspension.
officials for sufficient cause. But especially has the state or civil government, both in ancient and modern times, always made an extensive use of the power to remove its officials, either temporarily or permanently, for good cause. Thus, in the United States, all officials whatever of the civil government, national or state, are subject to removal or suspension from office for cause and in the prescribed manner.
3285. These reasons apply with much greater cogency to a religious organization charged with the sanctification of its members. In fact, at all times has this power been exercised by religious denominations of every description, by the pagan no less than the Mosaic. At the present day, ali Protestant sects exercise it, in the United States no less than elsewhere. It is, therefore, superfluous to show that the Catholic Church — the true spouse of Christ — has this power.1 She possesses it both as a society, and by the express will of her divine Founder. 2
3286. Definition. — We shall here speak merely of relative or partial removal from office, i.e., of suspension, having already treated above of absolute or permanent removal or dismissal. What then is meant by suspension, in the canon- ical sense of the word ? It is a canonical correctional pum ishment (censura) by which an Ecclesiastic, that is, an officer of the Church, who is guilty of crime, is temporarily de- prived, in whole or in part, of the use or exercise of the power which he possesses, either by reason of his ordo, or of his office, or of his benefice or income.*
3287. We say, by which an Ecclesiastic, etc.; for a sus- pension can fall only on Ecclesiastics, or officers of the Church, since it is essentially, as appears from its definition, a pun- ishment which forbids the exercise of the ecclesiastical
' Kober, Susp., p. 4. 2 Cf. T. Tim. v. 19, 20.
hroalzg., 1. 5, 1. 39, n. 263 ; Prael. S. Snip., t. iii., n. 781 ; Leur., For. eccl.
i- 5, 1 39- q. 567-
I
\isti ' it , it forbids a person 1 and |»i i\ which h
:. hill i i| Kc< \r !;isl i(
This fc. ii in c coiistilut< the character! ti< and i cntial difference between suspension and the othei correctional punishments. For both excommuni< ation and interdi* t di pos pei son also ol i and privil w hi< h he hoi
ordinary member of the ( 'hurck, and% thet }ut
baptism; while suspension divests a pei on oi the rights which he has as an r of the Church, and which
he therefore possesses by reason of his ordination. In other words, excommunication and interdict prohibit the enjoy- ments ol rights and privileges which are the common proper* t\\ j :\-ai\ of all the faithful ; m forbids the U
ot those rights which are peculiar to the ecclesiastical or cleru eal state.
3288. From this it will also be seen that an Ecclesiastic who is suspended, even though the suspension be complete and absolute, not merely partial, may neverthelt ss assist at Mass and other sacred functions, receive the Blessed Eucharist, and, in a word, enjoy all the other spiritual privileges which are common to all the faithful as such. For he possesses these rights, )iot as an officer, but as a lay-member of the Church. '
3289. We say, moreover, zuho is guilty of crime ; for, as we have shown at length, neither suspension nor any other cor- rectional punishment can be inflicted except for crime Neither can it be imposed, as we have also fully proved, without a previous trial, except in those cases where it is allowed to proceed ex informata eonscientia.
3290. We say, finally, of the use or exercise ; for suspension does never, at least per se, deprive a person of the office or benefice itself. It is essentially but a temporary prohibition to exercise the functions of such office or benefice.
1 Stremler, I.e., p. 293. 2 Supra, n. 2021. 3 Supra, n. 1279 s<\'
53° Suspension.
Art. II. Various Kinds of Suspension.
3291. Suspension is divided into three kinds : (a) suspen- sion from the office only — suspensio a solo officio — by which an Ecclesiastic is removed from the exercise of acts of the ordo and the jurisdictio ; (b) suspension merely from benefice — suspensio a solo benefieio — by which an Ecclesiastic, retain- ing intact the use or exercise of the power of order and jurisdiction, is deprived of the income of his benefice or office ; (e) suspension simultaneously from both the office and the benefice — suspensio ab officio simul et benefieio — by which he is forbidden, not only to exercise any act, whether of order or of jurisdiction, but also to receive the income or salary of his office.
3292. Some canonists divide suspension into {a) suspension ab online, (b) ab officio, (c) and a benefieio. Schmalzgrueber ! however and others, whose example we follow, simply divide it into suspension ab officio and a benefieio, including in the suspension ab officio the suspension from acts both of the ordo and the jurisdictio. "
3293. When the suspension is ab officio simul et benefieio, it is complete and total, absolutely speaking. But when it is merely from either of them, or but from some individual act pertaining to either, it is partial or incomplete. Schmalz- grueber 3 says that, when the suspension is inflicted absolute- ly and without any restriction, so that from the context of the sentence it cannot be ascertained whether the suspension is merely ab officio or a benefieio, it is to be taken as imposed both from office and benefice.4
3294. Again, the suspension merely from office {a solo officio) may be in turn total or partial, so far as concerns the acts
1 L.c, n. 267, 268; Stremler,l.c.,p. 295. 2 Cf. Craiss., n. 6572.
3 L. c, n. 266. * PraeL S. Sulp., n 783.
\\
Suspension,
oi ordei and jui isdiction. Tims the u pen i< m
','/(//, when il lot liuls lln < il nil </, I • -I
,u dei . iui i >< 1 1 * i i< mi. and < i < le il adminisl i at i< >n ; it
partial, when ii prohibits (<*) merel) the ( >f ad oi
the <->,/,'. ci i Iki In whole oi 011I3 in part ;' (b) or merel) a< oi i he •.. •. w hethei in w hole <>i in part. In oth
words, .i person tnaj be Forbidden to exercise any (nt what* r% whether oi the ordo or oi the jurisdiction or only this oi that act oi either. When the suspension is merely from a< oi the ordo and not oi the jurisdiction it is called suspensio (i divinis, or <?/• or dine, or <?£ officio sacerdotali.
>;. Likewise, i he suspension a $0/0 bencficio may be, so far as concerns the income, salary, or temporal emolu- ments, either /#/#/ or partial. In other words, an Ecclesiast may he temporarily deprived oi the entire income or only of part o\ it. Here it is necessary to call to mind that the suspensio a benejicio is never included in the suspensio ab officio, although the latter be inflicted absolutely and without any restriction. 1 fence an Ecclesiastic who is suspended merely ab officio has the full right to receive the entire income of his place or Office, and administer the temporalities of each office, though he cannot perform any of its functions. 4 Like excommunication and interdict, suspension may be either ferenda? or latce scntcntice, a jure or ab Jiomine, just or unjust, valid or invalid.
Art. III.
Effects of this Punishment. 3296. Suspension, like the other reformative punishments of the Church, when validly inflicted, that is, for sufficient cause proved secundum allegata in judicio and with the
' V.g., the saying of Mass.
i V.g., the hearing of confessions, or of the right to vote in ecclesiastical elections.
a S*remler, p. 295. 4 Prael. S. Sulp. I.e.. n. 783.
2,2,2 Suspension,
prescribed formalities, as has been shown, produces its effects forthwith and without any further external agency or execution. It executes itself. ' What then are these effects? They vary according to the kind of suspension inflicted. We shall here discuss separately the effects of the three kinds of suspension as above enumerated, namely (a) that from office ; (li) from benefice ; (c) from both at the same time.
3297. Q. What are the effects of suspension from office ? A. As we have seen, suspension from office can be either
complete or partial. If it is partial, the principle applies that correctional punishments, being penal lazus, must be strictly construed, ~ and therefore not extended beyond the clear and express wording of the sentence imposing them, or the strict letter of the law enacting them. Hence a person suspended from the ordo is not suspended from jurisdictio, and can therefore exercise any act of jurisdiction that does not require at the same time the actual exercise of the 077/0. Thus a Bishop who is suspended from the ordo only can delegate to others the power to absolve, though he himself cannot hear confessions and grant absolution.
3298. Nay, a person who is suspended only from this or that act of orders, can exercise all the other powers of orders. Thus a Bishop who is suspended merely from the ordo episcopalis or a pontificalibus, can exercise the ordinary sacerdotal functions, as exercisible by any Priest, such as hearing confessions, saying Mass not in pontificals, etc. 3 Likewise, a person suspended from priestly functions is not suspended from the functions of a deacon or subdeacon. The same principles apply to suspension from jurisdictio. From this it is evident that there are as many grades of
1 Cf. Kober, Susp., p. 88.
2 Thus the reg. jur. 49 in 6° says : " In poenis benignior estinterpretatio facienda. " Again : "Odia restringi, et favores convenit ampliari." (Reg. 15 de Reg. Jur. in 6°.)
3 Schmalzg., 1. c. . p. 290.
Suspenst
iuspensi< m as I hei e arc I un< I i< mi , i l< I hei
oi oi dci 01 <»i jui isdi< 1 1' "i
II, on i he of hci hand, i h< i is
total, its effect is to prohibit absolute^ all acts what vrhel hei oi 01 dej 01 oi jurisdicti* >n. pi in< iple
founded in the \<i\ meaning oi the word ficiumx
which, in the language oi the S I Canons and a< i ordinp to the general usage oi the Church, has always and every where been used to designate the ecclesiastical office in its entirety ; that is, all t he rights whatever, whether oi order or oi jurisdiction, attached to or connected with said offio
ami it a person thus suspended is officially denounced as SI
pended, his acts of jurisdiction arc, as was seen, ipso jure void,
3300. We s,\ if officially denounced ; for if he is tolerated,
i. e., not published as suspended, his acts of jurisdiction are valid, though illicit, unless performed at the request, tacit or express, of the faithful.2 We say, moreover, oi juris- diction; for acts of the or do in the case are perfectly valid, though, of course, sinful, since the power of the ordo can- not be taken away by the Church. 3
3301. According to some canonists, a person who is sus- pended ab officio is, by that very fact, also suspended a beneficio, on the plea that the income or salary is merely a?i accessory of the office, and that the accessory follows the condition or status of its principal. Against these few, all other canonists hold it as certain, as was seen, that a person who is suspended from office is not eo ipso suspended from benefice, 4 on the well-known maxims that penal laws are to be strictly construed, and that the income of an office is not forfeited by the incumbent, simply because he has become
1 Arg. cap. 1 de sent, in 6° (II. 14); Cf. Kober, Susp., p. 88; Schmalzg., 1. c, n. 2, 4.
3 Schmalzg.. 1. c. n. 309. 3 Kober. 1. c, p. 103.
4 Schmalzg., 1. c, n. 297; Reiff., 1. 5, t. 39. n. 168.
J34 Suspension.
temporarily disqualified, or even permanently unable to dis- charge the duties of such office.
