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 CENSURES

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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,