CENSURES
530
CENSURES
ascertained from the terms in which it is couched.
The expressions most commonly used in the censure
later sentential are: ipso facto, ipso jure, eo ipso sit
excommunicatus, sciat se esse excommunicatum, etc.
If, however, the expressions are of the future and
imply judicial intervention, the censure is ferendee
sentential, e. g. excommunicetur, suspendatur, sus-
pendetur, etc. In doubtful cases the censure is
presumed to be ferenda: sentential, because in penal
matters the more benign interpretation is to be
followed. Moreover, before the infliction of the
latter kind of censures three warnings (monitiones)
are necessary, or one peremptory warning, except
when both the crime and the contumacy of the delin-
quent, are notorious and therefore sufficiently proved.
Censures are again divided into reserved and non-
reserved censures. As sins may be reserved, so also
may censures, reservation, in this case, being equiva-
lent to limitation or negation of an inferior's juris-
diction to absolve from the censure, and the retention
of this power by his superior. (See Reservation.)
Requirements for Censures. — For the infliction
of censures, either a jure or ab homine, are required:
(1) Jurisdiction in the legislator or in the judge; (2)
sufficient cause; (3) correct method of procedure. —
As to jurisdiction, since censures belong to the forum
externum, or external government of the Church,
it necessarily follows that for their infliction, either
by law or by judge, jurisdiction or power to act in this
forum is required. Sullieieut cause, moreover, must
be had for the infliction of a censure. A censure,
as a sanction of the law, is an accessary to the law;
therefore a substantial defect in the law, e. g. injustice
or unreasonableness, nullifying the law, nullifies also
the censure attached to the law. This sufficient
cause for a censure may be lacking in the law, either
because in its formation the legal order was not ob-
served, or because the fault considered in the
law was not sufficiently grave to justify the
penalty of ecclesiastical censure. The penalty
must be in proportion to the crime. If in the
legislative act the legal order was observed, but
the proportion of punishment to crime was lacking,
i. e.. if the offence did not justify the extreme penalty
attached to the law, then, as the law has two parts,
it is sustained in the first part. i. e. the precept, but
not in the second, i. e. the penalty or censure (Suarez,
Disp. IV, sect. VI, n. 10). In doubt, however, both
law and penalty are presumably valid. As to the
correct method of procedure, a sentence of censure
may be void if any substantial rule of procedure
be not observed, e. g. the warnings in a censure
inflicted ab homine. The censure is valid, how-
ever, if there be any objective proportion between
the gravity of the penalty and the gravity of the
fault, even if the sentence have some accidental
defect, e. g. a censure inflicted through hatred for a
person, who, however, is a transgressor, or if some
other accidental rule of procedure has not been
observed. A question arises concerning censures
invalid in foro interno or according to truth, but
valid in foro externo or according to presumption of
law. For instance, a person is convicted in foro
externo of a crime to which a censure is attached,
but in his conscience he knows himself to be innocent.
\\ hat are the effects of a censure thus inflicted?
Having been found guilty in foro externo, the censure
has valid effects in that forum and must lie observed
externally, to avoid scandal and for good discipline.
Ml aets of jurisdiction in foro exU rno of such a cen-
sured party might be declared invalid. But in foro
interno lie would possess jurisdiction, and, should
there be no danger of scandal, he could act as though
uncensured without incurring the penalty of violat-
ing a censure, e. g. irregularity. A censure may also
be inflicted conditionally; if the condition is fulfilled
the censure is valid.
Can censures be inflicted as vindictive penalties,
i. e. not primarily as remedial measures, but rather
to avenge a crime? This is a graver question and
canonists have sought to solve it by an interpreta-
tion of certain texts of the law, chiefly from the
"Decretum" of Gratian (Eos qui rapiunt, Raptores. —
Caus. XXXVI, Q. 2, c. 1, 2, and Si quis episcopus,
Caus. XXVII, Q. 1, c. 6, etc.). These laws, however,
contemplate the earlier discipline of censures, when
the name was applied to punishments in general,
without any specific signification. It is evident,
therefore, that the solution must now be sought in
positive law. In the law of the Decretals no express
decision of the question is to be found, although the
species of penalties are there more accurately
distinguished. In later law the Council of Trent
(Sess. XXV, c. iii, De ref.) most wisely warns bishops
that the sword of censures is to be used only with
sobriety and with great circumspection. Censures,
being essentially a deprivation of the use of spiritual
goods or benefits, are to be inflicted medicinally,
and should therefore be lifted as soon as the de-
linquent recedes from his contumacy. We have
seen above that St. Alphonsus and other authors
after him, hold that secondarily, a censure may
have a punitive and deterrent motive, and from
that point of view, may be inflicted for a given
time. Generally speaking, therefore, censures can-
not be inflicted as vindictive punishments, for
a certain time, but must be inflicted indefi-
nitely, i. e. until the delinquent repents. This is
generally speaking, for while it is certain that
excommunication can never be thus inflicted as
a vindictive punishment, suspension and interdict
can be inflicted, rarely and for a short period, as vin-
dictive penalties by positive law. The reason of this
is that suspension and interdict do not, like excom-
munication, cast out the delinquent from the com-
munion of the faithful, neither do they deprive him
absolutely of all spiritual goods; they may, therefore,
for grave reasons take on the nature of vindictive
penalties. This is especially true when their effect
is the privation of some temporal right, e. g., when
a cleric is suspended from his office or benefice; for
whenever censures deprive primarily of the use of
temporal goods, they are rather punishments properly
so called than censures, whose primary character
is the deprivation of the use of spiritual goods
(Suarez, op. cit., Disp. IV, sect. V, 29-30).
Subject of Censures, Active and Passive. — As regards the active subject of censures, i. e. who can inflict them, it must be stated that censures belong to the external government of the Church. They can therefore be inflicted only by those who have proper jurisdiction in the external government of the Church (forum externum). Censures a jure, i.e. incorporated in laws binding Christian society, in whole or in part, can be passed by him who has power to thus legislate. Thus the pope or a general council can inflict such censures upon the whole world, the Roman congrega- tions in their own spheres, the bishop within his dio- cese, the chapter or vicar capitular during the va- cancy of a see (sede vacante), regular prelates having external jurisdiction, legates of the Holy See. also chapters of regulars over their own subjects. Parish priests, abbesses, and secular judges, however, have no such power. Censures ab homine or inflicted by an ecclesiastical judge, whether his jurisdiction be ordi- nary or delegated, can he inflicted to enforce a cer- tain law or to prevent certain evils. Vicars general and delegated judges not having legislative power
cannot inflict censures a jure, but only ub homine, in order to assert and protect their power, e. g. to en- force the execution of a judicial decree. In respect to the passive subject of censures, i. e. who can be censured, it must be noted that censures, being spir- itual punishments, can only be inflicted on Christ ians,