3302. Tims the law of the Church expressly provides that an Ecclesiastic who, by reason of sickness, old age, or want of sufficient talent, is unable to attend to the duties of his office,1 shall nevertheless receive the income thereof, less, however, the salary of the coadjutor or vicar who is to be assigned to him. ■ Hence an Ecclesiastic suspended ab officio can continue to receive the income of his office, minus the allowance which has to be given to the person who is appointed to act as his substitute and discharge the duties of the office, for the time of the suspension. 3
3303. Q. What are the effects of suspension from benefice? A. We premise: By benefice we here mean the revenue
or income of any ecclesiastical office whatever , removable or irre- movable, and not merely of a benefice in the strict canonical sense of the term.
3304. We now answer : 1. As suspension from office does not, as was seen, comprise suspension from benefice, so neither docs suspension from benefice include suspension from office. For these two kinds of suspension are clearly and constantly distinguished from each other in the Sacred Canons. * Now this would be superfluous, if they both meant one and the same thing. Hence a person, as was seen, may be suspended from or forbidden to receive the income of his ecclesiastical office or charge, and at the same time allowed, nay, obliged to perform all the functions of such office. In other words, a person may be suspended solely from the income or salary, without being suspended from any act, whether of order or of jurisdiction.
3305. — 2. Suspension from benefice deprives a person, not merely of the income or salary, but, moreover, of the admin-
1 Cnp. 1, 3, 4, de cleric, aegr. (iii. 6); Cone. Trid., sess. xxi., Cap. 6 de Ref.
2 Schmalzg., 1. c. 3 Miinchen, 1. c, vol. ii., p. 232. 4 Cap. 10 de purg. can. (v. 34).
Suspension
istration of the temporalitii of his office oi benefice. ' In othei words, .1 person 1 u led from benefit e < annof l< an] lands oi houses belo to his benefice, noi sell
its propertj o\ fruits, noi plead in court, eithei pei onallj 01 through others, as the repn ■< ntative oi the offi< e 1 in hort, he cannot perform an] act which relates to the admin tion oi the temporalities oi his benefice or office.1 rlem also, an administrator should be appointed to manage th< temporalities, or the person suspended ma] himseli be an thorized to continue the administration. 3
3306. 3. Suspension lr<>in benefice or income does not deprive a person of the office or benefice itself as has been peatedly said, but merely oi its income or emolument consequently a person suspended merely from benefice must perform all the duties of the office without drawing any in- come or salary therefore. I>ut is a person thus suspendi to be left without any means of support and thus, if poor \ obliged to beg* We have given a lull and detailed answer to this question above, under Nos. 1859 — 1 880, where we also apply the principles of canon law on this point to the United States and other missionary countries.
Art. IV. Punishments incurred for violating Suspensions.
3307. Q. What sin does a person commit, and what pun- ishment does he incur by disregarding suspension ?
A. We have already answered this question at considerable length above, under Nos. 31 17 and 3123. According to the principles there laid down, a suspended person contracts unfitness for orders, that is irregularity, only when he
1 Schmalzg., 1. c, n. 303.
- Arg. Cap 8 de dol. et cont. (ii. 14) ; Cap. 1. 26 de Elect, in 6°.
3 Munchen, 1. c, p 235.
;v: Suspension.
violates the suspension ab online, that is, when he solemnly i zeroises an ad or function of the ardo. For the law of the
Church now here enacts that a person shall incur the dis- qualification in question by setting at nought the suspension from benefice or jurisdiction.
3308. However, a person, as was noted above No. 3123, who violates the suspension from benefice or from jurisdic- tion, v. g.i by drawing his salary or exercising an act of jurisdiction, is otherwise punishable, according to the discretion of the ecclesiastical judge or Superior, and may even be wholly deprived of his office or benefice according to the nature of the offence.
3309. Here it may be asked : Does a person incur unfit- ness for orders {irregular it as) for violating a suspension ab ordine, when the suspension is inflicted, not as a correctional (censura), but as a vindicatory punishment (poena)? We premise, as has been already explained, suspension (and also partial interdict, but not excommunication) may be inflicted not merely as a reformative punishment, but also as a purely punitive, for crimes altogether past. l
3310. We now answer: the question is controverted. Kober,2 Stremler, the author of the Prael. S. Sulpitii, 3
and others maintain the affirmative, namely, that he does in- cur the unfitness. They prove this assertion chiefly from the Cap. Cum aterni 1, de sent, et re jud., which decrees that ecclesiastical judges guilty of injustice shall be suspended from office for one year, and that, if they disregard this suspension, they shall incur irregularity. Here, then, say the above authors, is a penal, not a correctional suspension, since it is inflicted for a specific period, namely one year, and yet its violation produces irregularity. Again, con- tinue these canonists, the S. C. C. has repeatedly decided that the violation of the suspension inflicted ex informata
■ ^upra n. 2035. * Susp., p. 95. :i N. 782.
Suspension.
const /. ntia entails imci-jiI.hi! n thi
usuall} inflicted a .1 pun punishment^ ;in<l not .1 sin, i impo led m ii h« »iii .ni\ (»i c\ i« >us ( .1 n« »iiK .
s. C dc Prop. Fide, Instr. 20 Oct 1 1 1.
3311, St. Alphonsus,1 however, holds the opposite or negative opinion as absolutely more probable, chiefl) on the ground that the lau decrees or inflicts irregularit} only for censure and not for pure punishments* Si Aiph< how-
ever, confines his conclusion i<> suspensions which are /mo/,
... punitive, in the strict sense of the word, namely tho imposed ad nomine by sentence and lor a crime completely past, and dors not apply it to suspensions, which are inflicted, indeed, for a fixed period, but per modum statuti out pracepti
for a future crime, since SUCh Suspensions are in his opinion
not purely p< nal.
3312. Q. How can it be known when a suspension is Inflicted not as a correctional {censure) but as a vindicatory punishment {poena)?
A. We premise: suspension assumes the nature of a purely punitive punishment, when it is inflicted (a) for a crime which has no present continuance — nullum Jiabcns traction successivum — but is altogether past, (0) and not so much for the sake of reforming the delinquent, as of punishing him.
33I3- We now answer: It may be laid down as a rule that a penal suspension differs from a correctional as follows : 1. The mediciu al suspension must always be preceded by a canonical warning, general or special ; s while no canonical admonition or precept is required, at least absolutely speak- ing, for the punitive suspension, though, as was seen, it is necessary that the accused shall be given a canonical trial and that he be juridically convicted of crime. 2. The correc-
1 Bened. XIV. De Syn., 1. 12, c. 8, n. 5 ; Craiss., n. 1796. * L. 7, n. 314. 3 Supra, n. 1780.
Suspension.
tional suspension is not inflicted for a specified tune, while the punitive is. 3. The reformative suspension ceases by absolution ; the punitive by dispensation, by pardon, or by the lapse of the time for which it was imposed.1 Hence it may be taken lor granted that the suspension is a mera poena and not a ccnsnra, when it is inflicted without a pre- vious canonical warning and for a fixed time, v. g., three months, or ad beneplacitum superwris. a
Art. V.
Formalities in inflicting Suspc7isions.
3314. Q. What are the formalities which the Bishop or ecclesiastical Superior is bound to observe, also in the United States, when he is about to inflict suspension ?
A. We have already given a full and comprehensive an- swer to this question above, under Nos. 2044 sq. The sum and substance of what we have said there is, that the Bishop, prior to imposing suspension, is to give the accused (a) the canonical warning, (b) the precept, (c) the trial. When the suspension is inflicted, not as a reform measure, but as a vindicative punishment, the trial alone is sufficient. The admonitions and the precept are not, absolutely speaking, required.
3315. The only exception to this rule is where suspension is inflicted ex informata conscicntia, which, as was seen, can be imposed as well with as without any previous canonical warnings or juridical proceedings. It should be observed here that the only kind of suspension which is imposable ex informata conscicntia, or without trial, is the suspension from orders, and from ecclesiastical degrees or offices, and digni- ties or honors. Hence Bishops, also in the United States, cannot, at least directly, suspend Ecclesiastics, ex informata
1 Prael. S. Snip., n. 782. J Craiss., n. 6573, 6589.
Suspension,
canst ientiat a benefieio, ili.it is, ir«»m administer 'i or ///(• in A thcii parish 01 bfficc. ./ t rt% r\ thej cannot impose ftj w/ ( /•/ . ni absolute removal from offio
or parish, < \ informata conscientia*
i". While, however, the suspension whi< h is imposed* i informata conscientia does not fall directlj upon the A or income^ it may, nevertheless, do 10 indirectly. Thus, il a Rector oi a mission or parish Is suspended from the c% animarum9 and il becomes necessary to hav< the duties p< taining to the cura performed by a substitute during the time oi the suspension, this substitute will receive a suitable income or salary, the amount <>l which is determined by the Bishop, and deducted, at least in part, from the income of the suspended incumbent. II the latter considers the amount too Large, he can appeal to the Metropolitan or also to the I [oly See.
3317. This is expressly decreed by the Propaganda, in its latest Instruction Supra snspensionibus ex informata conscien- tiat issued Oct. 20, 1884, and embodied in the Third Plenary Council of Baltimore. The words of the Sacred Congrega- tion are : " Debent insuper exprimi partes exercitii ordinis vel officii, ad qnas extenditur suspensio ; quod si suspensus interdictus sit ab officio, cui alter in locum ipsius substitu- endus est, ut puta ceconomus in cura animarum, tunc substitutus mercedem percipiet ex fructibus beneficii in ea portione, quae juxta prudens Ordinarii arbitrium taxabitur. At si suspensus in hoc taxatione se gravatum senserit. moderationem provocare poterit apud curiam Archiepisco- palem, aut etiam apud Sedem Apostolicam." x See above, Vol. II. , Nos. 1286 sq. ; Our New Procedure, No. 85 sq.
1 Instr. S. C. de Prop. Fide supra Susp. ex informata consc, $ 4,
340 Suspension*
Art. VI.
Release from Suspensions.
3318. Q. I low is suspension taken away, or how does it cease ?
A. We have already answered this question above under Nos. 3i24sq. Here we merely add that, when suspension is inflicted ad bcncplacitum, it lapses of itself by the death, resignation, or removal of the Superior by whom it was inflicted ; if it is inflicted ad beneplacitum Sedis, it ceases only l>v dispensation of the Superior or his successor, not by his death or removal. * Observation. When the suspension has been really incurred by a person, it binds him wherever he may be, and consequently also outside of the diocese of the Bishop by whom it was imposed. For it adheres to his person, and consequently accompanies him everywhere. Hence canonists aptly say of suspension, or of excommunication, afficit personam eamqnc sequitur sicut lepra leprosum. 2 There- fore he remains under it until he is properly relieved from it, as shown above.
33 !9- Q- Can suspension be inflicted for venial sins ?
A. The answer has been already given above, under Nos. 2021 sq.
Art. VII.
Suspensions a jure com. and latce sent, in Force at present.
3320. Q. What suspensions a jure com. and lata sententio? are now in force ?
A. Only those, as was seen, (a) which are expressly enumerated in the Const. Apostolical Sedis of Pope Pius IX., (b) and those inflicted originally or directly by the Council of Trent, (c) and finally those which regard the election of
I Craiss., n. 6588. 3 Kober, Susp., p. 89.
Sn i
the Supreme Pontiff, and I h< int< i nal regimen i ' i Imui i and pious plai i We have already . in i h< \ olume, pag( i * ?A <•</// \\ en i he • uspen
contained expressl} in the Const. AposU *edisoi Pius
i \. [t but remains, therefore here to add those infli< ted by t he Council < >i Ti ent, \\ hich i < >nt inue in foi •
•i. Tin \ areas follows: i. Bishops ordaining persons not, subject to them without the permission oi their own Bishop, are ipso facto suspended for one pear from confi ring orders, 2. and the person thus ordained is ipso suspended from the orders thus received, for as long a period .is shall seem expedient to his own Ordinary.' 3. Bishops performing pontifical functions, v.g.t conferring orders, 1 \ en though it be upon their own subjects, #*/ of their own diod without the express leave of the Ordinary of the place, are ipso jure suspended from the exercise oi episcopal functions, /. <•., of those timet ions which are acts of the ordo episcopal is, and not merely of the priestly order; 4. and those so ordained shall be similarly suspended from the exercise of their orders. -
3322. — 5. Titular Bishops, i. e., Bishops having no sees,8 conferring orders, major or minor, or even first tonsure, on a person who is the subject of another Bishop, even though he be their own domestic, without the express con- sent of or without letters dimissory from that individual's own Bishop, are ipso jure suspended for one year from the exercise of pontifical functions ; 6. and the person so promoted (provided he is in bad faith) shall in like manner
1 Cone. Trid., sess. xxiii., cap. 8 de Ref. The person ordained, in order to incur the suspension, must be ordained knowingly, i. c\, he must be in bad faith. Kober, Susp. p. 151. Observe that, according to Const. Apostolictc Sedis of Pius IX., a person, even in good faith, who isordaired by a Bishop who is excommunicated, sus- pended, or interdicted by name, and denounced as such, does not incur suspension, but yi t is prohibited from exercising the order thus received, till dispensed by the Holy See.
* Cone. Trid., sess. vi., cap. 5 de Ref. 3 Supra, vol. i., p. 513, sixth edition.
342 Suspension.
be suspended from the exercise ot the orders thus received for as long as to his own Prelate shall seem fit.1
3323. — 7. A person promoted to orders per saltam, that is, by leaping over or omitting an intermediate order, is ipso facto suspended from the order thus received, and can be promoted to a higher order only by dispensation, which can be granted by the Bishop, provided such person has not exercised the ministry of the order received per saltum. 2 We say, provided, etc. ; for if he exercise the ministry in the case, he incurs irregularity, and then the dispensation or permission to be promoted to higher orders can be given only by the Holy See.3 The Church has at all times or- dained that persons should be promoted to orders only step by step — gradcitim, receiving first the lowest, then the next highest, and so on, without omitting any intermediate grade.
3324. — 8. Persons who, without being constrained to re- ceive sacred orders, by reason of some Ecclesiastical office received or about to be received, are promoted to major orders through letters dimissory of Chapters or Vicars- Capitular or their agents, given during the first year of the vacancy of the Episcopal see, are ipso facto suspended from the exercise of the orders thus received, during the pleasure of the next appointed Bishop ; 4 9. and if the Chapter, Vicar- Capitular (with us, administrator), or any other persons whatsoever, who, during the vacancy of the See, succeed to the jurisdiction of the Bishop, in lieu of the Chapter, shall presume to give letters dimissory within the first year of the vacancy, they shall also be ipso jure suspended during a year from their office and benefice. 5
3325. — 10. Abbots conferring tonsure or minor orders, save upon regulars who are their own subjects ; in like
1 lb., sess. xiv., Cap. 20 de Ref. B lb., sess. xxiii., c. 14 de Ref.
3 Kober, Susp., p. 211. A Cone. Trid., sess. vii., C. 10 deRef: sess
• lb., sess. xxiii., c. 10 de Ref. ; Supra, vol. i., n. 637.
Hsion.
mannei . i >l hei < item] >ted p< »t the lctti
< 1 j 1111 on foi i he ordinatit m < »i i heii ct to the D 'in
whose diocese the} are, are ipso fun nded for on< \ < ai
h om i licit offi( c .Mid benefit «-. ' n. F inall) . al the rridentine i Tametsi is published or obtains,1 :tll
priests, seculai and regular, who shall pn um< to unite In marriage persons belonging to anothei parish, or to bl< them when married, without the permission ol theii parish priest, shall remain ipso jut u pended, until absolved by the Ordinar} oi thai parish priest who ought to have been present ;it the marriage, 01 from whom the benediction ought to have been received. '
3326. Note I. As will be seen, the above suspensions, under
Nos. 1-10, relef exclusively to, ora'e incurred solely bj thi Bishops A\n\ inferior Ecelcsiastics who violate the Sac red Canons concerning' ordinations. The nth regards priests solemnizing or blessing marriages contrary to the decree Tametsi*
3327. Note II. Again observe, that of the suspensions under 1-10 three are incurred by Bishops and are reserved to the Pope ; the others are incurred by others and are reserved simply to Ordinaries.4
3328. Note III. Of the three regular correctional punish- ments— namely excommunication, suspension, and interdict, suspension is the one which is at the present day most commonly inflicted. 5 Hence, also, it will be seen how important a correct idea of this punishment, in all its parts, is both to the superior and the inferior. To the former, that he may know when, for what cause, and in what manner he can inflict it; to the latter, that he may, when justly and validly visited with this punishment, acknowledge its justice and
1 Cone. Trid., 1. c. ; Cf. Varceno. p. 969.
2 Supra, vol. i., n. 660.
3 Cone. Trid., sess. xxiv., cap. 1 de Ref. Matr.
4 Va> , p. 966. 5 Stremler, 1. c, p. 293.
J44 Suspension.
bow to it, or, when unjustly and invalidly punished by it, seek and apply those remedies which the law of the Church places in his hands, and not look for redress in the secular courts.
CH iPTER III.
THE BCCL1 HAS I i« \i INT1 i;m< T. (Inierdu tin,
Art, I.
t \<>ti<>n of the Interdict.
3329. Tin4 word interdict is synonymous with prohibition
or inhibition. In general it means the act <>| a person
Forbidding something:. As here understood, the interdict means a regular correctional punishment of the Church, by
which, in punishment of crime, the public celebration o! divine service (offida divina), the administration of certain sacraments, and ecclesiastical burial are forbidden in certain places or to certain persons. ■ The meaning of this defini- tion will be rendered more clear, when we come to describe the effects of this punishment.
3330. The origin of the interdict dates back to the early days of the Church. Thus we read in the history of the Church that already in the fifth and sixth centuries persons guilty of certain crimes, v.g., impurity, perjury, were forbidden to receive the Blessed Eucharist, or to enter the Church and assist at the divine service, either for a fixed time, v.g., one year, or for an indefinite period, that is, until they amended. 2 Here we have a partial interdict. It was, however, only in the eleventh century that the canonical interdict received its full development. It con- sisted in the discontinuance of all public worship and all
1 Arg. cap. Alma 24, de sent, excom. in 6° (v. 11); Leur., For. eccl., 1. 5,
- 39, q- 573- * Can. Ad ntrnsam 24, C. xi., q. 3; Miinchen, 1. c, vol. ii., p. 196.
346 The Ecclesiastical Interdict.
solemn ecclesiastical Junctions, and was inflicted upon a whole kingdom or realm, or only on an individual city or church, or upon all or only some of the inhabitants of such places.
3331. Modern canonists generally remark, and not without truth, that interdicts, at least in the above comprehensive sense, have now gone completely out of use. ~ We say, at least in the above comprehensive sense ; for partial and particular interdicts are still in vogue, as may be seen in the Const. Apostolicce Sedis of Pope Pius IX., 3 and in the Second Plenary Council of Baltimore. 4
3332. Specific characteristics of the interdict. — While this punishment differs from excommunication and suspension, it nevertheless partakes of the nature of excommunication, and has some things in common with it. Thus, like excom- munication, the interdict deprives members of the Church of spiritual benefits to which all the faithful, without excep- tion, arc entitled. But excommunication, as was seen, is far more comprehensive than the interdict. It is a total, though temporary exclusion from the Church and all its privileges ; whereas the interdict does not exclude a person from the Church, but merely deprives him of certain rights and privileges, and is, so to say, a certain suspension of the laity. 5 Hence also, it is very properly said, that the inter- dict is a species of mild excommunication. 6
3333. Another difference between excommunication and suspension on the one hand, and interdict on the other, is that the latter acts not merely on persons, but also on places, while the former can directly fall only on persons, not places. The interdict, however, has this in common with both excommunication and suspension, that it is, like them, a correctional punishment, and therefore aims at the reforma-
1 Permanedtr, 1. c, p. 545, 2 Fessler, Excom. and its Effects, p. iv.
3 Interdic+a, n. 1, 2. 4 N. 186.
* vjan. 2, <.. 36, q. 4. 6 Munchen, 1. c, p. 208.
The / U hit* > y\ 7
tion oi the offendei rathei than bis punishment Ii ms bowevcr, as bai been said, tx inflicted al purely
punitivi i I i.i 1 1 ■•< 1 1 km i.
I j. l< i us now sec how i In- intei di( t diff< na u
pension, rhe lat ter, as w a n, depi \\ es an 1 I u
oi rights which be po as an l tstict that is, oi
rial po\ *d privileges ; whereas the interdict div<
person only of thos< ecclesiastical benefits which he enjo as a lay number oi the Church. Hence, also, the interdict ran fall directly only on the fatty and not upon Ecclesiasti in their capacity oj Ecclesiastics. We say ', directly ; for in- directl} or mediately, it acts also on clerics, namely in Ear as they are not allowed to perform for others, or the laity who are under an interdict, certain ecclesiastical functions. In other words, the clergy are forbidden to celebrate divine service, etc., only because the laity, who are interdicted, cannot assist at them. It is true that Ecclesiastics can be directly interdicted from entering a church ; but, as Miinchen * observes, this interdict is rather a species of suspension than a real interdict.
Art. II.
Various kinds of Interdicts.
3335- There are three kinds of interdict, namely local, personal, and mixed. The local (interdictum locale) is that which acts directly on a place or locality, forbidding in such place the celebration of divine worship, i. e.> Mass and other ecclesiastical functions, the administration of certain sacra- ments, and the giving of ecclesiastical burial. This interdict affects persons only indirectly, namely in as far and as long as they are in the place interdicted, so that, when they leave it and go to another not under an interdict, they can assist
1 L. a, p. 214.
348 The Ecclesiastical Interdict.
at Mass and receive the sacraments, together with Christian burial. This local interdict is either general or particular, according as it extends to an entire city, province, or realm, or only to an individual church. '
3336. The personal interdict (inter dictum personate) is that which acts directly and immediately on persons, forbidding them (a) to hear Mass or assist at other divine services, (b) to receive certain sacraments, (e) and to be given ecclesiasti- cal burial. As this interdict adheres to persons, it follows them wherever they may go, and binds them everywhere.
3337. Like the local interdict, the personal may be imposed (a) either on a number of persons forming a moral or politi- cal body, v.g., upon all the inhabitants of a state, city, parish, religious community, or other body corporate, or confrater- nity, (b) or on some particular individual or individuals, v.g., upon Peter or Paul. 2 In the latter case, it is called particular ; in the former, general. Again, it may be inflicted either in (a) all its severity, i.e., in such a manner as to produce all the effects of the personal interdict, {b) or only some of them, v.g., if a person is interdicted from the celebration of the Mass, or from the reception of the sacraments, or from entering the church.3 In the first case, the personal interdict is called total ; in the second, partial.
3338. We observe that the interdict of entering a church {interdictum ab ingressu ecclesice) which we have just men- tioned must not be confounded with the suspension from entrance into the church (suspensio ab ingressu ecclesice). The former, the interdict or prohibition to enter a church,4 forbids a person to enter a church in order to celebrate or assist at Mass or other divine service there, or to perform any other act of the ordo in a church. Now, by church is
1 Leur., 1. c. q. 573. » Schmalz.^., 1. v., t. 39, n. 324. » lb., n. 325.
4 This species of prohibition or interdict is not comprised in the ordinary interdict, but is a kind of special or separate interdict. Hence it is incurred only when it is expressly and specially imposed. (Schmalzg., 1. c, n. 383.)
r i%i t
Ihi i nit ant ;m\ temple 01 oi hei | >la I apart I
Bish< »|» f< »i publu \\ « \\ ship. II >n
can go into and c< lebrat< Mas and othei divine fun< I 01 it them, in a private oratory o\ inacemeterj chapel.
Na) . u( li person ma} e\ en entei .1 < hui < h, .1 ah defined, in order to pra} there, provided it be not during the time when divine service is going on there. l On the other hand, t he suspension ad in{ 1 he
suspension a divinist which has been alreadj explained abo^ under the heading <>i suspension.
:«). We have above stated in general whal pla< es are interdicted v\ hen the interdict is a general local one. We shall now explain this a little farther. What places, then, are comprised under a general local interdict? 1. If a eit\ interdicted, all its suburbs together with their buildings arc also interdicted. All the churches in such city also fall under the interdict, the cathedral not excepted. 2. If a diocese is laid under an interdict, all the cities, towns, and localities of such diocese with its churches fall under it. 3. When a church is interdicted, all its chapels and the ad- joining cemetery arc also interdicted. The reason in each of these cases is that, when something is interdicted as a whole, all its parts and places contiguous to it are included.
3340. Furthermore, a local interdict, as we have seen, acts only indirectly on persons. In other words, Ecclesias- tics cannot publicly celebrate divine worship, and the faithful cannot assist at it, in the place interdicted, not because they themselves are forbidden to celebrate or assist at it, but solely because the place or locality is declared to be one where the above actions shall not take place.
3341. From this it is plain that no one can celebrate or assist at divine service in the place interdicted. Hence the local prohibition or interdict must be observed, so far as concerns the public celebration of divine worship, etc., by
1 Schmalzg., 1. c, n, 383; Stremler, 1. c, p. 346.
so The Ecclesiastical Interdict.
all persons whatsoever who may be in the place, and consequently also by strangers, by the laity and the clergy, by the regulars, i.e., exempted persons no less than by the secular Ecclesiastics, nay, even by the Bishop himself by whom the interdict was fulminated.
3342. We say, "so far as concerns the public celebration,"
c. ; for, as we shall see below, Ecclesiastics, both secular and regular, may every day privately \ — i.e., with closed doors, in a low voice, without the sound of bells and without admitting those who are interdicted by name, or gave cause to the interdict — say Mass, recite the office, etc., in churches and monasteries.1 Before the time of Pope Boniface VIII. this was not allowed. The rigor of the old law was relaxed by this great Pope in his decretal Alma, which now forms the law on this head. Of course, it is clear that Ecclesiastics, secular or regular, cannot celebrate as above, if they are themselves under a personal interdict, nor can they do so in the case of a special local interdict, v.g., in a church specially interdicted, nor in the case of a general personal interdict ; they can do so only in a general local interdict.2 Moreover, those who are the cause of the interdict (we speak here of a general local interdict), i. e.y those on account of whose crimes and wicked conduct the interdict has been inflicted, are expressly excluded by Pope Boniface VIII. (1294-1303), in his celebrated decretal Alma, which forms at present the law of the Church on this mat- ter, from the above privilege of celebrating or assisting at divine service. For they incur ipso facto also a personal interdict, 3 and consequently cannot take part in divine worship anywhere, even out of the place interdicted. 4
3343. Having shown what places fall under a local interdict when it is a general one, also what persons and how persons
1 ( ap. Alma 24 de sent, excom. in 6° (v. II.)
* Schmalzg.. 1. c, n. 366; Stremler, p. 355.
3 Cap. Si sent. 16 de sent, excom. in 6°. 4 Schmalzg., 1. c, n. 333.
Tki EccUsiastical Interdict* I
.1: c in< in ( * ii\ affected bj it, we hoh proceed to the personal interdict. What persons th edundera/* rsonal
interdi( I . w h< n the lattei , m hen a oat ion,
community, 01 othei moral oi corporate bodj is interdicted? Bach and everj member ol such nation, i i community, or body corporate, and consequently (a) also those who are inno cent, foi the} fall under the interdict because Hi mem-
bers of a guilty communitj : (#) Ecclesiastics and religious, unless they are declared exempt from it.
j.|. The following persons, how are exempted from
a general persona] interdict: i. Strangei students, government officers, even though they have lived for a considerable time among the interdicted citizens; 2. Bishops, unless they are expressly mentioned;' 3. Infants not vet arrived at the use oi reason — nondum doli capaces^ — and insane persons. They cannot , however, receive ecclc- siastical burial, since Ecclesiasties cannot, officiate at or give such burial. 4. Those who leave the community ^v people interdicted, in order to establish a domicile elsewhere; for by that very fact they cease to belong to the community or people interdicted. ■
3345. — 5. If the laity is interdicted, the clergy is not con- sidered as interdicted; and vice versa, if the clergy is interdicted, the laity is not included. 6. If the secular clergy is interdicted, even though by the Pontiff or other Superiors vested with jurisdiction over seculars and regulars, the religious are, at least according to the more probable opinion, excluded, except (a) when they have a secular bene- fice ; for then they constitute one body with the secular clergy; (b) where all ecclesiastical persons are interdicted; for all religious whatever, whether male or female, are regarded as ecclesiastical persons. a
1 Cap. 4 de sent, excom. in 6° (v. II). * Schmalzg., 1. 6. t. 39, n. 336.
c- lb.. 1. c. n. 339.
The Ecclesiastical Interdict.
Art. III. By Whom and for what Cause can they be imposed?
3346. Q. Who can inflict an interdict?
A. Only those who have jurisdiction in the contentious forum. Hence the rule is that an ecclesiastical Superior who can impose excommunication and suspension can also inflict an interdict. The following persons, therefore, can fulminate an interdict: 1. The Pope and his legates, nun- cios, and delegates and subdelegates ; 2. Bishops and others having quasi-episcopal jurisdiction over their subjects ; 3. Vicars-Capitular, pending the vacancy of the see. ' 4. Regular prelates can inflict a personal interdict upon their subjects, but not a local one. 2
3347. Q. For what causes can an interdict be imposed ? A. Only for crimes, and not for any other cause. The
reason is that it is a grave punishment. Now reason itself dictates that, where there is no offence, there shall be no punishment. Moreover, the interdict is one of the severest ecclesiastical punisliments. In some respects, it is even severer than excommunication itself. Now the Church, following the rules of natural and positive law, inflicts the most rigor- ous penalties only for the most heinous crimes, 3 and even then only with great circumspection and but seldom, namely, only when the delinquent has become entirely in- corrigible and there is no other means of bringing him back to the path of duty. Hence an interdict (as has already been said of excommunication and suspension) can be in- flicted only for offences which, besides being external and complete, are mortal.
3348. Nay, as reason and equity and natural justice demand that there shall be a due proportion between the crime and its punishment,4 it follows that, when the interdict
1 Cone. Trid., sess. xxiv., c. 16 de Ref. ■ Schmalzg., 1. 5, t. 39, n. 340, 341.
* Fessler, Exconi., p. 17. 4 Stremler, p. 348.
/'/' lesiastical Inlet did*
i general, whcthei local 01 personal, and therefore afl< I w hole < ommunit \ . it i annol be lnfli( ted av( ci im<
which are, at least in a measure, and common, o\ ira
putable to the entire community affected ; r) when tl
crime is committed l>\ the head oi the community 01 oi the civil government, and approved oi i»\ the i ommunit}' , </• the communit} itself, such ai a Chapter, in i i<n\ oi
community, breaks a law; (c) where the offence, without being committed by the community as such, is, nevertheh perpetrated by a majority oi its members taken in th< Individual capacity.1 Hence such an interdict can nei be inflicted for crimes, no matter how enormous, oi private individuals
19. Q. Can one or more individuals (not a community) be put under b partial and briei interdict for a venial sin?
A. We have already given the answer above, Nfos. 202 1 , 2022, to which place we refer the reader. We here but add with Stremler 3 that, at the present day, the affirmative opinion is but little sustained in theory, and entirely abandoned in practice. Hence it would at present be rash and imprudent, as Stremler says, to follow in practice the opinion which affirms that the interdict or other censure may be imposed for venial offences. This becomes truer still, when we consider, as the same author continues, that the spirit of the Church in our day is to use the censures more sparingly than ever, and only in matters of great importance to the welfare of the Church. *
Art. IV.
Formalities to be observed in inflicting the Interdiet.
3350. They are, generally speaking, the same as those required fo** excommunication and suspension, and therefore
1 Stremler, p. 345. 9 Arg. cap, Non est, II de Spons.; Schmalzg., 1. c. n. 345. » P. 349. « lb.
354 The Ecclesiastical Interdict,
regard cither the canonical admonition and the precept, or the trial, or the manner of pronouncing sentence.1 As they have been already explained, we deem it unnecessary to repeat them here.
Art. V. Effects of Interdicts.
3351- Q- What are the effects of an interdict?
A. An interdict forbids the following acts: i. To cele- brate Mass, or to assist at it, or to perform any other ecclesiastical function or assist thereat ; 2 2. To administer or receive certain sacraments ; 3 3. To give or receive ecclesiastical burial.4 The interdict produces all these effects, if it is inflicted unrestrictedly ; but if it is imposed in a restricted manner, it will, of course, produce only such effects as the Superior interdicting may wish. 6 We shall now briefly discuss each of these three effects.
§ 1. ProJiibition to celebrate or assist at Divine Service.
3352. By divine service or ecclesiastical functions are here meant those functions which are usually performed only by Ecclesiastics, as the Mass, blessing of the baptismal font, of palms on Palm Sunday, of candles on the Feast of the Puri- fication ; also the blessing of a church, of sacred vestments, of holy water ; also the saying of the office in choir. 6 Ac- cording to the old law of the Church, as it existed down to the thirteenth century, it was absolutely forbidden, at any time during an interdict, to celebrate or assist at any of these functions. 7
3353. But the rigor of this law was relaxed by Pope
1 Cf. Schmalzg., 1. c, n. 49; Stremler, p. 363. 2 Cap. Permiitimus 57 (v. 39). 3 Cap. Responso 43 (v. 39); Cap 16 de sent, excom. in 6°.
* Cap. Quod in te 11 de poenis et poenit. 5 Schmalzg., 1. c, n. 350.
• lb., n. 361. 7 Cap. 57 (v. 39); Cap. 16 in 6° (v. II).
The Ecclesiastical Interdict*
Boniface VIII., in his celebrated decretal . \lma% which n forms i he law oi I \n ( inn i h; i »ii i ins head Accord t his deci etal, it is .ill' w ed, at pi e tent, i« h l secular oi regular, unless th<\ are personallj interdicted, in time <>i .1 general local interdit I (bui not during a part ui.ir loci I interdict, noi during ;i personal interdict, whether tieral or particular), daity to sa} M ind t<» perform the other acts oi divine servii 'ina) in all churcl
and monasteries, provided the following conditions pi scribed in the Cap. Alma by Boniface VIII. be observed:
That it be done in a low voice; (&) with closed dooi (c) without thesoundol hells, without singing, or without the use of the organ ; (//) that those persons who arc under
excommunication, or a personal interdict, or have been the
cause of the local interdict, be excluded.
3354. These excommunicates 01- interdicted persons are to be excluded only in case they are excommunicated and interdicted by name, and denounced publicly as such ; for, as was seen, the faithful are bound to shun only those who are down need.
3355. Moreover, at present, according to the decretal Alma and later concessions, it is permitted, during a general local interdict, to celebrate Mass and perform the other divine functions, witJi all the customary solemnities and publi- city, on Christmas, Easter, Pentecost, the Assumption of the Blessed Virgin, the Immaculate Conception and its Octave, and on Corpus Christi and its Octave. On these festivals, only those who are excommunicated by name and publicly denounced as such, and those whose excesses have caused the interdict, are to be excluded. ■
§ 2. Privation of the active and passive Use of certai?i Sacraments.
3356. This prohibition extends not to all, but merely to
1 Cap. Alma 24 in 6° (v, 11).
356 The Ecclesiastical Interdict.
some sacraments. Prior to the time of Boniface VIII. the sacraments of Penance and the Holy Eucharist could be administered, during a general interdict, only to such as were dangerously ill. x Baptism and Confirmation could be administered to all.2 But this Pope relaxed the severity of the above law, and granted that the Sacrament of Penance could be administered to all, and not merely to those who were dangerously ill ; 3 that the Holy Eucharist, however, could be given only to those who were dying, or danger- ously sick, and that per modutn viatici, and also to those who were in danger of death otherwise than by sickness, v.g., to those about to be engaged in battle, or about to enter upon a dangerous sea voyage. 4
3357. The law, therefore, as at present in force, is that the sacraments of Baptism, Penance, and Confirmation can, during a general interdict, local or personal, be adminis- tered to all persons whatever, except (a) to those who are the cause of the interdict, i.e., those guilty of the crime for which the interdict was imposed, and their abettors, favorers, and counsellors in said crime ; 5 (b) those who are under a special personal interdict. Holy Orders can- not be conferred upon, nor can Extreme Unction be admin- istered to any one during the time of a general interdict, personal or local. 6 Marriage, according to the more proba- ble opinion, can be contracted by parties, even according to the Tridentine prescription Tametsi (where this is in force), during a general interdict, even in the place interdicted. 7
§ 3. Prohibition to give or receive Ecclesiastical Burial. 3358. By Christian or ecclesiastical burial (sepultura
1 Cap. Quod in te\\. (v. 38). 2 Arg. cap. Quoniam 19 (v. 11).
• Cap. Alma cit. * Cap. Quod in te 11 (v. 38) ; Re iff., 1. c, n. 202, 203.
• Cap Alma cit.
• Cap. Quod in ie cit. This decretal wasissuedby Pope Innocen1 UI. <■ iioS-^116. j 7 iichmalzg., 1. c, n. 358.
//, Usiastical Ink rdicL 357
cultsnistu ,j) we bere mean n< >t <>iil\ (a) the inhumation <>r Intei men! in .1 mlci ed pia< • a t he 1 bui » li 01 « enn terj which is blessed, (#) but also the entire funeral obsequ or solemnities, namely, the tolling ol bells, the brin remains to the church, all the prayers, religiou ind
ceremonies, such as chanting the office oi the dead, a
iting Requiem Mass which are said or p< rformed b) the ministers oi the Church, either in the church or at the grav<
i '. I low docs .in interdict deprive p < le-
siastical burial?
./. We must distinguish between the various kind interdict. 1. If the interdict is a general local one, all the faithful without exception, even though they be infants or insane, are forbidden to receive ecclesiastical burial, in the place interdicted.' We say, in the place interdicted; hence, any of the faithful who may die, unless he be under a special personal interdict, can be conveyed outside the interdicted place and there receive ecclesiastical burial.
3360. From the general rule just stated are exempted all ecclesiastical persons. 3 They can receive ecclesiastical burial, during a general local interdict, provided (a) thev are not under a special personal interdict ; (b) have not given cause to the interdict ; (c) that the burial take place quietly, without the tolling of bells or any other religious or ecclesiastical solemnity. 4
3361. — 2. If the interdict be a special local owe, there is no doubt that ecclesiastical burial is forbidden in the particu- lar place, or church, or cemetery interdicted, except to
1 Cap. Qiiod in te cit.; Miinchen, 1. C, vol. 2, p. 212; Brabandere, Jur. Can. Comp., vol. 2, n. 774.
3 Cap. Quod in te cit.; Cap. 8. in 6° (v. 7> ; Clem. Eos I (iii. 7).
3 The words ecclesiastical persons are here used in their broadest sense, i.e., they signify not only the secular clergy, even those only in tonsure, but also religious male and female.
* Cap. Quod in te cit.
358 The Ecclesiastical Interdict
Ecclesiastics, or at least to those Ecclesiastics who are at- tached to the church interdicted.
3362. — 3. When the interdict is a particular personal one it is plain that all persons whatsoever, even though they be Ecclesiastics, who are under such an interdict, must be deprived of ecclesiastical burial, provided these persons be published by name as so interdicted, according to the Const. Ad Vitanda of Pope Martin V. The same holds of any person whose crime has been the cause of the inter- dict. For such a one is always personally interdicted, even when the interdict of which he is the cause is local onlv-
3363. — 4. Where the interdict is personal, indeed, but general, v.g., if all the inhabitants of a city are interdicted, Stremler l holds that no one is deprived of ecclesiastical burial, as, according to the Const. Ad Vitanda of Martin V., only those who are interdicted by name and published as such must be shunned in divinis, but not such as are under censure only in a general way, as is the case in a general personal interdict. Schmalzgrueber 2 and Reiffenstuel, 3 however, seem to dissent from this view, and to teach that, when the sentence of a general personal interdict is duly published, it brings all the inhabitants interdicted within the provisions of the bull of Martin V.
3364. Note. According to the Const. Ad Vitanda of Pope Martin V., which constitutes the present law of the Church on this head, in all interdicts, local or personal, the persons who are affected by the interdict are not vitandi, and conse- quently cannot be deprived of ecclesiastical burial, save when the interdict is officially made public, that is, when it is officially proclaimed by the competent ecclesiastical Superior that such a territory or place, such a people or such an individual, has been interdicted. 4
1 P. 359- 2 l-cm n. 377- 3 L. v., t. 39, n. 213.
4 Craiss., n. 6626; Schmalzg. I.e., n. 389.
/'. / . / fnia
Aii VI Punishments incurred far violating Interdicts*
;;<•;. Q, What Bin do lay persons commit, and what punishments do the)' incui foi violating an interdict ?
./. Ii during the time the} are under a personal interdict they presume to receive any of the sat raments forbidden tJu m by the interdict ', they commit a mortal si//, being guilty of disobedience in a grave matter. In like manner do the faithful sin grievously, ii thej receive the sacraments in a piiid- which is interdicted* '
3566. By reason oi assisting at divit they com-
mit a mortal sin in the following cases : ' (a) 1 f they compel an Ecclesiastic to celebrate publicly and solemnly in an interdicted place ; (/>) If they dare to convene the people by the sound of bells or Other public announcement, in Order to assist at divine worship in an interdicted place ; (c) If they presume to hinder persons who are by name excommunicated or interdicted from leaving a church or sacred place, after being admonished by the clergy to leave ; (//) If they themselves, being requested to leave, refuse to do so. 3 Formerly laics also incurred excommunication reserved to the Roman Pontiff, in the four cases just men- tioned. 4 At present, this punishment is no longer incurred, being omitted in the Const. Apostolicce Sedis of Pius IX.
3367. Q. What sin do Ecclesiastics commit, and what pun- ishment do they incur, by violating an interdict?
A. 1. They commit a mortal sin, when they violate an interdict, local or personal, by administering or receiving the sacraments, and also by celebrating in an interdicted place. 6 2. Moreover, Ecclesiastics who celebrate Mass or exercise any other act of a sacred ordo while they are under a special
1 Schmalzg., L 5, t. 39, n. 391. 2 lb., n. 392. 3 Clem. Gravis, 2, de sent, excom. 4 Clem. Gravis cit 6 Schmalzg., I.e., n. 390.
j6o The Ecclesiastical Indcrdict.
persona] interdict, incur ipso facto irregularity, on the general principle that Ecclesiastics who violate a censure become irregular. 3. But when they knowingly (a) celebrate divine worship or cause it to be celebrated in places which are interdicted, either by the ordinary, or the delegated judge, or by the law, (b) or admit persons who are excommunicated by name to divine functions (officio, divind), or to the sacra- ments of the Church, or to ecclesiastical burial, they incur at the present day, according to the Const. Apostolicce Sedis of Pope Pius IX. (1869), only the interdict ab ingressu ecclesice, but they do not incur irregularity, ! as they do not violate any censure incurred by them personally.3
Art. VII. What Interdicts may be imposed at the Present Day ?
3368. Q. What interdicts are at present incurred ipso facto, according to the Common law of the Church?
A. We premise : As we have already explained, the Const. Apostolicce Sedis, issued by the saintly Pope Pius IX., in 1869, now forms the common law of the Church in regard to cor- rectional punishments which are inflicted by the general law of the Church and incurred ipso facto, and all preceding legislation contrary to it is abolished. We now answer: Two, by the Const. Apostolicce Sedis, and two by the Coun- cil of Trent, as continued in force by the Const. Apostolicce Sedis. 3
3369. They are : I. " Interdictum Romano Pontifici speciali modo reservatum ipso jure incurrunt Universitates, Collegia, et Capitula, quocumque nomine nuncupentur, ab ordinationibus seu mandatis ejusdem Romani Pontificis pro tempore existentes ad universale futurum concilium appel-
1 See Const. Ap. Sedis of Pius IX., Interdicta, § II. Cf. Schmalzg., I.e., n. 394. 3 Const. Ap. Sedis, Interdicta, Denique § II.
lantia."1 II. Scientei celebrantei \<i celebraii facienl divina in l< >cia ab 01 dinai it ». \ el judi< c d< jure intcrdii ti . aul nominatim ex< ommunii ato ad divina ficia sen ecclci im sepulturam admittentes, intetdictum
ip o jure in* ui i nut , »l< mec ad ai bit i ium ejus, cujus sententiani contempserunt, competentei
Uvcrinl.'*
o. III. " Non liceat capitulis, sede vacante, infra an- num a die vacationis, ordinandi licentiam aul littei dimissorias . . . alicui, qui beneficii ec< l< sia ;ti< i ai - epti, aul [piendi occasione cretatus non fuerit, concede] Si Becus fiat, capitulum cpntraveniens subjaceat Interdicto." [V. " Metropolitanu6, suffraganeos episcopos absent (ultra secundum semestre tempus), " Metropolitanum \< absentem," Cut supra") " Suffraganeus episcopus antiquior residens, sub pcena interdicti ingressus ecclesice eo ipso incur- renda, infra tres menses per lit t eras seu nuncium Romano Pontifici denunciare teneatur."4 As will be seen, these four interdicts are personal, not local.
3371. Besides these four, the Const. Apostolicce Sedis of Pius IX. retains the interdicts made in regard to the elec- tion of the Roman Pontiff and the internal regimen of religious communities, in the following manner: "Quae vero censures . . . interdicti nostris aut prrcdecessorum nostrorum constitutionibus, aut sacris canonibus. praetereas quas rccensuimus, latae sunt, atque hactenus in suo vigore perstiterunt, sive pro R. Pontificis electione, sive pro interno regimine quorumcumque ordinum et institutorum regula- rium, necnon quorumcumque collegiorum, congregationum, ccetuum, locorumque piorum, cujuscumque nominis aut generis sint, eas omnes firmas esse, et in suo robore per-
1 Const. Ap. Sedis, Interdicta, Denique,^ 1. 2 Ib.,§ II.
8 Cone. Trid., sess. vii., cap. 10 de Ref.
4 lb., sess. vi., c. 1 de Ref. ; Cf. Soglia-Vecch., vol. ii., p. 368; Avanzini. Com in Const. Ap. Sc-rfis, p. 58
6
62 The Ecclesiastical Interdict.
manere volumus et declaramus."1 All other interdicts lata scntentiw are therefore abolished at present.
Art. VIII. How do Interdicts lapse ?
3372. Q. How do interdicts lapse?
.-/. 1 Interdicts inflicted for a specified time or until a cer- tain thing is done, lapse of themselves (as excommunication and suspension), when the time has expired, or the condi- tion been fulfilled. Before the expiration of such time or the fulfilment of the condition in the case, the interdict erases only by absolution or by pardon (dispensatione), which no one can give save the person who inflicted it, or his Superior." 2. If it has been imposed per modum censiirce, and consequently without any fixed time, it lapses, as a rule, only by absolution, as suspension and excommunication would in a similar case.
3373. We say, as a rule; for there are some exceptions. Thus a general personal interdict lapses with regard to the entire community by the very dissolution or dismember- ment of such community, and with regard to individuals, as soon as they cease to be members of this community. Thus again, a special local interdict ceases, not only by absolution but also by the destruction of the place (v.g., of the church) interdicted. A general local interdict ceases only by absolution.
3374. Having shown when interdicts lapse by abso- lution or by pardon, it remains to be seen by whom
1 Const. Ap. Sedis of Pius IX., Interdicta, % Quae vero.
: Schmalzg., 1. c, n. 398. However, Bishops are authorized by the Council of Trent (Sess. xxiv., c. 6 de Kef.) to absolve or dispense from all interdicts (also from all suspensions) arising from a crime that is secret, even though reserved to the Apostolic See, except however (a) that proceeding from wilful homicide (£) and those crimes which have already been carried before a legal tribunal.
Flu EuUs\ // bU$rd\
this power oi pardonin granting th< absolution tan \><-
exercised. When the interdict is l& <//. whethei eral 01 p. n ticulai . .ind c\ en i h. hi • h reserved, it < annot be relaxed Bavc l»\ the e< cl( ;ia ti< a] Superior who has episi pal jurisdiction over the place interdi( ted. The same holds wiili regard t.».i onal interdict, since it < an h<-
raised onl} l»\ .1 person having jurisdiction in t rne
over the com muni tj Interdicted. Otherwise, it Ecclesiastic could raise such an interdict, it would naturally
follow that ecclesiastical discipline would be weakened, and the punishment in question might frequently he remitted
against the will of the Superior l>v whom it was imposed. '
3375« But when the interdict is a particular personal one,
and not reserved, any confessor, at least according to a
probable opinion, can absolve from it in the same mannci excommunication, when not reserved, can be remitted by any confessor.- Of course, if the interdict in the case (a special personal one) is reserved, the absolution can be granted only by the person to whom it was reserved or by his Superior. s
1 Schmalzg., 1. 5, t. 39, n. 400.
- Of course, the interdict (specially personal) must be inflicted a jure {i.e.. l>y the general law of the Church, or by particular law) ; for an interdict imposed ab homim . is always reserved. 3 Schmalzg., I. c, n. 401.
CHAPTER IV.
INTERMISSION OF DIVINE SERVICE.
(Cessatio a Divinis.)
3376. The ccssatio a divinis is a suspension or discontinuance of divine service {officio, divino) in a place where it can and may otherwise be held. It is not a punishment properly speaking, and consequently not a correctional punishment or censure. For while it is ordered only on occasion of most grievous offences, yet it is not inflicted precisely in punish- ment of such crime, but os a sign of grief and poin with which the Church is afflicted on account of a most grave injurv inflicted upon her and the honor of Almighty God, and as a reparation for such injury,1 and also in order that by this public manifestation of grief and horror the delin- quent may be compelled to desist from his wicked course and make due satisfaction. 2 It is a simple prohibition upon Ecclesiastics, enjoining them not to hold divine service in a certain place or places.
3377. This discontinuance of divine service, though an imitation of the interdict, and bearing a marked resem- blance to it, is yet distinct from it and differs from it in various respects. First of all, this interruption is not a censure or correctional punishment, as was seen, but o simple prohibition. Hence those who violate it commit, indeed, a grievous sin, but do not incur irregularity. Next, it is always local, never personal.
3378. Finally, the effects of the intermission under discus-
1 Schmalzg., 1. c, n. 402.
« Ex cap. Irrefragabili 13 de off. ord. (i. 31) ; Cap. 2 in 6° (i. 16) ; Cap. Quam- vis 8 de off. ord. in 6°.
Int$rmiss\ m of D
.11 .11 c in< i] < t.ii i ea< King i hi I »f the inter* li<
Foi "i is the exact observano ol what the time oi an interdict i»\ the oldei la^i oi the Chun h, m force prioi to the mitigation introduced by Pope Boniface VIM., in his famous decretal Alma M<ii
n.' Hence, during .1 \tioa divinis%\\ is not allow to celebrate divine ervic( oi Ma* , except 01 k foi
the renewal oi the sacred speci< s, and even then 011I3 in the most private manner possible. Nevertheless many canonj while admitting this t<> be according to the letter oi the law, \ ei think that the custom to the contrary has sufficiently authorized the application oi the Cap. A Ima Mater also to the cessatio a divinis*
3379. Q. What are the effects of the intermission of divine service in qu< stion ?
A. Speaking in general, these three: the privation (a) of divine worship; (//) of certain sacraments ; (c) of ecclesiasti- cal burial.4 Are all these effects annexed to every cessatio a dwinis, or can the ecclesiastical judge inflict a cessatio a divinis in such a manner that it will produce but one or tw< of the above effects? The Pontiff certainly can. As to others, the question is controverted. Some affirm that every ecclesiastical judge can inflict a partial cessation. Others deny this, on the ground that the above effects are all annexed to a cessation by the general law of the Church,6 which cannot be changed by the inferior. 6
3380. We shall now briefly explain how the cessation pro- duces each of the three above effects. We have already sufficiently set forth how divine services {officia divind) are to be discontinued. Next, the sacraments which, as we have seen, can be administered during an interdict, can be also given during a cessatio. Finally, as to the ecclesiastical
1 Craiss., n. 6638. 2 Schmalzg., 1. c, n. 407.
8 Stremler, 1. c. p. 365. * Cap. Non estvobis II, de sponsaL
* Arg., cap. 11 cit. 6 Schmalzg., 1. c. n. 406.
366 Intermission of Divine Service.
burial, a distinction must be drawn between the solemnities or ceremonies, such as saying the office of the dead, Mass of requiem, or the other prayers usually said by the priest at the funeral — and the inhumation or interment in blessed or consecrated ground. ' The latter is allowed during a cessatio; the former are forbidden, since they are officio, divina, which are prohibited. 2
3381. Who can inflict a cessation? We premise : a cessation is imposed (a) either by the law itself (a jure), and ensues ipso facto when a Church is polluted or execrated ; (/;) or by the proper Superior {ab komine). Observe, in the present article we speak only of cessation imposed ab homine. We now answer : It can be ordered only by one who has jurisdiction in for 0 cxterno, as we have seen in the case of excommunica- tion, suspension, and interdict. Hence it can be inflicted only (a) by the Pope ; (b) by Bishops and others possessed of quasi-episcopal jurisdiction ; (c) by the Chapter, through its Vicar-Capitular sede vacante, (with us, by the administrator of the vacant diocese. 4)
3382. For what kind of crimes and in what manner can the cessation be ordered? 1. The crime must be of the gravest character and, as a rule, of such a nature as to inflict very serious injury upon the Church, v. g., laws enacted against the liberties of the Church ; taxes or contributions unjustly imposed on Ecclesiastics.5 2. This crime should be notorious by notoriety of fact, so that the scandal given by it may be remedied by the cessation. 3. The order for the cessation must be given in zvriting, setting forth the cause or crime for which it is imposed. 4. The delinquent must be first canonically warned. 6
3383. Observation. At the present day, the intermission
1 Schmalzg., 1. c, n. 413. a Stremler, 1. c, p 365.
3 For the acts which cause a church to be polluted, see Sabetti, Comp., n. 916, q. 2. * Schmalzg., 1. c. n. 414. 6 G/ossa, in cap. 2 de off. ord. in 6° (i. 16.)
■ Schmalzg., 1. c, n. 417.
fnii
of divine i><-r rice or < rimo I i ompleto i\
Fallen into disuw 5f i eml< I ntei diets, in li
m. unit i , .1 - \ as seen, ai e now inflit ted raw h equenth
than in foi raei i iraea ; in (a< t , the \ ,n.i\ be said to hi out oi use. at least, so far as theii formei comprehi effects are concerned. Their observance, considering the temper oi our limes, would be 5( an < l\ feasible, nay, would redound rather to the destruction than the edification oi the members oi I he Church.
3384. Yet we flatter ourselves that our discussion of into r- diets and cessations has not been altogether abortive and useless. For while the application of the principles undi lying these measures lias changed at present, \<t the
principles themselves are as true tO-day as they were seven
hundred years ago. Besides, both the interdict and the
Cessation may be and are sometimes inflicted at the present day, though only in a mild form.
1 p. 366.
8 Fessler, Excom., p. iv. ; Schulte, K. K., vol. ii., p. 391 ; Walter, $ 186, p. 371.
Finis.
CONTENTS,
Page.
HOOK III.— ECCLESIASTICAL PUNISHM] . y
PART I.
ECCLESIASTICAL PUNISHMENTS IN GENERAL.
(II \!TKK 1. True Idea of Ecclesiastical Punishment.
Art. I. lias the Church a Right to Inflict Punishments? . 7
Art. II. What is a Punishment? . ... • 9 Art. III. What arc Crimes ? 10
CHAPTER II.
The Various Kinds of Ecclesiastical Punishments Art. I. Penances, ........
Art. II. Punishments, ... ....
§ 1. Preventive and Repressive Punishments, .
§ 2. Reforming and Vindicative Punishments, . Art. III. Procedure for Inflicting Punishments, Art. IV. Ordinary and Extraordinary Punishments, Art. V. Punishments ferendce and latce senfentice, . Art. VI. Temporal and Spiritual Punishments,
CHAPTER III.
12 12
13 13 17 21
23 23
When and by Whom Ecclesiastical Punishments can be
Inflicted. Art. I. For what Unlawful Acts can a Person be Punished ? . 25 Art II. When are Persons Guilty of Unlawful Acts Freed
from Punishment ? 29
§ 1. Ignorance, 30
37° Contents.
§ 2. Forgetfulness and Inadvertence, . . . -35
§ 3. Violence and Fear, 36
Art. III. Who can Punish ? 37
§ 1. Can the Bishop Exercise Contentious Jurisdiction Out
of His own Diocese ?...... 37
§ 2. Can a Bishop Exercise Voluntary Jurisdiction Outside
His own Diocese ? . . . . . . . 38
§ 3. Rules which Guide the Judge, when he Inflicts Pun- ishment, ........ 41
Art. IV. Upon whom can Punishments be Inflicted ? . 14
PART II.
ECCLESIASTICAL PREVENTIVE PUNISHMENTS.
CHAPTER I.
Spiritual Exercises.
Art. I. How are Spiritual Exercises Preventive Remedies ? . 47 Art. II. How are they Imposed ? 49
CHAPTER II. Canonical Admonitions*
Art. I. What are the Canonical Warnings ? . . . .55
Art. II. When can the Warnings be Given ? . . . .56
Art. III. Is it Necessary that they shall be Given in a Legal
Manner? . . . . . . . • 57
Art. IV. How are they Given Paternally ? .... 61
Art. V. How are they Given in a Legal Form ? . -65
CHAPTER III.
The Precept
Art. I. What is the Precept ? 68
Art. II. When can it be Enjoined ? . .... 69
Art. III. How is it Given ?...;-•• 72
I Mis, 371
PARI III.
REPRESSIVE VINDICATORY TUNISHMENTS.
SECTION 1
Spiritual Vindicatory Punishments.
CHAPTER I.
Dismissal of Rectors also in the United States.
An. l. Correct Idea of Dismissal, 77
Art. II. Dismissal of [irremovable Electors, . . . • 79
£ 1. Dismissal of Irremovable Rretors where the General
I .aw fully ( obtains, ...... 79
g 2. Dismissal of 1 [removable Rectors in the United States, 84
g 3. Dismissal of Rectors who are not Irremovable, . . 89 § 4. Dismissal of Rectors in English-Speaking Countries
Outside of the United States, . . . . 91
I. Dismissal in England, ...... 91
II. Dismissal in Ireland, etc., ...... 93
Art. III. Support of Dismissed and Suspended Ecclesiastics, . 95
§ 1. Support of Dismissed Rectors, ..... 95
§ 2. Support of Suspended Ecclesiastics, .... 101
CHAPTER II.
Transfers as Punishments.
Art. I. Nature and Division of Transfers, .... 105 Art. II. Transfer of Irremovable Rectors also in the United
States, ......... 107
Art. III. Transfer of Removable Rectors also in the United
States, no
CHAPTER III.
Dismissal Combined with Disqualification for Office.
Art. I. Character of this Punishment, . . . . ,114 Art. II. Formalities — Duration, 114
372
Contents.
CHAPTER IV.
Degradation of Ecclesiastics. Art. I. Nature and Effects of this Punishment, . . .116 Art. II. Manner of Inflicting It, 118
CHAPTER V.
Infamy as a Canonical Punishment. Art. I. True Idea of Canonical Infamy, .... 119
Art. II. Effects of Infamy of Law or Fact, . . . .122
CHAPTER VI.
Canonical Disability for Ecclesiastical Offices.
Art. I. Character of the Punishment, . . , . , 124 Art. II. Effects of this Disability 125
CHAPTER VII.
Canonical Criminal Unfitness for Orders and the Ecclesi- astical State.
Art. I. Nature of this Unfitness, 126
Art. II. Effects of this Punishment, 128
§ 1. Incapacity for Orders, . . . . . .129
§ 2. Incapacity to be appointed to Ecclesiastical Offices, . 129 § 3. Dismissal from Ecclesiastical Offices, . . .130
Art. III. Causes of this Disqualification, 131
§ 1. Criminal Causes, . 131
§ 2. Natural Causes, ....... 132
Art. IV. Does Ignorance Excuse from this Disability ? . . 134 Art. V. How this Disability is Removed, .... 135
SECTION II.
Temporal and Corporal Vindicatory Punishments.
CHAPTER I.
Various Kinds of these Punishments.
Art. I. Pecuniary Fines, ... .... 138
Art. II. Ecclesiastical Imprisonment, 141
Art. III. Exile in a Mild Form, 142
( Olltt Ills.
PARI IV.
REPRESSIVE REFORMATIVE PUNISHMENTS.
SEC i i< >N I. Reformative Punishment! in General. CHAPTER I. Nature of these Punishments. 143
CHAPTER II.
Various Kinds of Reform Punishments.
Art. I. Reformative Punishments a jure and ab homine% . 146
Art. II. Reform Punishments ferenda and lata sententkB} . 1 Art. III. General Remedies, . . . . . . .149
CHAPTER III.
What Persons can Inflict them ?
Art. I. Who arc Vested with Ordinary Power ? . . . 152
Art. II. Who are Vested with Delegated Power? . . . 155
Art. III. Conditions of the Exercise of this Power, . . . 157
CHAPTER IV.
Upon Whom can they be Imposed ?
Art. I. Adult Members of the Church, 161
Art. II. Entire Communities. . 162
Art. III. The Pope and Bishops, 164
Art. IV. Strangers and Travellers, .165
CHAPTER V.
For what Causes can they be Inflicted ?
Art. I. Crimes which are Grave, . . .... 167
Art. II. They should be Preceded by the Milder Remedies, . 170
Art. III. Incorrigibleness, , 172
Art. IV. Crimes which are entirely of the Past, . , 173
Art. V. Future Crimes, . 174
3 74 Contents.
CHAPTER VI.
Formalities to be Observed in Inflicting them, also in the
United States.
Art. I. The Canonical Admonitions and the Precept, . 178
§ 1. Necessity of the Previous Admonitions, . .179
§ 2. The Warnings Repeated Three Times, . . .185
Art. II. The Trial, 186
§ 1. The Necessity of a Trial according to the General Law, 178 § 2. The Formalities of the Trial according to the Sacred
Canons, . . . .... 192
§ 3. The Trial according to the Instruction of June 11, 1880, 182 £ 4. The Trial in the United States according to the In- structions of 1878 and 1884, .... 193
§ 5. The Trial in other Missionary Countries, . . 194
Art. III. The Sentence, ....... 196
§ 1. Weighing of the Evidence, 197
§ 2. Formalities of the Sentence, ..... 200 § 3. Formalities of the Sentence in the United States, . 204 § 4. Penalties Incurred for Violating these Formalities, . 207 § 5. Wording of the Sentence, . . . . .211
§ 6. Publication of the Sentence, . . . . .212
CHAPTER VII.
Appeals against Repressive Correctional Punishments.
Art. I. Is it Allowed to Appeal against these Punishments, . 215 Art. II. Effects of Appeals against Censures already Inflicted, 215 Art. III. Appeals against the Publication of Censures, . 220 Art. IV. Effect of Appeals against Threatened Censures, . 223 Art. V. Procedure before the Judge ad quern in adjudicating
Appeals against Unjust Censures, . . . 226
Art VI. Procedure before the Metropolitan in Appeals against
Invalid Censures, .... . . 229
§ 1. Procedure when the Censure is Certainly Invalid, . 229 § 2. Procedure when it is Doubtful whether the Censure is
Invalid, . . . . . . . .231
( oniiui
§ j, Mow the Metropolitan Impart! the Absolutioa
tdam
Art. VII Pi lure before I be Metropolitan in App<
Threatened Censu
CHAPTER vni.
Unjust and Invalid Correctional Punishments.
Art. I. When are Correctional Punishments Unjust and In- valid ? ..... ... 242
Art. II. Effects of Correctional Punishments which art- Just
and Valid, ........ 243
Art [II. What Effects are Produced by Unjust Censun
Art. IV. Effects of invalid Correctional Punishments, . 247
Art. V. Effects of Censures which axea/ltrt and lata $cntcntiu\ 252
CHAPTER IX.
Punishments Incurred for Disregarding Censures.
Art. I. Irregularity as a Punishment for Violating Censures, 254 Art. II. Dismissal as a Punishment for Disregarding Censures, 257 Art. III. Other Punishments Incurred, . . . .257
CHAPTER X.
Who can Release from Repressive Correctional
Punishments ?
Art. I. Do these Punishments Cease of themselves ? . . 259 Art. II. Who can Release from them when they are Inflicted a
jure and incurred ipso facto} . . . . j6i Art. III. Who can Remit them when they are ab hominc ? . 265
CHAPTER XI.
Formula, Conditions, and Modes of Release frorti
Correctional Punishments.
Art. I. Formula of Release, . . . 267
Art, II. Conditions of Release, . . r68
An. III. Modes of Release, < 270
376
Art. |
I |
Art |
II. |
Art |
III. |
§ I. |
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§ *• |
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§ 3- |
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§ 4- |
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IV. |
§ 1. |
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§ *• |
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§ 3- |
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§ 4- |
§ 5-
§ 6. |
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§ 7- |
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§ 8 |
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§ 9 |
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§ ^ |
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§ 3. |
Contents,
SECTION II. Repressive Reform Punishments in Particular. CHAPTER I.
Excommunication.
Correct Notion of Excommunication, . . . 274
How many Kinds of Excommunication are there? . 278 What Excommunicates are to be Shunned ? . . 280
Former Discipline, 280
Present Discipline, . ..... 280
Publication of the Excommunication, . . . 284 Intercourse of the Faithful with tolerati, . . . 284 Canonical Effects produced by Excommunication
even at Present, • . 286
Exclusion from the Sacraments, .... 289 Excommunicates cannot Administer the Sacraments, . 292 Withdrawal of the Suffragia Ecdesice, . . . 295 Excommunicates cannot Assist at the Mass or other Ec- clesiastical Functions, • 296
Disqualification for Appointment to Ecclesiastical Offi- ces, . ........ 299
Withdrawal of the Communicatio forensis, . . 302 Loss of the Rights of Jurisdiction, .... 304
Refusal of Christian Burial. . 307
Exclusion from the Company of the Faithful in the Relations of Every-day Life, ..... 309
Former Discipline of the Church, . 309
Present Discipline, . 311
In what Social Matters are the Faithful Bound to Shun a Vitandus ? . . . . . . . .312
When is Social Intercourse Allowed with a Vitandus? 314 Excommunications in force at the Present Day, . 317 The Const. Apostoliac k Sedis of Pius IX., . . -317 Scope and General Outline of this Constitution, . 318 Reform Punishments of the Council of Trent Retained by Pius IX., 319
Contents*
$ 4. Reform Punishment 1 • the Election ol the
Pope, and the Kr^iincn ol Religious Orders, § 5. The Bearing ol the Constitution ol PI on Vindi-
i .in i] j Punishments, . . .
§ 0. Huw Correctional Punishments are referred in \
Constitution, . ..... 325
1 IHAPTER III.
Suspension.
Art. I. True Idea of this Punishment, ....
Art. II. Various Kinds of Suspension, ....
Art. III. Effects of this Punishment, ....
Art. [V. Punishments Ineurred for Violating Suspensions,
Art. V. Formalities in Inflicting Suspensions,
Art. VI. Release from Suspensions, ....
327 33° 33* 335 33* 34o
Art. VII. Suspensions a jure and lata sent, in force at present, 340
CHAPTER III.
The Ecclesiastical Interdict.
Art. I. Correct Notion of the Interdict, .... 345
Art. II. Various Kinds of Interdicts, 347
Art. III. By Whom and for what Cause can they be Imposed, 352
Art. IV. Formalities in Inflicting the Interdict, . . . 353
Art. V. Effects of the Interdict, 354
§ 1. Prohibition to Celebrate or Assist at Divine Service, 354 § 2. Privation of the Active and Passive use of Certain
Sacraments, . . . . . . . -355
§ 3. Prohibition to Give or Receive Ecclesiastical Burial, 356
Art. VI. Punishments Incurred for Violating Interdicts, . . 359
Art. VII. What Interdicts may be Imposed at the Present Day? 360
Art. VIII. How do Interdicts Lapse ? 362
CHAPTER IV.
Intermission of Divine Service.
Art. I. Nature of this Punishment, ..... 364 Art. II. Its Causes and Effects, 365
ALPHABETICAL INDEX.
(The figures indicate the marginal numbers, not the pages.)
Admonitions, paternal, 1754; legal, 1759,1784; obligation, 2047.
Ad Nutum, 1901.
Ad Vitanda, Const., Martin V., 3175.
Appeals, 3028 ; against censures, 3029 ; before censure, 3046 ; after censure, 3030 ; in temporal effects of censures. 3031 ; procedure, 3051.
Appeal ex Capite Nullitatis, 3071.
Apostolicae Sedis, Const, of Pius IX.. aim 32G3 ; outline, 3264; cen- sures, 3265 ; Council of Trent, 3266 ; Election of Pope, 3273 ; religious orders, 3274 ; Vindicatory and reform punishments, 3277 sq.
B
Benedict XIV., Const, ad Militantis,
7. 3048. Bishop, power to punish, 1720, sq. Burial, Christian, 3236.
c
Causae Criminales, 1677. Causae Disciplinares, 1678. Causae Matrimoniales, 1994. Canonical Proof, 2089. Censures, just, 3055 ; unjust, 3056, 3089; doubtful, 3057.
Church, right to punish. 1658.
Christian Burial, 3236 ; refusal, 8237 ; excommunicates, 3238.
Coercive Power, 1984; of Pope, 1986; of Bishops, 1987 ; of Metropolitans, 1987 ; of Vicars-General, 1990 ; of Religious Superiors, 1991 ; of Plen- ary and Provincial Councils, 1992 ; of Rectors, 1992 ; of Delegates, 1993.
Correctional Punishments, 3088 ; just and unjust, 3089 ; valid and invalid, 3090.
Costs, of trial, 2095.
Crime, 1663; different from sin, 1664.
Cum Magnopere, Instr. S. C. de Prop. Fide, 1672, 1677, 1687, 1696, 1729, 1745, 1755, 1763 sq.
D
Degradation, 1905; verbal and real, 1907; causes, 1909; form, 1910.
Deposition, 1902; form, 1903; dura- tion, 1903.
Disabilities for ecclesiastical offices, 1922, 3216.
Dismissal from office, 1807, 1808.
Dismissal of irremovable rectors, 1815; causes, 1816; form, 1825 ; ipso jure, 1825; in the United States, 1827; in England, 1853; in Ireland, 1856.
.
. \lphmb$Hcal J
I >i mi ...ii i romo\ n
I * i « • i * I'kI" <>i
M.iirli Mtb
. i, .rin, im.:. in England,
I8M Dliqualifl< .it ion for
Offli . nature ffeots,
1924 I)i .qualification for on
B
Excommunication, 8160 j true Idea, B167 ; kinds, 8170; effects, 81
publication, 3181. Excommunicates, to be shunned,
8173 j tolerated, 8182 j social inter*
course, 32 13 sq. Excommunicatus vitandus, 3200. Excornmunicatus toleratus, 3201. Ex capite nullitatis. 3068 ; appeal,
S071. Ex Inf. Conscientia, 2042. External forum, 2043.
F
Fear, exempts from punishment, 1716.
Fines, pecuniary, 1955.
Forgetfulness, 1715.
Forum externum, trial, 2086, 2087, 3038.
Forum internum, 2043; trial, 1085, 2085.
Formalities, of trials, 2078 ; of sen- tences, 3005; obligation, 3012; violation, 3016.
Ignorance, 1702. sq.
Imprisonment, ecclesiastical, 1963; in
the United States. 1964. Inadvertence, 1715. Incorrigibleness, 2030.
Infamy, I'M I . of If
luhabilita?., 19 lir.liiK tion "I thl
od 1878, 161 f, 14 Irregularity, v- aft I
nral
Irreguiaiitas, relet i i la the
i Irregulares, 19
Judge ad quern, B061 ; appe 3052.
Jurisdiction, 1719; contentions, 1720, 1724; voluntary, 1722 ; ordinary, 1726 ; delegated, L726; loss, B2t8.
Legal Admonitions, 1785. M
Maynooth, synod of, 1856. Metropolitan, 3022 ; in appeals, 3055,
3059. MonitioCanonica, 1971, 2031.
o
Oath in England and Ireland, 1858. Orders, 1925 ; disqualifications, 1926.
Pius IX., Const. Apostolicae Sedis,
3262. Penance, 1665. Pecuniary Fines, 1955; in the United
States, 1962. Praeceptum, 1771, 1789; extrinsic
form, 1797.
38o
Alphabetical Index.
Preventive Remedies, 1666, 1737.
Privatio Definitiva, 1808.
Punishments, repressive, 1656; pre- ventive, 1666; vindicatory, 1656; ordinary, 1685; discretionary, 1688; ferenda? and late sententia1, 1686 ; temporal and spiritual, 1689.
Publication, of sentence, 3021; of cen- sure, 3022 ; aim, 3023 ; mode, 3024 ; appeal, 3027, 3040.
R
Reformative remedies, 1966; char- acter, 1968 ; duration, 1981; grada- tion, 2026.
Release from censures, 3124 ; power, 3124; conditions, 3148; form, 3144; kinds, 3152.
Release ad Cautelam, 3069-3078.
Remedies, preventive, 1730; reforma- tive, 1730.
S
Sentence, personal motives, 2094;
form, 2096-3004; in the United
States, 3005-3011 ; wording, 3019;
publication, 3021. Spiritual Exercises, 1742. Strangers, punishable, 2018. Suffrages of the Church, 3208. Summaria facti Cognitio, 1747,
1750. Support, of dismissed Ecclesiastics,
1859; suspended, 1874; source,
1879.
Suspension, 3282 ; nature, 3286 , kinds, 3291; ab officio, 3294: a beneticio, 3295; effects, 3296, publication, 3300 ; violation, 3307.
Suspensive appeal, 3046, 3051.
T
Third Plenary Council of Balti- more, 1676, 1740, 1773, 1861, 1878, 2055 sq.
Transfers, 1882 ; kinds, 1883 ; causes, 1884 ; form, 1884.
Transfer of irremovable rectors, 1885 ; causes, 1887 ; form, 1890 ; trial, 1894 sq.
Transfer of removable rectors, 1895 ; decision S. C. de Prop. Fide, 1895 ; causes, 1896 ; to an inferior place, 1897 ; for merit or demerit, 1898.
Travellers, punishable, 2015 sq.
Trial, ecclesiastical, 1825, 2065 ; obli- gation, 2067; form, 2078-2080; in the United States, 2081 ; in Ire- land and England, 2083.
u
Unjust Censures, 3093.
V
Vindicatory Punishments, 1805 sq. Violation of censures, 3117 ; penalties,
3118 sq. Violence, 1716.
w
Warnings, canonical, 1674, 1697 ; necessity, 2047 ; three, 2054, 2061.
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